specially concurring:
I agree with the majority that plaintiff should have had an opportunity to amend his original petition. Without such an opportunity, the right to contest election results of a race for the office of alderman in the City of Chicago is an empty privilege.
For the sake of judicial economy, the parties have asked us to examine the sufficiency of the first amended complaint to determine whether there appears to be a reasonable likelihood that the recount will change the results of the election. The majority has chosen not to make that determination and, although I am prepared to rule upon the several items in the complaint as to whether they constitute proper grounds for changing or adjusting the original count, I do agree with the majority that we should remand this matter to the trial court for the mathematical computation necessary for the ultimate disposition of the controversy.
Both parties cite Pullen v. Mulligan (1990), 138 Ill. 2d 21, 561 N.E.2d 585, which has become the leading decision in Illinois for determining the validity of ballots cast. Pullen reminds us that the cutting edge in all of the election cases is the recognition of the proper purpose of the mechanics of election and the importance of giving effect to the voters’ will in certain instances even though there has not been strict compliance with statutory provisions of the Election Code.
Generally, statutes that proscribe the duties of election officials are mandatory if they state that noncompliance voids the ballot, but are directory if they do not. (Pullen, 138 Ill. 2d at 46.) Moreover, the failure of officials to do their precise duty under the Election Code should not invalidate a ballot if the spirit of the law has not been violated and the voters’ intention can be fairly ascertained. Pullen, 138 Ill. 2d at 47; Craig v. Peterson (1968), 39 Ill. 2d 191, 233 N.E.2d 345.
Pullen has further recognized a distinction between those cases when the petitioner claims that the election is permeated with fraud and those, as in the case at bar, where there is no allegation of fraud.
With these principles of construction firmly in mind, I would determine that the following paragraphs of plaintiff’s first amended complaint are appropriate allegations which would support his request for relief:
Paragraph 8: In-precinct uninitialled ballots should not be counted;
Paragraph 9: An uncounted vote should be added to the Evans’ total;
Paragraph 10: The absence of any sworn election judge’s initials on the ballots should render them void;
Paragraph 11: The casting of ballots which were prepared for an earlier election is not overcome by the judges’ actions in recasting them. It is difficult to imagine anything that might make election results more suspect;
Paragraphs 17 and 24: Votes that are evidenced by neither a binder entry, affidavit nor a poll sheet notation should not be counted;
Paragraph 19: The two votes cast by a single voter should be adjusted notwithstanding this voter’s zealous dedication to participate in the electoral process; and
Paragraph 23: The trial court must make adjustment for an over-vote in the several precincts where this occurred.
On the other hand, the voters’ intentions and their right to cast their ballots in accordance with such intention should not be frustrated by the following allegations in plaintiffs first amended complaint:
Paragraph 12: Noting the wrong precinct number on the judge’s oath of office should not invalidate ballots initialled by that judge in the precinct to which she was assigned;
Paragraphs 13, 14, 15, and 16: Errors of omission in the affidavits for voters’ assistance should not disenfranchise people who have come to cast their votes despite great personal or physical difficulties;
Paragraphs 18 and 20: Wrong or missing addresses should not invalidate the ballots cast where the identity of the voter can be otherwise ascertained by the judges of election;
Paragraphs 21 and 22: Printed, rather than cursive, written names and slightly differently spelled names should not be discounted;
Paragraph 25: Ballots not received by election day should not be counted; and
Paragraph 26: Where there is no fraud alleged, printing the name of the candidate on the ballot cannot be taken as an identifying mark requiring that it not be considered.
The parties suggest that we should make these determinations in the "interest of judicial economy”; however, I must wonder whether that statement is somewhat tongue-in-cheek considering that we are still adjudicating the 1991 city elections at a time when politicians, media, an army of consultants and even a few interested citizens are beginning to think about the 1995 city elections. The parties must share some of the blame since it took them a year to complete their briefing. However, as I observed in my dissent in McDunn v. Williams (1992), 247 Ill. App. 3d 935, 947-50, 618 N.E.2d 262, vacated (1993), 156 Ill. 2d 288, 620 N.E.2d 385 (with due apologies for quoting myself), the parties are innocent victims of the process and "[w]hether 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.” McDunn, 247 Ill. App. 3d at 950.