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Webb v. Benton Consolidated High School Dist.

NOVEMBER 20, 1970.

ROY WEBB ET AL., PLAINTIFFS-APPELLANTS,

v.

BENTON CONSOLIDATED HIGH SCHOOL DISTRICT NO. 103, FRANKLIN COUNTY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Franklin County; the Hon. CHARLES E. JONES, Judge, presiding.

MR. PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

This action was brought to contest an election held by the Benton Consolidated High School District No. 103 in Franklin County, Illinois on December 14, 1968 in which the proposition submitted to the voters of whether to issue bonds in the amount of $1,875,000.00 for the construction of a new high school and gymnasium building was approved.

The voting took place in six precincts but the conduct challenged in this contest is alleged to have taken place only with respect to absentee ballots cast in Precincts No. 1 and No. 2. In Precinct No. 1 there were 1,457 Yes votes, 972 No votes including 199 absentee ballots. In Precinct No. 2 there were 147 Yes votes, 111 No votes including 10 absentee ballots. In Precincts No. 3 through No. 6 there were 192 Yes votes and 599 No votes. The canvass of the total votes showed 1,796 Yes votes and 1,682 No votes.

With respect to the absentee ballots cast in Precinct No. 1 the trial court found numerous violations of the statutes (Ill. Rev. Stat., 1967, ch. 46, par. 19-1, et seq.) governing the conduct of elections in the voting of absentee ballots, such as that the judges of the election in Precinct No. 1 made no attempt to compare the signatures on the application for absentee ballot with the signature on the ballot envelope at the time the ballot envelopes were opened and the ballots deposited in the ballot box; that the names of the absentee voters were not announced at the time the ballot envelopes were opened; that on nine ballot envelopes the signatures had not been notarized; that one voter notarized his own signature on the ballot envelope; that another ballot envelope carried the signature of a voter who was in Texas at the time his signature was notarized in Benton; that several ballots were signed outside the presence of the notary; that several absentee ballots were voted at Franklin Hospital only as a convenience to the voters when they could otherwise be present on election day; the eight unregistered voters were permitted to vote absentee ballots; that the names of the absentee voters were not entered in the poll book; and that the absentee voters list for posting was not posted in a conspicuous place in the high school where ballots were ordinarily picked up by voters.

In Precinct No. 2 ten absentee ballots were cast but these ballots were counted after the regular ballots were counted, the names of the voters were not announced, their signatures were not compared with their applications and the ballots were spread on the table for all the judges to see. All ten of these ballots were in favor of the proposition.

• 1 Without further comment we concur with the findings of the trial judge that "when the evidence is fairly considered, it discloses that there were many and varied violations of the statutory procedures required in the voting of absentee ballots. These violations were of basic and fundamental rules for the protection of the integrity of the ballot and cannot be excused on the grounds that such rules are directory rather than mandatory; they are, in fact, the very type of conduct the statutes are designed to prohibit. These violations were so extensive and the handling of absentee ballots so lax, that all absentee ballots must be found to be illegal."

Since the ten illegal votes in Precinct No. 2 were shown to be for the proposition, it is clear that the affirmative vote in that precinct should be surcharged accordingly; but since the 199 absentee ballots cast in Precinct No. 1 were commingled with the votes cast on the day of the election before any votes were counted, and there was no evidence to show how any single absentee ballot had been voted, it is impossible to determine with any degree of mathematical certainty how many of these votes were for or against the proposition.

The issue then becomes whether to apportion the illegal absentee ballots cast in Precinct No. 1 or to exclude the entire vote in that precinct. Appellants argue that where voting irregularities are so numerous and flagrant as shown with respect to the absentee ballots in Precincts No. 1 and No. 2, a presumption arises that similar irregularities occurred with respect to the other ballots cast in those precincts, and contend that these irregularities constitute fraud which permeates the entire vote in those precincts requiring under the rule of Lehman v. Hill, 414 Ill. 173, and Emery v. Hennessy, 331 Ill. 296, that the entire vote in those precincts be excluded. The trial court found that the evidence showed many violations of voting regulations but that the evidence "is totally lacking in any showing of illegal acts committed with the intent and purpose of stacking the vote for the affirmative of the proposition," and that the "wrongful acts involved in (Lehman v. Hill and Emery v. Hennessy) went far beyond those shown by this record and the facts of this case do not align it with the wholesale frauds and stuffing of the ballot boxes in those cases."

We find no evidence that any ballots cast at the polls on December 14, 1968 were irregular, that the illegality of the absentee ballots in any way affected the remainder of votes cast, that any absentee voter was influenced or coerced by any election official, or that any person was denied his right to vote, and we hold that the findings of the trial court are not contrary to the manifest weight of the evidence. Armbrust v. Starkey, 3 Ill.2d 131, Park v. Hood, 374 Ill. 36.

• 2, 3 Where the portion of votes containing illegal ballots can be identified with certainty, and proof of irregularities in voting are not such as to justify a disenfranchisement of all voters in that precinct, it is proper to apportion the illegal ballots and surcharge the votes in that precinct accordingly instead of excluding the entire vote. (Thornton v. Gardner, 30 Ill.2d 234; Drolet v. Stentz, 83 Ill. App.2d 202.) Apportioning the 199 absentee ballots cast in Precinct No. 1 requires the deduction of 119.4 Yes votes and 79.6 No votes, and as previously stated, 10 absentee Yes votes must be deducted from the Yes votes cast in Precinct No. 2 with the result that the proposition was carried by a margin of 64.2 votes.

Accordingly, the judgment of the Circuit Court of Franklin County is affirmed.

Judgment affirmed.

GOLDENHERSH, J., concurs.

Mr. JUSTICE EBERSPACHER, ...


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