AUGUST
2, 2016
FOR
IMMEDIATE RELEASE:
A TALE OF TWO PREPOSITIONS OR WHY REPUBLICANS WILL
SWEEP ALL STATEWIDE ELECTIONS IN NOVEMBER, UNLESS…
By
Bruce C. Cohen
This
is the tale of two tiny prepositions, “to” and “by”. Between them, they have
the power to decide all statewide elections this November. As it stands today,
“to” is winning which means that if nothing changes between now and the
November elections, Republicans will sweep all statewide contests.
There
are 115 counties (including St. Louis City) in Missouri. The election
authorities for these counties is established in Missouri Revised Statutes
Section 115.015 which provides, “The county clerk shall be the election
authority, except that in a city or county having a board of election
commissioners, the board of election commissioners shall be the election
authority.” Section 115.017 establishes
the counties where a board of election commissioners can operate. Six counties
qualify, including St. Louis County, St. Louis City, Kansas City, Clay County,
Jackson County and Platte County. According to the Official Manual State of Missouri
2015-2016,
as of 2014, these six counties had a total of 1,647,478 voters out of a
statewide total of 4,081,259, comprising approximately forty percent of the
electorate.
In 109 of 115 counties, the county
clerk serves as the election authority. In the other six counties listed above,
however, a board of election commissioners serves as the election authority.
The problem is, these six boards of election commissioners have no
constitutional authority to act. Missouri Constitution Art. IV, Section 12
provides in relevant part, “Unless discontinued all present or future boards… of the state
exercising administrative or executive authority shall be assigned by law or by the governor as provided by law to
the office of administration or to one of the fifteen administrative
departments to which their respective powers and duties are germane.” (Emphasis
added) On its face,
this section applies to “all” executive branch boards without exception,
including boards of election commissioners. This is where the preposition “by”
comes into play. Boards may be assigned “by” law or “by” the governor as
provided “by” law.
Nothing in Missouri Revised Statutes
Chapter 115 assigns the boards of election commissioners by law to the office
of administration or to an executive branch department as required by Missouri
Constitution Art. IV, Section 12. Accordingly, the responsibility for assigning
these boards falls on the governor. The law providing for assignment of a board
by the governor is the Omnibus State Reorganization Act of 1974, Missouri
Revised Statutes Appendix B (hereinafter “OSRA”). Under the OSRA, if a board is
not assigned by law to the office of administration or a state executive branch
department, then the governor may assign the board. All it takes is a one page
letter. It is so simple, even John Ashcroft could do it (see e.g. EXECUTIVE ORDER 86-03).
This is where the preposition “to” comes into play. Unfortunately, no governor has ever assigned
the six boards of election commissioners “to”
the office of administration or an executive branch department. The Official
Manual State of Missouri 2015-2016, at page 871
lists
the six boards of election commissioners as “Boards Assigned to the Governor”. Under Missouri Constitution Art.
IV, Sec. 12, there is no such thing as a “Board Assigned to the Governor”. Boards may be assigned “by” the governor, not “to”
the governor. Until such time as the boards of election commissioners are
assigned “to” the office of
administration or an executive branch department, those boards have no more
authority to conduct election activities than a Wednesday night coed volleyball
league.
In the governor’s election in 2012, Democrat
Jeremiah W. (Jay) Nixon defeated Republican David (Dave) Spence 1,494,056 to
1,160,265. Governor Nixon outpolled Spence 725,825 to 366,058 in the six board
of election commissioner counties: St. Louis 324,748 to
185,704; St. Louis City 117,979 to 19,478, Kansas City 107,474 to 23,806;
Jackson 94,008 to 73,518; Clay 57,962 to 43,398; Platte 23,654 to 20,154. Without
these six counties, Spence won 794,207 to 768,231. Similarly, in the Secretary
of State election, Democrat Jason Kander defeated Republican Shane Schoeller
1,298,022 to 1,258,937. But if you subtract the votes from the six board of
election commissioner counties (Kander 675,103 to Schoeller 382,293), Kander
lost 876,644 to 622,919.
In short, democrats
cannot win a statewide election without the votes from the six board of
election commissioner counties. But without a constitutional election
authority, the forty percent of the Missouri electorate residing in those six
counties are disenfranchised. Their votes cannot be counted.
There are two ways to return the franchise to the voters in the six affected counties. First, Governor Nixon could assign the boards of election commissioners to the office of administration or an executive branch department in accordance with Missouri Constitution Art. IV, Section 12 and the OSRA. Second, the legislature could assign the boards by a new law. Unless one of these two things happen, Republicans have already swept the statewide elections in November. All that is left is the final paperwork.
There are two ways to return the franchise to the voters in the six affected counties. First, Governor Nixon could assign the boards of election commissioners to the office of administration or an executive branch department in accordance with Missouri Constitution Art. IV, Section 12 and the OSRA. Second, the legislature could assign the boards by a new law. Unless one of these two things happen, Republicans have already swept the statewide elections in November. All that is left is the final paperwork.
******************
Copyright 8/2/16 by Bruce C. Cohen
Permission granted for reproduction with proper attribution.
*****************
Bruce C. Cohen and Doni R. Miller are currently
challenging the 2014 elections for St. Louis County Executive and Prosecutor at
the Missouri Supreme Court, CAUSE NO. SC95793. Electronic copies of Appellants’
Brief are available upon request at bccohen1@earthlink.net.
