DeFabio v. Gummersheimer

WELCH, J.,

dissenting:

For reasons that follow, I respectfully dissent from the majority’s decision that the trial court did not err in refusing to allow respondent an opportunity to present evidence regarding the conduct of the election, that is, that it was free from fraud and that the uninitialed ballots cast in precinct 2 were legally cast. Relying on McDunn v. Williams, 156 Ill. 2d 288 (1993), the majority holds that such evidence is irrelevant where the initialing requirement is mandatory, uninitialed ballots are not to be counted, and none of the ballots cast in precinct 2 were initialed. It is my opinion that, in the circumstances presented in the case at bar, where none of the ballots in a precinct were initialed as required by the Election Code, the initialing requirement should be deemed to be directory and not mandatory. Accordingly, respondent should have been allowed to present evidence that the votes cast in precinct 2 were legally cast despite the absence of the initials of the election judges.

As the majority points out, the Illinois Supreme Court has most recently held, in McDunn, 156 Ill. 2d at 311, that the initialing requirements are mandatory and that uninitialed ballots may not be counted. This had also been the position of the court prior to its decision in Craig v. Peterson, 39 Ill. 2d 191 (1968). In Craig, the court recognized its existing rule that only initialed ballots may be counted, but it stated, “We have not, however, considered the question in the context here presented ***.” Craig, 39 Ill. 2d at 194. Similarly, the court has never considered the initialing requirement in the context presented here, where the election judges failed in their duties and failed to initial any and all of the ballots in a precinct and where there is no evidence of any voting fraud. I believe that the Illinois Supreme Court would find, as it did in Craig, that under the circumstances here, the initialing requirement is directory, not mandatory. Let me explain.

It is well settled that the purpose of the initialing requirement is to prevent fraud in the election process, particularly by providing a means of separating legally cast ballots (initialed) from illegally cast ballots (uninitialed) and preventing the practice of “stuffing” the ballot box.

“ ‘[T]here must[,] *** in order to prevent fraud, be some method whereby illegally cast ballots may be distinguished and rejected. The initialing provision is the principal method chosen by the legislature for accomplishing this purpose since the judge who has indorsed his initials upon the ballot can thereafter identify that ballot as legally cast.’ ” McDunn, 156 Ill. 2d at 312, quoting Craig, 39 Ill. 2d at 200-01.
“ ‘[T]he initials provide the only means by which the election officials can identify and separate the legally cast from the illegally cast in-precinct ballots.’ ” McDunn, 156 Ill. 2d at 314, quoting Pullen v. Mulligan, 138 Ill. 2d 21, 53 (1990).

Thus, the only purpose of the initialing requirement is to preserve the integrity of the election process.

It seems obvious to me that this purpose of protecting the integrity of the election process by providing a means to separate legally cast from illegally cast ballots is not served by the mandatory application of the initialing requirement in the case at bar. None of the ballots cast in precinct 2 were initialed. The mandatory application of the initialing requirement under these circumstances creates the presumption that all of the ballots cast in precinct 2 were cast illegally, a presumption that seems patently unreasonable. The more reasonable presumption is that the election judges simply failed to fulfill their statutory duty to initial each and every ballot cast. Accordingly, mandatory application of the initialing requirement lends nothing to the integrity of the election process in precinct 2.

In McDunn, 156 Ill. 2d at 312, the court repeated what it had held in Craig — statutes that do not contribute substantially to the integrity of the election process are usually held to be directory, not mandatory. In Craig, the court created an exception to the mandatory initialing requirement:

“The statute requires the ballots to be initialled, it commands that no unindorsed ballot shall be counted, this requirement substantially contributes to the integrity of the election process [,] and [it] is a valid, mandatory provision which the courts must enforce. But this reasoning simply does not apply with equal force to the situation before us where the initialling requirement, in the circumstances of this case, contributes not at all to the integrity of the election process: *** it does not assist in separating the illegally cast from the legally cast ballots for there were no other paper ballots for public offices and there is no claim that these absentee ballots were altered, tampered with[,] or in any way improperly preserved ***. The net result of a mandatory application of the initialling requirement to the absentee ballots in the circumstances of this case would be to disenfranchise a substantial number of qualified voters *** where, as here, the rule causing their disenfranchisement made no substantial contribution to the integrity of this election.” Craig, 39 Ill. 2d at 198-99.

