Board of Election Commissioners v. Knipp

ROBERTSON, Judge. This case involves an election contest brought by the Board of Election Commissioners of St. Louis County (“the Board”). The dispositive issue asks whether the Board has authority to seek a new election through an election contest. We hold that Section 115.600, RSMo 1986, limits the remedies available to the Board to filing a petition for a recount. We hold that the circuit court was without jurisdiction to order a new election. The judgment of the circuit court is reversed. I. On April 4, 1989, the Board conducted the municipal election for membership on the city council of the City of Ferguson, Missouri. The incumbent, Michael Knipp, received two hundred thirty-one votes and the declared write-in candidate, Douglas Nute, received two hundred seventeen write-in votes. Many persons desiring to vote for Nute affixed an adhesive sticker bearing only Nute’s name to the secrecy envelope. The Board counted these “sticker” write-in votes for Nute, but disqualified an additional fourteen write-in votes ostensibly cast for Nute because election judges had inadvertently separated the secrecy envelopes from the ballot cards. Under normal procedure, the ballot card which bears the [798] “punch outs” the computer reads as votes is inserted in a secrecy envelope. Both are deposited by the voter in a ballot box. The separation of the ballot card from the secrecy envelope prevented election officials from checking for overvotes. An overvote occurs when a voter attempts to cast a vote for a write-in candidate by affixing a proper sticker or writing the name of a write-in candidate on the secrecy envelope and also casts a vote for another declared candidate for the same office on a ballot card. The Board “disqualified” a fifteenth write-in ballot found the day following the final counting of the votes in a warehouse in which election officials store the election equipment. After disqualifying these fifteen ballots, the Board certified Knipp as the winner. The fourteen separated ballots, if counted for Nute, would tie the election; the fifteenth “late” vote, if counted for Nute, would change the election result and make Nute the winner. Aware of the errors committed by the election judges, the Board petitioned the circuit court for a new election. The petition averred that the election judges erroneously separated fifteen write-in ballots cast for Nute as marked on the secrecy envelopes from the ballot cards. The petition further alleged that this error required the disqualification of those fifteen ballots and east doubt on the validity of the election. The Board asked the court to “order a new election.” Knipp filed a counterclaim averring that a number of ballots counted for Nute should have been disqualified because (1) the printed adhesive stickers affixed to the secrecy envelopes are insufficient to constitute proper write-in votes and (2) some write-in envelopes did not contain an “X” in the appropriate box and should not be counted. Nute filed only an answer and asked the Court to declare him the winner. The trial court found that “the irregularities [of the election judges] affected the outcome of the election such that a true and accurate count of the ballots cast cannot be had,” and ordered a new election. Knipp appealed. A divided panel of the Court of Appeals, Eastern District, affirmed. We granted transfer. II. Section 115.600, RSMo 1986, states: The election authority, if convinced that errors of omission or commission have occurred on the part of the election authority, election judges, or any election personnel in the conduct of an election, may petition the circuit court for a recount in the same manner as any candidate for office or voter in an issue election may petition for a recount. (Emphasis added). The right to contest an election exists by virtue of statute; it is not a common law or equitable right. State ex rel. Jackson County v. Waltner, 340 Mo. 137, 100 S.W.2d 272, 275 (banc 1936). See also State ex rel. Wilson v. Hart, 583 S.W.2d 550, 551 (Mo.App.1979) (“[T]he right to contest an election exists only as defined by statute, and the jurisdiction of the circuit court is confined to those statutory provisions governing election contests.”) The relief a court may grant is limited to that specifically authorized by statute. Hockemeier v. Berra, 641 S.W.2d 67, 68 (Mo. banc 1982). The election law provides two remedies in an election contest when irregularities are shown: Section 115.583, RSMo 1986, permits the circuit court to order a recount; Section 115.593, RSMo 1986, authorizes the circuit court to order a new election. A recount is authorized where irregularities affect only the result of an election. Section 115.583 provides that the circuit court may order a recount where there is “a prima facie showing of irregularities which place the result of any contested election in doubt.” While the conduct of an election obviously affects its outcome, the “result” of an election is the official announcement of the winning candidate. A new election, however, is a more drastic remedy, reserved for those situations in which the court finds “there were irregularities of sufficient magnitude to east doubt on the validity of the initial election.” Section 115.593, RSMo 1986. A [799] new election tosses aside the aggregate of the citizens’ votes, both those properly and improperly cast, and for that reason, a new election remedy is appropriate where the validity of the entire election is under suspicion, not simply the result of the election. See Nichols v. Reorganized School District No. 1 of Laclede County, 364 S.W.2d 9, 13 (Mo. banc 1963) (distinguishing between validity of election as a whole and the legality of individual ballots or category of votes). Section 115.600 permits the election authority to petition for a recount “in the same manner as any candidate for office or voter in an issue election_” Section 115.-600 does not, however, confer upon the election authority the same breadth of remedies available to a contestee. Instead, the legislature chose to limit the election authority’s prerogative to a petition for a recount by express statutory language. This statutory language controls the jurisdiction of the court and limits the remedy it may grant to an election authority. The Board’s petition therefore fails to state a claim upon which relief may be granted. The trial court ordered a new election. Because Section 115.600 permits the Board to seek, and by inference the court to grant, no more than a recount, the trial court was without jurisdiction to order a new election. Commercial Bank of St. Louis County v. James, 658 S.W.2d 17, 21 (Mo. banc 1983). III. The judgment of the trial court is reversed. HIGGINS, COVINGTON and BILLINGS, JJ., concur. RENDLEN, J., dissents in separate opinion filed. FLANIGAN, Special Judge, dissents in separate opinion filed. BLACKMAR, C.J., dissents and concurs in dissenting opinion of RENDLEN, J. HOLSTEIN, J., not participating because not a member of the Court when the case was submitted.