also dissenting:
I respectfully dissent. I conclude that Williams is the proper occupant of Judge Kiley’s seat for two reasons. First, the 1990 general election rendered McDunn's election contest moot. Second, the uninitialled 1990 primary ballots at issue should be counted.
MOOTNESS
The trial court was not authorized to put McDunn on the 1992 general election ballot based on 1990 primary results. Although I agree with the reasoning of Justice Heiple as it pertains to McDunn, I reach a different result concerning Williams. I conclude that Williams is the proper occupant of Judge Kiley’s seat.
The majority misconstrues the Election Code. The majority erroneously concludes that the Code authorized the trial court to place McDunn on the 1992 general election ballot based on 1990 primary results. However, as Justice Heiple explains, the Election Code does not contain such an authorization. 156 Ill. 2d at 339-42 (Heiple, J., dissenting).
Also, the majority misconstrues McDunn’s proper goal in this election contest. The majority apparently views McDunn as seeking to fill Judge Kiley’s vacancy without regard to when the vacancy is filled — 1990, 1992, 2022, or whenever. However, McDunn could properly seek to be a candidate only in the 1990 general election and no other. (See 156 Ill. 2d at 343 (Heiple, J., dissenting).) Indeed, in her election contest petition, McDunn prayed for the following relief:
“WHEREFORE, Petitioner McDUNN prays this Honorable Court:
* * *
3. Ascertains and declares by a judgment *** finding Petitioner McDUNN the elected nominee of the Democratic Party in said district as a candidate for the office of Judge of the Circuit Court, Cook County Judicial Circuit, inside the City of Chicago, to fill the vacaney of the Honorable Roger J. Kiley, Jr. in the November 6,1990 general election ***.” (Emphasis added.)
Thus, even McDunn herself knew that she was seeking to be a candidate not simply to fill a judicial vacancy, but to fill that vacancy in the 1990 general election.
The majority acknowledges the axiom that an issue is moot where events occur that make it impossible for a court to grant effective relief. (156 Ill. 2d at 324-25.) “Because the function of courts is to decide controverted issues in adversary proceedings, moot cases which do not present live issues are not ordinarily entertained.” (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622; accord Wendell v. City of Peoria (1916), 274 Ill. 613, 615.) Where an action has become moot since it was begun due to changed circumstances, the action will be dismissed. People ex rel. Jaros v. Jarecki (1939), 299 Ill. App. 382, 392 (and cases cited therein).
Illinois courts have applied these principles to cases involving elections. Courts have repeatedly found issues concerning elections moot where the elections had already occurred. In each of these cases, the court reasoned that the occurrence of the election prevented the court from granting effective relief. (People ex rel. Lawrence v. Village of Oak Park (1934), 356 Ill. 154; People ex rel. Chancellor v. Sweitzer (1928), 329 Ill. 380.) Thus, “[w]hen the election took place, the case became moot.” People ex rel. Knight v. Holzman (1968), 98 Ill. App. 2d 126, 127-28, citing Sokolowski v. Board of Election Commissioners (1967), 89 Ill. App. 2d 60; accord Harris v. Education Officers Electoral Board of Community Consolidated School District 110 (1990), 203 Ill. App. 3d 917; Bartos v. Chicago Board of Elections (1989), 191 Ill. App. 3d 937.
Applying these principles to the present case, I conclude that the occurrence of the 1990 general election rendered moot McDunn’s contest of the 1990 primary. The Election Code did not authorize the trial court to place McDunn on the 1992 general election ballot based on 1990 primary results. Thus, the 1990 general election was the determinative event. Once that event occurred, McDunn’s candidacy ended.
I also conclude that WiBiams is the proper occupant of Judge Kiley’s seat. Justice Heiple concludes that neither Williams nor McDunn should fill the vacancy. Regarding Williams, Justice Heiple reasons that “he [Williams] was not the winner of the 1990 Democratic primary and therefore was not properly on the 1990 general election ballot.” 156 Ill. 2d at 342 (Heiple, J., dissenting).
I disagree. Williams was initially certified as the winner of the 1990 primary. Once the 1990 general election occurred, McDunn could no longer contest Williams’ apparent primary victory because the trial court could no longer grant the relief that McDunn sought, i.e., candidacy in the 1990 general election. In other words, Williams properly remained on the 1990 general election ballot because, after the general election occurred, McDunn could no longer contest his presence on the ballot.
UNINITIALLED BALLOTS
Even if the 1990 general election did not render McDunn’s election contest moot, I conclude that Williams is nonetheless the proper occupant of Judge Kiley’s seat. As the majority notes, the parties stipulate that if the uninitialled 1990 primary ballots at issue are counted, Williams is the winner of the primary. If the uninitialled ballots are not counted, McDunn is the winner. 156 Ill. 2d at 310.
The majority concludes that the uninitialled ballots at issue cannot be counted, thus making McDunn the winner. However, I conclude that the uninitialled ballots should have been counted, thus making Williams the winner.
