APPEAL from the Circuit Court of Pope County; the Hon. JOHN D.
DAILY, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
On December 4, 1972, the appellant, Duane T. Leach, filed a petition for the contest of an election to the office of State's Attorney, Pope County. Appellant was the candidate for the Republican Party. Appellee, Dolores J. Johnson, was the candidate for the Democratic Party.
The official canvass of votes found that appellee received 1,112 votes and appellant, 1,111. Appellant requested a discovery recount, and the recount showed that appellant did receive a greater total vote than the appellee. The discovery recount involved Golconda Poll 2 and Golconda Poll 1. For Poll 2 the recount disclosed that the appellee received fewer votes than were counted by the election officials. For Poll 1 it disclosed that the appellant received more votes than were shown by the count of the election officials and that appellee received fewer.
At the trial, evidence was presented regarding the preservation of the ballots and the court ruled that they had been properly preserved. Ballots were then counted in Golconda Poll 2, appellant having amended his petition to withdraw his request for a count of the ballots in Poll 1. Evidence was then presented regarding illegal voting in Poll 2. Following the presentation of all the evidence by both sides regarding illegal voting, the court found that the appellant had received a total of 1,079 1/2 votes and the appellee 1,085 1/2 votes and that appellee was duly elected to the office of State's Attorney of Pope County.
Both appellant and appellee raise a number of issues. We will first dispose of the contention by both appellant and appellee that the trial court erred in permitting the other to amend pleadings during the course of the trial. Appellant alleges error in that the court permitted appellee to amend her pleadings so the question of illegal voting could be raised with regard to Poll 2. Appellee alleges error in that the court permitted appellant to present evidence as to illegal votes when such was not alleged in his petition.
• 1, 2 It is well established that permission to amend pleadings is a matter within the sound discretion of the trial court and the court's ruling will not be disturbed unless there is evidence that this discretion was arbitrarily exercised. The record in this case does not show that this discretion was abused. On the other hand, the record shows that the court was painstaking in its attempt to get at the substance of the election contest. Allowing either or both parties to raise the question of illegal voting as further information about the election was disclosed during the course of the trial seems to us to have been a reasonable and not an arbitrary determination.
Three major issues are presented: (1) were the ballots properly preserved; (2) if it is determined that they were properly preserved, should all the votes in Poll 2 have been thrown out; (3) if all the votes in Poll 2 should not have been thrown out, was it proper for the court to accept evidence of party affiliation for purposes of determining how to subtract votes from the respective candidates. We shall deal with these issues in the order in which they are expressed above.
Appellee argues that appellant did not sustain the burden of showing that the ballots were properly preserved and that therefore the results of the official canvass should not be disturbed.
Section 17-20 of the Election Code (Ill. Rev. Stat., ch. 46, sec. 17-20) provides that after votes have been canvassed at a polling place and the result proclaimed and transmitted to the office of the county clerk, election judges:
"* * * shall fold or roll all of the ballots which have been counted by them, except those ballots which have been in the ballot box but have not been counted and marked `defective' or `objected to,' securely bind them lengthwise and in width, with a soft cord having a minimum tensile strength of 60 pounds, and wrap the same with heavy wrapping paper on which the judges of election shall write their signature and seal the package with transparent adhesive tape over the signatures and around the package lengthwise and crosswise so that the ballots cannot be removed from the package without breaking the seal and the transparent adhesive tape and disturbing the signatures, and enclose the ballots so wrapped, together with the envelope containing the ballots marked `defective' or `objected to,' in a secure canvas covering, which the judges of election shall sign and seal with transparent adhesive tape as above specified."
This section further provides that two precinct judges, one from each political party, shall be elected to transmit the ballots to the clerk or to the Board of Election Commissioners, where they shall be carefully preserved for 2 months.
Appellee introduced evidence to show that six separate changes had taken place in the condition of the canvas bag containing the ballots. There was conflicting testimony about just how the canvas bag had been bound with cord and tape, so it is difficult to determine just what changes might have taken place in the binding or taping on the canvas bag. There was no evidence that the sealed envelope within the bag containing the ballots had been opened or tampered with in any way. In Crum v. Green, 68 Ill. App.2d 246, 251, the court said: "We do not agree that the testimony shows that unauthorized persons had access to the ballots. In nearly every case it is possible that someone who was not authorized could have access to the ballots. We believe that this principle must be taken to mean access which would enable one to tamper with the ballots without the result being observed. All of the facts and circumstances must be considered. Any persons who tampered with the ballots in this case would have to untie the bags or cut them and unwrap the sealed packages of ballots and reseal them."
As appellant points out, for the ballots to be tampered with, the bag would have to be cut or the tape cut off and the bag opened. The ballots would have to be unwrapped from their paper wrapping, the stack of ballots altered in some manner and the ballots rewrapped and placed in the bag. Then the bag would have to be retied and retaped. All this would have to be done during business hours when the vault was being monitored.
Whether or not there is such tampering as to result in improper preservation is a question of fact for the judge to consider. In the instant case, after the evidence was in, the trial court said: "I have listened to the evidence that the respondent has produced here and observed the demeanor of witnesses who testified, and the court is aware that some of the requirements of the statute pertaining to the conduct of an election to the handling of the ballots and the wrapping, etc., may not have been complied with, but in the absence of fraud the court cannot refuse to admit them * * *. I don't consider the discrepancy in the application and the numbering of ballots the preponderance of the evidence shows that they were straightened out after the polls closed. * * * First of all, there is not one scintilla of evidence but what the ballots that were cast reached the Clerk's office. There is not one scintilla of evidence that anyone ever changed the way they were sealed except at the record. * * * Somebody has to handle these ballots and Mr. Baker [the County Clerk] has testified repeatedly and as recently as ten minutes ago that they are in the same condition as they were when delivered to his office and I can't make something out of nothing. * * * I reviewed all of the evidence and with the assistance of the reporter reviewed a lot of it verbatim and I read a lot of the cases hoping I could grant your first motion, because if I could we could have been 90% done, and ...