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Whitsell v. Davis





APPEAL from the Circuit Court of Madison County; the Hon. VICTOR MOSELE, Judge, presiding.


This matter was originally brought in the circuit court of Madison County by the petitioners, Louis Whitsell, Loren Madison, Kenneth Geisen, Helen Hawkins and Harlan Pervan, who shall be hereinafter referred to as "Petitioners," to set aside or otherwise affect the result of a township election held in Nameoki Township, Madison County, on April 5, 1977. The court below found in favor of the respondents-appellees Harold Davis, Carl Macios, Lee Adams and Norman Hessler, hereinafter referred to as "Respondents" and entered its order denying the relief requested. From the court's order, the petitioners, Whitsell and Madison, have brought this appeal.

This matter was originally filed on April 27, 1977, by the petitioners, contesting the township election which had been held on April 5, 1977. The township consists of 11 precincts. The petitioners contest the conduct in six of the precincts, but not in the remaining five. They contend that significant irregularities occurred. The respondents deny such to be the case. The matter was tried in the court in a three-day trial. At the conclusion of the trial, both parties submitted briefs. The court filed its order on November 15, 1977, denying the relief sought by the petitioners.

Because the court's order fully sets forth the matters in dispute and the findings contained therein are supported by the record, it is set forth below as entered. The six precincts which are in dispute are Nos. 1, 4, 5, 6, 8 and 11. The court in its findings discussed each separately:


The tally sheets show that when the defective ballots and ballots cast are added together, the tally sheet shows two additional ballots; however, the Court finds pursuant to the testimony of Town Clerk, and pursuant to the examination of other tally sheets that said defective ballots were counted as ballots cast and no additional ballots exist.

THE COURT FURTHER FINDS no irregularity on the face of the tally sheet; but, on the contrary, finds that the minor changes on the tally sheets reflect the efforts of the election judge to correct their count. The Court further finds that Respondents have shown no reasonable opportunity for anyone to have tampered with the tally sheets.


THE COURT FINDS that five ballots are missing; however, the Court finds absolutely no evidence on which to make the decision that the loss of ballots were occasioned by anything other than honest mistake or miscount, and further finds no evidence on which can make a finding of fraud, deceit or foul play.


THE COURT FINDS that no additional ballots were shown to exist in Precinct Five and pursuant to the testimony of the Town Clerk finds that the tally sheet is accounted for by the exclusion of defective ballots.

The Court finds that one ballot appears to be missing, but as explained by the attorney for the Petitioners, that no showing other than that of an honest mistake has been shown. The Court further finds no credible testimony to establish any reasonable possibility that the ballots were tampered with by any person. The Court further finds not even a scintilla of evidence on which to conclude that there was any fraud or deceit.


THE COURT FINDS that all ballots in this Precinct are accounted for. The Court further finds that Petitioners have not shown any reasonable opportunity that any unauthorized person ever had access to the ballots. The Court finds no evidence to conclude or speculate the existence of any fraud or deceit.

The Court finds that only inadvertent noncompliance has been shown with absolutely no effect upon the legitimacy of the election.


THE COURT FINDS no additional ballots cast in the Precinct, all differences being reconciled by the reasonable explanation of the Town Clerk.

The Court finds no basis to conclude any wrongful conduct by the fact that on one of three tally sheets, an election judge changed from ink to pencil, nor have Petitioners established any statutory violation in that regard.

The Court finds that a guardrail was not constructed; however, the Court finds no way in which that failure affected the election. The Court further has concluded based upon the applicable case law that said provisions are directory.

The Court finds that some ballots were pre-initialed; however, the Court finds that the pre-initialing of ballots is customary and had no effect upon the election. The Court further finds that the pre-initialing of ballots is designed to facilitate voting.

The Court, after viewing the demeanor of the witness called upon behalf of the Petitioners, finds that the ballots marked with either a printed or written `O.B.' were ...

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