General Principles
The Election Code provisions at issue amount to a ballot exclusionary rule based on the failure or omission of an election judge to initial a ballot given to a voter. (Ill. Rev. Stat. 1989, ch. 46, pars. 7 — 44, 7 — 51, 24A — 10.1; see 156 Ill. 2d at 310-11.) The issue before this court is whether this ballot-initialling requirement is mandatory or directory as applied to the facts in the present case.
Whether a statutory provision is directory or mandatory depends on the intent of the legislature. The legislative intent is ascertained by examining the nature and object of the statute and the consequences of any particular construction. The statutory language is often the most reliable evidence of the legislature’s intent. Pullen, 138 Ill. 2d at 46.
Where a statute, which prescribes duties of election officials, simply prescribes the performance of certain acts in a specific manner and does not expressly state that compliance is essential to the validity of the ballot, then the statute generally will be given a directory construction. A technical violation of a directory provision does not invalidate the affected ballots. However, if the statute expressly states that failure to act as the statute prescribes will void the ballot, the statute will generally be given a mandatory construction. The failure to comply with a mandatory provision renders the affected ballots void. Pullen, 138 Ill. 2d at 46.
Prior to Craig v. Peterson (1968), 39 Ill. 2d 191, this court held that the ballot-initialling requirement, as applied to both in-precinct and absentee ballots, was mandatory. A ballot without such initials, either in-precinct or absentee, would not be counted. (Pullen, 138 Ill. 2d at 49; Craig, 39 Ill. 2d at 194.) The purpose of construing the ballot-initialling requirement as mandatory was to preserve the integrity of an election by preventing a ballot box from being “stuffed” with forged ballots. This court reasoned that an election judge can identify his or her own initials and can detect forged initials. This court concluded that there was no other equally effective method of separating legally cast ballots from those illegally cast. Craig, 39 Ill. 2d at 196-97; Laird v. Williams (1917), 281 Ill. 233, 238-39.
Also prior to Craig, the mandatory construction of the ballot-initialling requirement applied even where voter fraud was absent and the election judge omitted his or her initials through ignorance or mistake. (Lacy v. Rhodes (1938), 369 Ill. 167, 169-70.) This court had gone so far as to hold that the purpose of the ballotinitialling requirement outweighs an innocent, qualified voter’s loss of franchise. Tuthill, 387 Ill. at 330.
Craig v. Peterson
In Craig, this court found an exception to the mandatory construction of the ballot-initialling requirement. The court recognized that a qualified voter has a constitutional right not only to vote, but also to have that vote counted. (Craig, 39 Ill. 2d at 195 (and cases cited therein).) Referring to the distinction between a directory and a mandatory construction of statutes, the court stated:
“And even in those instances wherein the legislature has declared its intention in seemingly mandatory terms, courts have not hesitated to inquire into the reasonableness of such provisions, and, if such regulatory provisions operated unequally upon equally qualified voters [citation] or made no substantial contribution towards insuring the honesty and secrecy of the election, but, rather, were of an arbitrary nature and disenfranchised qualified voters without their fault [citations], have held such provisions unconstitutional.” Craig, 39 Ill. 2d at 196.
The court in Craig held that the mandatory construction of the ballot-initialling requirement does not apply where: (1) a qualified voter will lose his or her right of suffrage without any fault of the voter, and (2) the ballot-initialling requirement does not contribute substantially to the integrity of the election. Craig, 39 Ill. 2d at 198-99; see 156 Ill. 2d at 311-13.
As the majority notes, this court has limited the Craig exception to the mandatory construction of the ballot-initialling requirement to absentee ballots. In-precinct ballots, and even absentee ballots inseparably mixed with in-precinct ballots, are still subject to the mandatory construction. This court has identified two principal reasons for this distinction. First, a ballot box cannot be “stuffed” with absentee ballots because they are not cast in the polling place and are not opened until after the polls have closed. However, a ballot box can be “stuffed” with in-precinct ballots. Thus, the initialling requirement remains the only means to identify and separate in-precinct ballots that were legally cast from those that were not. Pullen, 138 Ill. 2d at 53; Craig, 39 Ill. 2d at 200-01.
Second, the risk of disfranchising an in-precinct voter is less than that for an absentee voter. The in-precinct voter can see whether the election judge initialled the ballot, but an absentee voter cannot. (Craig, 39 Ill. 2d at 201.) In the present case, the majority accepts this reasoning and construes the ballot-initialling requirement as mandatory, thereby excluding the ballots at issue. 156 Ill. 2d at 311-14.
Application of Craig
I am of the opinion that the mandatory construction of the ballot-initialling requirement is unconstitutional as applied to the facts of this case. I conclude that the Craig exception to such construction should apply to the ballots in this case.
It is established that the right to vote, which includes the right to have a vote counted (Craig, 39 Ill. 2d at 195), in an election of general interest is a fundamental right. Any legislation which operates to impair a person’s right to vote on grounds other than residency, age, or citizenship, can stand only if it can survive strict scrutiny analysis. (Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 74 (and cases cited therein).) Further:
“Under a standard of strict scrutiny, the court must conclude that the means employed by the legislature to achieve the stated goal were necessary to advance a compelling State interest. Too, the statute must be narrowly tailored, that is, the legislature must use the least restrictive means consistent with the attainment of the legislative goal.” Fumarolo, 142 Ill. 2d at 73.
