specially concurring:
I join the court’s opinion. I agree with the majority that we have jurisdiction over the present matter, that Susan J. McDunn was the winner of the 1990 primary election at issue here, and that the appropriate remedy under the Election Code was to permit McDunn to run in the 1992 general election for the judicial vacancy she sought to fill. I write separately to add several comments regarding the relief afforded in this matter.
The trial judge in the present case declined to compel the removal of candidate Williams’ name from the 1990 general election ballot but ordered the suppression of the results of that particular election. After determining, in March 1992, that McDunn rather than Williams should be declared the winner of the contested 1990 primary, the trial judge permitted McDunn’s name to appear on the 1992 general election ballot to fill the vacancy at issue here. The actions taken by the trial judge in this case were consistent with the provisions of the Election Code.
As the majority opinion notes, section 7 — 59 of the Code provides that the winner of a primary election is to be “placed on the official ballot at the election then next ensuing.” (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 59.) Candidate McDunn was not declared the winner of the challenged primary until 1992, and placement of her name on the 1992 ballot was within the literal command of that provision. In addition, section 7 — 63 of the Code provides that the court may “make such orders and enter such judgment as justice may require” in resolving primary election contests. (Ill. Rev. Stat. 1989, eh. 46, par. 7 — 63.) Finally, section 2A— 1(e) of the Code authorizes the court to “order another election without regard to the schedule of elections” if the court finds that an election was void. (Ill. Rev. Stat. 1989, ch. 46, par. 2A— 1(e).) Here, the results of the 1990 general election for the vacancy at issue were appropriately suppressed pending a final determination of McDunn’s primary election contest. Once the trial judge determined that McDunn was the actual winner of the 1990 primary, he effectively invalidated the 1990 general election for this position and permitted the matter to be resolved at the 1992 general election. The provisions of the Election Code are sufficient to sustain the remedy fashioned by the trial judge and upheld by this court in today’s decision.
One of the dissenting justices, however, concludes that neither candidate is entitled to fill the vacancy at issue here: not Williams, because he was not the winner of the 1990 primary, and not McDunn, because she was not the winner of the 1990 general election. Thus, under that dissenting justice’s reasoning, a challenge to a primary election must invariably be resolved in time for the general election scheduled for later that year. Clearly, the Election Code contemplates that such matters will be determined expeditiously. I do not believe, however, that the legislature intended in every instance that the prevailing party obtain, prior to the time of the general election, a final judgment in the last court to hear the case and, failing that, without fault on his or her part, gain nothing except the opportunity to run again in a primary election. Under the circumstances of this case, the result proposed in that dissenting opinion would serve only to nullify the statutory provisions discussed above.
As a final matter, I note that the winner of the contested primary at issue here was to run unopposed in the general election for that position. Accordingly, we do not have before us any question regarding the competing interests of another party’s candidate, which would substantially affect the type of remedy appropriate in a case such as this.
JUSTICE BILANDIC joins in this special concurrence.