A large majority of Jackson County voters have cast ballots to recall County Executive Frank White Jr. Preliminary results from Sept. 30 reveal 85% of voters supported the recall.
The open question is whether those results will stand up against ongoing legal challenges.
As soon as the vote is certified, White’s position will be considered immediately vacant and the campaign for the next county executive — which has been quietly happening behind the scenes for weeks — will kick into high gear.
But it’s possible that the election result may not be certified soon.
You may have noticed that this year’s recall election was scheduled for an unusual September election date — instead of the normal schedule in early April, June, August or November. (Special bond elections sometimes happen in February, as well.)
Elections are almost always on those regularly scheduled election days.
That could explain why voter turnout was relatively low. White was voted out of office yesterday by just 16% of Jackson County voters — compared to the 48% that turned out in the 2022 general election where White won reelection. In Kansas City specifically, turnout for the Frank White recall was even lower at 11%.
White and the Kansas City and Jackson County election boards argue that a Sept. 30 election is not just unusual, but illegal. And that could spell doom for the recall vote if a judge agrees with them.
A judge initially set the Sept. 30 date as a compromise with the recall campaign, which initially wanted to set the date for Aug. 26. The election boards argued in court that scheduling an August election on such short notice would disenfranchise military and overseas voters, who would not have received their ballots in time.
Now, White’s lawyer is asking the Missouri Supreme Court directly to stop the election boards from certifying the vote until they hear the case.
Here’s how that could affect Tuesday’s vote.
Why did the election boards sue to reschedule the election?
The Jackson County Legislature initially ordered the election to be held on Aug. 26 after approving the ballot language in early July.
That’s based on a requirement set by an ordinance in 2023 that a special recall election be held within 60 days after signatures are filed.
But both the Kansas City Election Board and the Jackson County Election Board objected.
Those offices, which operate independently from White and the rest of county government, said that wasn’t enough time to prepare an election.
Military ballots would have needed to be mailed out just days later, and the boards would have had only about a week to prepare for absentee voting to begin.
DaRon McGee, chair of the county Legislature, was not sympathetic. McGee is one of the candidates vying to replace White now that he has been recalled.
“I am deeply concerned by reports that this election may not move forward on the timeline the law requires,” he told KCUR in a statement at the time. “The Legislature has done its part. We now look to the executive branch and the election board(s) to fulfill their roles.”
So the election boards sued.
They argued that Missouri law only allows counties to schedule elections on regular election days — in February, April, August or November, unless otherwise specified in a city or county charter. The Aug. 5 election was already underway, so they asked a judge to reschedule the election for Nov. 4.
Notably, every countywide Jackson County election for the past 27 years has occurred the Tuesday after the first Monday of February, April, August or November.
The same generally goes for elections in Kansas City, which also schedules City Council elections in April and June under the city’s charter. The only recent exceptions were elections related to the streetcar in October 2017, December 2012 and on a Friday in August 2008.
The Jackson County circuit judge, Marty W. Seaton, ultimately disagreed with the election boards.
He said that Missouri statute carves out an exception for elections that are authorized by a county’s charter. He argued that meant the 2023 Jackson County ordinance allowed a recall to happen outside of those dates in order to meet the 60-day requirement.
But he said an Aug. 26 election would still be too soon because military and overseas voters wouldn’t get their ballots in time, which would be unconstitutional. So he set a compromise date of Sept. 30.
The legal battle continues
The election boards wanted to appeal, but a procedural move made that impossible.
Weeks earlier, while the case was playing out, White joined the lawsuit, arguing that the recall petition signatures themselves were illegal because some of the signature gatherers were not Missouri residents.
The judge heard arguments on the election date, but he set aside the issue of the out-of-state signature gatherers.
And because that issue remains unresolved, Seaton has not certified his ruling yet. That locked the election boards out of immediately appealing to a higher court.
So on Sept. 26, White’s lawyers tried a different maneuver.
They filed a lawsuit directly with the Western District Court of Appeals asking it to postpone the election until November because the election boards have not been able to appeal the circuit judge’s interpretation of the law.