The mandatory construction of the ballot-initialling requirement is unconstitutional as applied to the facts of this case for two reasons. First, it is not necessary to apply the mandatory construction here to achieve the legislative goal of preserving the integrity of the election. I reject the idea that in-precinct balloting is more susceptible to fraud than absentee balloting. It is true that a ballot box can be “stuffed” with forged in-precinct ballots while the polls are open. However, a ballot box can be “stuffed” also with forged absentee ballots after the polls are closed.
On the day of an election, an election authority sends cast absentee ballots, with their accompanying absentee ballot applications, to their respective precinct polling places. (Ill. Rev. Stat. 1989, ch. 46, pars. 19— 2.1, 19 — 8.) After the polls close, an election judge determines if each absentee ballot was cast by a qualified voter in the precinct. If so, the election judge, at that point, initials the cast absentee ballot and deposits it in the ballot box with the in-precinct ballots. Ill. Rev. Stat. 1989, ch. 46, par. 19 — 9.
This process shows that absentee balloting is as susceptible to fraud as in-precinct balloting. Both types of ballots receive similar treatment by an election judge. In the context of either absentee or in-precinct balloting, an election judge verifies a voter’s identity, residence, and receipt of only one ballot. The election judge then places both types of ballots in the common ballot box. Thus, an election official at a polling place has as much opportunity to “stuff” a ballot box with forged absentee ballots as with forged in-precinct ballots.
I further note that a mandatory construction of the ballot exclusionary rule could actually threaten the integrity of an election. A mandatory construction of such a ballot requirement “would often permit unscrupulous election officers to invalidate elections at will.” State ex rel. Wahl v. Richards (1949), 44 Del. 566, 581, 64 A.2d 400, 407.
In the present case, the majority acknowledges that the trial court dismissed for lack of proof McDunn’s allegation of fraud in the primary. (156 Ill. 2d at 296-97.) Absent allegations of fraud, if it is not necessary to exclude uninitialled absentee ballots to preserve the integrity of an election, then it is not necessary to exclude uninitialled in-precinct ballots.
Second, the mandatory construction of the ballot-initialling requirement was not the least restrictive means to preserve the integrity of this election. The mandatory construction is an unconstitutional burden that disfranchises an innocent, qualified voter based on the failure or omission of an election judge. If the legislature can enact a law whereby election judges can effectively disfranchise all of the voters of a precinct, where those voters are not at fault, then the constitutional right to vote is of small consequence. Moyer v. Van De Vanter (1895), 12 Wash. 377, 382, 41 P. 60, 61.
The court in Moyer recognized “a distinction between the obligations placed upon the individual voter and those matters which relate to the duties of election officers.” (Moyer, 12 Wash. at 382, 41 P. at 61.) The court reasoned:
“The individual voter may well be called upon to see that the requirements of the law applying to himself are complied with before casting his ballot, and if he should willfully or carelessly violate the same, there would be no hardship or injustice in depriving him of his vote; but if, on the other hand, he should in good faith comply with the law upon his part, it would be a great hardship were he deprived of his ballot through some fault or mistake of an election officer in failing to comply with a provision of the law over which the voter had no control.” (Emphasis added.) Moyer, 12 Wash. at 382-83, 41 P. at 61.
It is an unnecessary burden to require each in-precinct voter to know the ballot-initialling requirement and to search his or her ballot for an election judge’s initials. Contrary to the majority’s assertion (156 Ill. 2d at 318), a voter’s constitutional right to have his ballot counted should not depend on his ability to detect the failure or omission of an election judge. Indeed, the majority refers to the presumption that election officials perform their statutory duties. (156 Ill. 2d at 318.) This is all the more reason for an innocent voter not to search his ballot for an election judge’s mistake or omission, but rather to rely on the presumption that the election judge had given him a legal ballot.
The court in Moyer recognized that less restrictive means existed to protect the integrity of an election. If an election judge is determined to have violated an Election Code provision, the judge can be punished “and in this way the law can be rendered effectual without going to the extent of depriving the voter of his right to have his vote counted in consequence of such violation.” Moyer, 12 Wash. at 384, 41 P. at 62.
I lastly note that these views are not new to this court. In Slenker v. Engel (1911), 250 Ill. 499, this court ruled that certain ballots could not be counted because they lacked the initials of an election judge. (Slenker, 250 Ill. at 510-11.) Dissenting, Chief Justice Carter stated in pertinent part:
“A voter should not be deprived of his vote by a mistake of election officers where he is not at fault, and the ballot itself, or other evidence in the record, shows that the ballot is genuine, delivered by the judges to the voter and by him voted, and that the lack of the judges’ initials was caused by mistake. The initials of a judge in his handwriting are for the purpose of identifying the ballot, but if the ballot can be fully identified, even in the absence of the initials, and it is shown that it was cast by a legal voter, it should be counted.” Slenker, 250 Ill. at 511-12 (Carter, C.J., dissenting).
I would reverse the appellate and trial courts. Accordingly, I respectfully dissent.