A Tale of Two Prepositions

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.

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Copyright 8/2/16 by Bruce C. Cohen

Permission granted for reproduction with proper attribution.

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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.