APPEAL from the County Court of La Salle County; the Hon. JOHN
S. MASSIEON, Judge, presiding.
MR. CHIEF JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 THIS OPINION WAS PREPARED BY THE LATE MR. CHIEF JUSTICE BRISTOW AND WAS ADOPTED AND FILED AS THE OPINION OF THE COURT.
Defendant appeals directly to this court from a judgment of the county court of La Salle County entered in an election contest determining plaintiff to be the duly elected county auditor of La Salle County.
At the general election on November 8, 1960, Elva Heiman, Appellant, was the Republican candidate for County Auditor of La Salle County and Alfred J. Morandi was the Democratic candidate. They were the only candidates for that office. By the official canvass of votes Heiman was deemed elected with 26,522 votes to Morandi's 26,470. Morandi, pursuant to section 22-6 of the Election Code (Ill. Rev. Stat. 1959, chap. 46, par. 22-6), requested a discovery recount in all 98 precincts of La Salle County. The total vote count determined by this discovery gave Heiman 26,683 votes and Morandi 26,475; however, the recount also disclosed that 739 of the ballots counted for Heiman and 403 of the ballots counted for Morandi were uninitialled. Morandi thereupon filed an election contest to have all the uninitialled ballots declared void, which, if successful, would result in his victory by 128 votes.
The case went to hearing on February 8, 1961 at which time Heiman and Morandi entered into a stipulation in which the candidates agreed as to the votes received by each according to the official canvass, the votes received by them in each precinct according to the discovery recount, the number of ballots received by them lacking the initials of any judge of election, and the number of ballots cast by absentee voters in each precinct (i.e., collectively the physically incapacitated voters, absentee voters, and absentee voters in the military or naval service.) It was also agreed that there was no knowledge of fraud or corruption in respect to the manner in which the election was held, the ballots counted or preserved, or in any other manner. After acceptance of the stipulation by the court, Morandi moved that all uninitialled ballots be held illegal and void, and removed from the vote count. Heiman objected to the motion and contended that the court should hear evidence which would establish that the vast majority of the 1142 uninitialled ballots were cast by absentee voters and that such ballots, for both candidates, can be clearly identified as such; that such proof would embrace a sufficient number of absentee ballots to give the election to Heiman; that it was because of a misunderstanding of the law that the judges of election did not initial the absentee voters' ballots. The court denied the offer of proof, and upon holding all uninitialled ballots to be invalid, entered judgment for Morandi and declared him to be the elected county auditor.
Appeal to this court is pursuant to section 23-30 of the Election Code. Ill. Rev. Stat. 1959, chap. 46, par. 23-30.
Appellant concedes the correctness of our holding in Laird v. Williams, 281 Ill. 233, wherein we declared the initialing provisions of the election law mandatory and thus held void uninitialled ballots cast by voters at the polls. She further concedes that our subsequent decisions, McCreery v. Burnsmier, 293 Ill. 43; Allen v. Fuller, 332 Ill. 304; Sibley v. Staiger, 347 Ill. 288; Talbott v. Thompson, 350 Ill. 86; Greene v. Bjorseth, 350 Ill. 469; Lacy v. Rhodes, 369 Ill. 167; Barlick v. Kunz, 375 Ill. 318; Griffin v. Rausa, 2 Ill.2d 421, have applied the principle of Laird to clearly preclude the counting of uninitialled absentee ballots. Appellant, however, argues that those cases which have applied the Laird principle to absentee voters ballots have failed to discuss or recognize that at the time of the Laird decision there was no provision in the law for absent electors to vote, that a different wording of the law prescribes the method of absentee voting, and that there is a difference in the manner in which the voters present at the polls and the absent voters are able to protect the ballots they have cast. For these and reasons of public policy, it is urged the application of a mandatory rule should be reappraised and the initialing requirements as applied to absentee ballots be deemed directory.
Such contentions necessitate examination of the Election Code and interpretations thereof by this court. Present section 17-9 of the Election Code (Ill. Rev. Stat. 1959, chap. 46, par. 17-9), is the reenactment of section 22 of the former Ballot Act of 1891; present section 17-16 was section 26 of the Ballot Act. Both sections existed prior to the passage of the first Absent Electors Ballot Law in 1917. Laws of 1917, p. 434.
So far as is pertinent, section 17-9 provides: "One of the judges shall give the voter one, and only one of each ballot * * * on the back of which ballots such judge shall indorse his initials in such manner that they may be seen when each such ballot is properly folded, and the voter's name shall be immediately checked on the register list." (Emphasis supplied.)
The material part of section 17-16 is as follows: "No ballot without the official endorsement shall be deposited in the ballot box, and none but ballots provided in accordance with the provisions of this Act shall be counted." (Emphasis supplied.)
Article 19 of the Election Code treats with voting by absent electors and it is substantially the Absent Electors Ballot Law of 1917. Section 19-9 of this article deals with the casting of such electors' ballots. As pertinent, such section reads as follows:
"At the close of the regular balloting and at the close of the polls the judges of election of each voting precinct shall proceed to cast the absent voter's ballot separately, and as each absent voter's ballot is taken shall open the outer or carrier envelope, announce the absent voter's name and compare the signature upon the application with the signature upon the affidavit on the ballot envelope. In case the judges find the affidavits properly executed, that the signatures correspond, that the applicant is a duly qualified elector in the precinct and the applicant has not been present and voted within the county where he represents himself to be a qualified elector on such election day, they shall open the envelope containing the absent voter's ballot in such manner as not to deface or destroy the affidavit thereon, or mark or tear the ballots therein and take out the ballot or ballots therein contained without unfolding or permitting the same to be unfolded or examined, and having endorsed the ballot in like manner as other ballots are required to be endorsed, shall deposit the same in the proper ballot box or boxes and enter the absent voter's name in the poll book the same as if he had been present and voted in person." (Emphasis supplied.)
Section 19-14 provides that the sections of the Absent Voters' Law, "shall be deemed to provide a method of voting in addition to the method otherwise provided in this Act."
Article 20 of the Election Code, is a separate method of voting by absent electors in the military or naval service, and section 20-9 thereof, dealing with the voting of ballots by the absentee electors, contains the identical endorsement provisions of article 19, section 19-9.
Appellant argues that nowhere in article 19 or in the Absent Electors Ballot Law of 1917 is or was there an express provision that an uninitialled absent voter's ballot should not be counted, such as appears in article 17, section 17-16; therefore, the initialing requirement as applied to absent voters' ballots should as a matter of construction be deemed directory. Such position rests upon the fact that article 19, as evidenced by the comments of the Drafting Commission, is the Absent Electors Ballot Law of 1917, and that the Election Code adopted in 1943, which "codified the election and primary laws of this State" stated that, "The provisions of this Act, so far as they are ...