“The election is imminent, and the trial court refused to certify its ruling for appeal,” White’s lawyers wrote. “Unless this Court intervenes, an unlawful election will proceed, wasting taxpayer resources, confusing voters, and undermining public confidence in Missouri elections.”
If this legal precedent stands, they argued, it would waste taxpayer dollars and confuse voters. If Jackson County can set an election for any day of the year, voters who are less tuned in to county politics may not even know that they’re missing an election.
The judge at the Western District Court of Appeals declined to take up the case. So now they’re taking it to the Missouri Supreme Court.
White’s lawyers filed a lawsuit against Seaton, the Jackson County circuit judge, just hours before the polls closed on Sept. 30, arguing that the election was illegally scheduled. They argued that proceeding with the election before the legal challenges are resolved would create chaos and distrust.
“Once results are released, the damage to public confidence cannot be undone,” the lawyers argued in their lawsuit filed with the Missouri Supreme Court. “Securing ballots until this Court resolves the legal issues preserves the integrity of both the vote and the judicial process.”
Phil LeVota, an attorney representing the recall effort in court who is also a candidate to become county executive if White is recalled, believes that Seaton’s ruling is strong enough to hold up in an appeal.
“He made a pretty good order where he really cited a lot of case law,” he said. “The charter says 60 days, and I’m going to err on the side of getting it in front of people sooner than later. And there’s no downside to having (the election) on Sept. 30.”
But White’s lawyers point to a 2002 precedent when a court ruled that a “floating timeframe” (like the 60-day requirement set by the 2023 ordinance) does not qualify as a specific election date authorized by law.
Could the election outcome be reversed?
The Jackson County Circuit Court judge believes that the Sept. 30 election date was legal. But no other judges have given a legal opinion to back it up.
There are still a couple of legal avenues for White and the election boards to challenge the results.
The first option is the most recent Missouri Supreme Court case. White asked the judge to prevent the election boards from certifying the election results until the legal questions are resolved. That would keep White in office as county executive until the judges decide whether the election was legal.
The second option is that the election boards appeal the case once the circuit judge certifies his ruling. At that point, the Western District Court of Appeals — and potentially the Missouri Supreme Court — would hear the case and decide whether Seaton was correct in setting the election for Sept. 30.
The third option is for White to challenge the election results by suing the election boards. He could argue that there is reason to believe the election was unlawfully administered, and he could cite the election boards’ own argument in court earlier this year that Sept. 30 was not a legal date for an election.
If any of those judges decides that Sept. 30 was an illegal date to hold an election, the court could order another election for a redo. At this point, that likely would not happen until April 2026.
This wouldn’t be the first time that a ballot question had to go to voters for a redo.
In November 2022, Missouri voters voted on a constitutional amendment to force Kansas City to increase its level of police funding from 20% of its budget to 25%.
That constitutional amendment, put on the ballot by the Missouri General Assembly, passed by a wide margin — nearly two-thirds of Missourians voted “yes.”
But then the Missouri Supreme Court ruled that the ballot language was misleading. So a judge struck down the measure and ordered a new election with updated ballot language.
It still passed, but by a much smaller margin — by about 24,000 votes, or 2.2%.
With these legal questions looming, a messy scenario rests on the horizon.
Imagine that the election boards certify the vote later this week or next week. The county executive position is vacated, and the county Legislature appoints a replacement.
Meanwhile, the appeals court or the Missouri Supreme Court takes up White’s case about whether Sept. 30 was a legal date to hold an election.
And suppose they rule in White’s favor — that elections must be scheduled only on days that are specifically outlined by Missouri statute or the county charter.
That would mean that legally, White never should have been removed from office. And Jackson County would then have two county executives.
LeVota believes the circuit judge’s ruling is compelling enough that an appeals court or the state Supreme Court would back it up. But he acknowledged the possibility of a political crisis as a result of the ongoing litigation around the recall.
“The appeals court could come back,” LeVota said, “and say, ‘You know what, we don’t think the trial judge was right. We think it should have been a November election. We’re throwing that entire election out, and we’ll have to do a new one.’ That could definitely, definitely happen.”
This story was originally published by the Beacon, a fellow member of the KC Media Collective.
