dissenting:
I respectfully dissent.
The provisions of the Election Code are designed to protect the integrity of the electoral process. Welch v. Johnson, 147 Ill. 2d 40, 56 (1992). There is no dispute that the provisions in section 28 — 3 are mandatory. A mandatory provision is one that will describe the consequences of failing to follow its provisions (Johnson v. Theis, 282 Ill. App. 3d 966, 972 (1996)), and the conduct is prescribed in order to safeguard a person’s rights, which may be injuriously affected by a failure to act in the manner specified. Shipley v. Stephenson County Electoral Board, 130 Ill. App. 3d 900, 903 (1985). The failure to follow a mandatory provision renders the proceeding to which it relates illegal and void. Serwinski v. Board of Election Commissioners, 156 Ill. App. 3d 257, 259 (1987).
Essentially, the majority here believes that even though this is a mandatory provision, the substantial compliance with this provision negates the defective petition. The majority accepts the theory of substantial compliance with mandatory provisions and reaffirms the recent appellate court decision in Brennan v. Kolman, 335 Ill. App. 3d 716 (2002).
I, however, believe that the Illinois Supreme Court’s decision in DeFabio v. Gummersheimer, 192 Ill. 2d 63, 66 (2000), is controlling. In Gummersheimer, the supreme court rejected the use of the substantial compliance theory for mandatory provisions in the Code. I believe that Gummersheimer held that substantial compliance is no longer sufficient and a mandatory provision of the Election Code must be enforced even if the parties agree there is no knowledge or evidence of fraud or corruption.
The petitions in this case contain two significant irregularities, and I believe that the majority errs when it dismisses these problems through its substantial compliance analysis.
First, the Election Code expressly requires that each petition contain a statement that to the best of his or her “knowledge and belief’ the signers are registered voters of the appropriate political subdivision. 10 ILCS 5/28 — 3 (West 2000). The petitions at issue, however, merely state the circulators’ “belief’ that the signers are registered voters. Although the majority dismisses this distinction with its substantial compliance analysis, I believe that the lack of the word “knowledge” is highly significant. I believe the use of the word “knowledge” is calculated to impress on circulators an affirmative obligation to make reasonable inquiry regarding the status of those signing the petition. A circulator attesting only to his “belief’ may mistakenly assume that he may do so even if that belief is unreasonable or has no basis in fact. For example, a circulator might “believe” that every person he encounters outside a grocery store is a resident of the village in which the store is located. Such a belief might mislead the circulator into believing that it was unnecessary to even make a simple inquiry regarding the signers’ residence and undermine the important role envisioned for petition circulators in the Election Code. Accordingly, I would conclude that the failure to include the word “knowledge” in the circulators’ statements renders the petitions invalid.
Second, the petitions are facially invalid because it is impossible to determine whether they were properly signed by the circulators. The purported “signatures” are contained within the jurat of the notary public. These “signatures” may be the actual signatures of the circulators or they may have been completed by the notary who attested to the signatures. It is simply impossible to determine from the face of these documents. The majority would conclude that these signatures were properly made. I, however, am unwilling to do so in the absence of evidence to support such a conclusion. I believe that the requirements of the Election Code are too important to allow this court to judge compliance on little more than guesswork and conjecture. Accordingly, I would hold that, in the absence of evidence that the circulators’ signatures were properly made, the ambiguity in the attestation requires a finding that the petitions are invalid.
Finally, although the discrepancies I have identified above are sufficient to invalidate all of the petitions, I believe that the majority overlooks significant evidence of fraud. The objector identified numerous voter signatures on the petitions that do not match the signatures contained in the voting records. Some signatures are printed rather than written in script, and others are, even to the untrained eye, clearly dissimilar. I believe that the Electoral Board’s and the trial court’s findings that these signatures were valid were against the manifest weight of the evidence.
For the foregoing reasons, I would reverse the judgments of the circuit court and the Electoral Board.