Similarly, in the case at bar, the mandatory application of the initialing requirement serves no purpose other than to disenfranchise an entire precinct of voters. I simply do not believe that the legislature intended for the initialing requirement to apply in this circumstance any more than it applied in the circumstances presented in Craig.

In this regard, I am advised by Justice Freeman’s dissent in McDunn, 156 Ill. 2d at 343-53. As he pointed out, the right to vote, which includes the right to have a vote counted, is a fundamental right, and any legislation which operates to impair that right is subject to strict scrutiny. McDunn, 156 Ill. 2d at 350. As I have already stated, mandatory application of the initialing requirement under the facts of the case at bar simply does not achieve the legislative goal of preserving the integrity of the election process. Furthermore, I agree with Justice Freeman that it is an unnecessary and unreasonable burden to require each voter to know the ballot-initialing requirement and to search his or her ballot for an election judge’s initials. See McDunn, 156 Ill. 2d at 352. I find persuasive the following language:

“ ‘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 in original.) McDunn, 156 Ill. 2d at 352 (Freeman, J., dissenting), quoting Moyer v. Van De Vanter, 12 Wash. 377, 382-83, 41 E 60, 61 (1895).

As Justice Freeman stated, “The mandatory construction *** disenfranchises 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 disenfranchise all of the voters of a precinct, where those voters are not at fault, then the constitutional right to vote is of small consequence.” (Emphasis in original.) McDunn, 156 Ill. 2d at 351-52.

I believe that voters should be able to rely on public officials to do their duty. Voters should not be penalized — disenfranchised—because an election judge, through no fault of the voter, has failed to fulfill his statutory duty. And yet that is the effect of the trial court’s decision in this case. In my opinion, the trial court should have found the initialing requirement to be directory, not mandatory, and should have permitted respondent to present evidence as to the conduct of the election in precinct 2 to determine if the ballots were legally cast.

“ ‘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.’ ” McDunn, 156 Ill. 2d at 353 (Freeman, J., dissenting), quoting Slenker v. Engel, 250 Ill. 499, 511-12 (1911) (Carter, C.J., dissenting).

Keeping in mind our duty to interpret a statute so as to promote its essential purposes and to avoid, if possible, a construction that would raise doubts as to its validity (see Craig, 39 Ill. 2d at 201), I would hold that the statutory requirements relating to the initialing of ballots by election judges are directory, rather than mandatory, under the facts of this case, where all the ballots cast in a precinct are uninitialed and there are no allegations of fraud in the voting process.

The majority finds that respondent is not entitled to present evidence as to the legality of the ballots cast in precinct 2, based on the following language from McDunn:

“[T]he legislature has created the reasonable presumption that uninitialled ballots are not legally cast[ ] and should not be counted. Moreover, ‘[j]udges of election are presumed to perform the duties required of them by statute.’ ” McDunn, 156 Ill. 2d at 318, quoting In re Contest of the Election for the Offices of Governor & Lieutenant Governor, 93 Ill. 2d 463, 480 (1983).

It is clear to me that these presumptions simply do not apply here. In this case there can be no reasonable presumption that the uninitialed ballots were not legally cast, nor can there be a reasonable presumption that the election judges performed the duties required of them by statute. Petitioner does not argue that all of the ballots cast in precinct 2 were not legally cast. The election judges in precinct 2 did not perform the duties required of them by statute. Respondent should have been permitted to present evidence pertaining to the legality of the ballots cast in precinct 2.

If I believed that the majority was following a decision of the Illinois Supreme Court, I would concur in its decision. However, the IIlinois Supreme Court has never ruled on the issue presented here: whether the failure of the election judges, through ignorance, oversight, or otherwise, to initial any of the ballots in their precinct should be allowed to result in the total disenfranchisement of an entire precinct of voters, where there is no evidence of any fraud in the election process in that precinct. Accordingly, I dissent.