concurring in part and dissenting in part:
I concur with the majority regarding the issues of the timeliness of election petition (part II of the majority opinion), laches (part III), uninitialed ballots (part IV), missing ballots (part V), and section 7— 63 of the Election Code (part VI). However, I must respectfully dissent from the majority’s conclusions relating to mootness (part I) in determining who shall succeed to the judicial vacancy which is the subject matter of this appeal.
The Illinois General Assembly has provided that an election judge’s initials shall be endorsed upon each ballot (Ill. Rev. Stat. 1989, ch. 46, par. 7—44), that ballots without such endorsement shall not be counted (Ill. Rev. Stat. 1989, ch. 46, par. 7—51), and that in examining the ballots at the close of the polls, the election judges shall mark each uninitiated ballot as being “defective” (Ill. Rev. Stat. 1989, ch. 46, par. 24A—10.1). The majority notes that there is a clear line of authority which seemingly holds the ballot-initialing requirement to be mandatory and that an uninitiated ballot will not be counted.
The majority, however, observes that in Pullen and Craig the supreme court held that the initialing requirement was directory rather than mandatory if the ballots in question could be identified and distinguished from other ballots so that other factors might be considered in determining the integrity of the election process. Pullen v. Mulligan (1990), 138 Ill. 2d 21, 561 N.E.2d 585; Craig v. Peterson (1968), 39 Ill. 2d 191, 233 N.E.2d 345.
Pullen carves out an exception to the statute as to uninitiated absentee ballots distributed from the central election department of the county clerk and identified differently than in-precinct ballots, so that the integrity of the election process could be preserved even if uninitiated absentee ballots were counted.
The cutting edge of Pullen was the court’s recognition of the proper purpose of the mechanics of election and giving effect to the voters’ will in certain instances even though there had not been strict compliance with statutory provisions of the Election Code.
In the instant case, the parties have stipulated that no fraud was present and none alleged. Moreover, the record, as well as the majority opinion, indicates that the parties acted in good faith and attempted to have their rights litigated in a timely fashion.
In the 1990 general election, Williams was elected by more than 163,000 votes.1 However, the trial court on the eve of election ordered the Chicago Board of Election Commissioners to suppress the results of the election and at the time of the proclamation of the results stated: “PROCLAMATION WITHHELD DUE TO COURT ORDER.”
Shall we disenfranchise hundreds of thousands of people that voted in the general election because of the technical errors of a few election clerks during the primary with reference to a tiny percentage of the ballots counted? We must weigh the rights of the voters in the general election with those interests of the voters in the primary.
Judicial offices are at the “bottom” of the ballot. Can we imagine what the majority’s decision might be if the election involved the governor of our State? At the same 1990 primary election, then Secretary of State Jim Edgar was opposed in the Republican primary. Had the Secretary of State and his primary opponents been engaged in the same kind of vote count as the parties here, can anyone imagine that the then Secretary of State Edgar and Attorney General Neil Hartigan, the nominees of the Republican and Democractic parties respectively, would have each spent $8 million or $9 million in the promotion of their candidacies where the court might determine afterwards that it was all an exercise in futility?
Bartos v. Chicago Board of Elections (1989), 191 Ill. App. 3d 937, 548 N.E.2d 431, provides us with the precise kind of treatment these issues might receive if the office were at the “top” of the ballot rather than the “bottom” of the ballot. In Bartos, plaintiff sought to file an intent to be a write-in candidate of the Solidarity Party for the office of mayor of the City of Chicago at the 1989 special mayoral election. The Board of Election Commissioners denied the request based on its untimeliness and the plaintiff appealed. While the case pended in the appellate court, the 1989 mayoral primary election passed, as did the 1989 mayoral general election and the winner of that election was proclaimed and installed as mayor.
The appellate court in Bartos held that the plaintiff’s right to have his filings accepted for the February 28, 1989, primary had ceased to exist after the election was held and that his cause was then moot. The majority here answers Bartos by suggesting that it is the trial court’s suppression of the announcement by the Board of Election of the election results that takes the case at bar out of the deep well of mootness. Just as the Bartos court was unwilling to order a new mayoral election to allow Mr. Bartos to assert his candidacy, we should similarly lay this matter to rest.
For the reasons expressed, I would carve out an additional exception to that provided in Pullen. In the absence of fraud or bad faith and where the record does not reveal that the adverse party has delayed the process, I believe the results of the general election should be given effect in order not to disenfranchise hundreds of thousands of voters in that election, notwithstanding the technical defects in a few primary ballots.
If the parties are innocent victims of the process, where does fault lie? As with Brutus, fault lies not in our stars but in ourselves. (William Shakespeare, Julius Caesar act I, sc. 2.) Illinois primaries are held 71/2 months before the general election, which should be ample time for our election tribunals and our courts to resolve primary election contests.
Consider that some States have a mere seven weeks between primary and general elections. Whether by new legislative initiatives or supreme court rule, we should consider development of summary and expedited procedures to insure that the will of the electorate is not again frustrated.
I appreciate the effort to guarantee individual and constitutional rights of each voter by giving de jure recognition to James H. Williams to continue to serve in the office of judge of the circuit court of Cook County until resignation, retirement or failure to be retained and I concur as to part VII providing equitable relief.
In the 1990 general election, voters elected two other judicial officers from the same geographical area as this contested vacancy. In those races, the Democratic candidates averaged 446,000 votes each. Illinois State Board of Elections, Official Vote Cast at the General Election November 6, 1990.