The Republican choice for Congress in Missouri's 8th District may be nominated, if all goes according to plan, by secret ballot.
Whether a secret ballot is legal under Missouri's open-meetings laws is up for debate.
The 8th District Republican Committee has taken the position that any interpretation of the secret ballot's legality is moot. The committee argues it is not defined as a public body and therefore immune to the Sunshine Law.
"We have examined the law and the cases, and we feel that's what law compels," said Harvey Tettlebaum, an attorney representing the Missouri Republican Party. "Because it's a much more complicated issue than it appears on its face, because it implicates federal constitutional protections and Supreme Court decisions, so it's not just a question of [Section 610 of the Missouri Sunshine Law], it's a question of what the courts have allowed political parties to do, and how they regard political parties. We've done extensive research on it, so we feel pretty comfortable that political parties are not public governmental bodies."
Eddy Justice, chairman of the 8th District Republican Committee, said the group is basing its rules for casting ballots on the most recent version of Robert's Rules of Order, which lays out parliamentary procedures for legislative bodies and other types of assemblies, unless those rules conflict with state statute or the committee's own rules.
Legal opinions differ about whether the congressional district committees -- regardless of political affiliation -- are public bodies.
The position at stake is vacant because of Jo Ann Emerson's resignation last month. The 8th District committees are comprised of the chairs and vice chairs of county and house district committees.
Missouri's election laws contain a section pertaining strictly to political party committees with language that lays out their purpose and selection of members. Also written is when, where and how committees shall organize and meet. Statutes allow adoption of bylaws, or a constitution, or both.
The Missouri Sunshine Law requires public governmental bodies to abide by certain rules, including one that mandates all votes shall be recorded. While not explicitly listed as a public body in the statute, past legal opinions indicate that political committees are subject to open-meeting requirements of the Sunshine Law.
The 8th Congressional District's Republican committee will nominate its candidate during a meeting Feb. 9. Based on the voting history of the district, that nominee likely will win a June special election to fill the vacancy.
Jean Maneke, attorney for the Missouri Press Association, does not believe there is any provision in Missouri law that allows a public body to conduct a secret ballot in an open meeting. She maintains that political parties are public governmental bodies. Several past opinions by a former Missouri Attorney General have directed that any vote that is made in a public meeting cannot be done legally by secret ballot.
Republicans plan to hold an open meeting, following rules set out by the Sunshine Law, according to Justice. But he said the committee will not budge on the use of a secret ballot.
Justice said Roberts Rules of Order allow the chair to use discretion about whether to allow the use of a secret ballot during voting for nominees. Disclosing individual votes of members would be a violation of the committee's rules as proposed and outlined in the book, he said.
Potential replacements for Emerson will be present at the GOP meeting. Those nominated by a committee member will be allowed three minutes to speak.
"I think if you talk to anybody on the committee, they are going to agree that they prefer a secret ballot in order to ensure everybody votes with their conscience rather than pressure being applied to them," Justice said.
J.P. Clubb, a Cape Girardeau attorney who once worked in the Missouri attorney general's office and helped write opinions on Sunshine Law matters, believes it applies to political committees.
He interprets the law as stating secret ballots are a violation. He said either political party would be putting its nomination at risk if the Sunshine Law is not followed.
Clubb understands casting a public vote may be "hard to do. But the risk is, if you don't follow it, is any resident in Missouri has standing to bring a lawsuit. A Democrat from Kansas City or St. Louis who wants to throw a huge monkey wrench into things could do it," he said.
Clubb added that Sunshine Law challenges often seek to "undo" actions. He said even if fast-tracked, a Sunshine Law suit could take up to three months to go to the Missouri Supreme Court.
"I think that's a huge risk, and I think the risk is not worth it," Clubb said.
A self-described advocate for government transparency, Clubb said it makes sense for those being tasked to decide for the primary voting public, for there to be some level of accountability.
Tettlebaum argues no court decision specifically addresses the question of whether the Missouri Sunshine Law applies specifically to political parties.
"There's no case one way or the other," he said while adding that research and analysis on the subject instead must be applied. He noted that similar issues have arisen, such as the question of how much control state legislatures can exercise over political parties.
"In those cases, the Supreme Court has basically said that there's a limitation on what states can do; that political parties are free under the First Amendment to conduct their affairs the way they want to conduct them.
When you look at all those cases, it's our belief that a court would find the Sunshine Act doesn't apply to political parties, because other legislative schemes have been found not to," Tettlebaum said.
Justice said the same privacy that applies to votes cast by citizens during any election should be considered when looking at the committee's ability to vote by secret ballot.
Details of voting plans for the Democratic Congressional committee during a meeting set for Feb. 16 are not known. Committee chairwoman Cindy Jenks was reached by phone Thursday. She asked that questions about the matter be sent to her by email. There was no response by late Thursday to an email from the Southeast Missourian.
A Libertarian committee will vote to nominate a candidate by the chair of the committee reading the names of the nominees one at a time.
Members of the committee may cast a vote for a candidate by raising their hand, according to nominating rules provided by committee chair Rick Vandeven. Libertarians will meet at 1 p.m. Feb. 9 at the Scott County Courthouse.
The Republican committee thus far has been transparent in actions related to the nomination. It held two public forums featuring candidates and opened all committee meetings to the public.
Justice called the plan to use a secret ballot "well within our prerogatives."
"We will make every action by this committee public, however, the individual maintains the right to a secret ballot," he said. "We will make the meeting public, we will make the result of each vote public as far as the numbers and who got how many votes, and the result of the nomination process public."
Justice said unless he is advised by attorneys not to use a secret ballot, the committee will proceed with its plans.