APPEAL from the Circuit Court of Rock Island County; the Hon.
L.E. ELLISON, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
On April 5, 1977, an election was held for the office of assessor of South Moline Township, Rock Island County, Illinois. The defendant, Jean Camferdam, was subsequently certified as elected to this office. Her opponent, Glen Frese, seeking to be declared the duly elected assessor, contested the election. Prior to trial, two absentee voters, Ludwig Einess and Michael Fennelly, endeavored to intervene in the suit, but their petition for intervention was denied. On January 30, 1978, the Circuit Court of Rock Island County entered judgment in favor of the plaintiff Frese, and declared him to be the winner of the election. It is from this judgment that Camferdam appeals. Einess and Fennelly appeal from the order denying their petition for intervention.
The pertinent facts are as follows. Prior to the election for the office of assessor of South Moline Township, Loween Geyer, incumbent township clerk and Republican candidate for that office in the April 5 election, appointed four "deputies" to assist her in delivering ballots to absentee voters and returning those same ballots to the township clerk's office. Her four appointees were Larry Burns, a Republican precinct committeeman, the incumbent township supervisor, and candidate for that position on April 5; Jack Dy, Republican candidate for trustee; Eleanor Anderson; and defendant Camferdam. Geyer, her deputies and several other individuals who had not been so "deputized" delivered ballot applications and absentee ballots to the home or residence of 36 absentee voters prior to election day, according to the stipulation entered into by the parties. After each ballot had been voted, it was personally delivered by the voter either to the clerk Geyer or one of her deputies, with two exceptions. These voted absentee ballots were eventually returned by Geyer or one of her appointed assistants to the township office and kept in an unlocked file cabinet in Larry Burns' office, where they remained until April 5. The result of the election was 1,634 votes for Camferdam, and 1,618 for Frese, a difference of 16 votes.
In its opinion declaring Frese to be the winner of the election by 16 votes, the trial court made numerous findings. The court first held that the manner of delivery and return of the absentee ballots as heretofore described was contrary to the applicable provision of the Illinois Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 19-6) and as a consequence 39 absentee ballots were to be voided. As an additional ground for voiding these ballots, the court found that some of the applications for these ballots were not timely filed. The trial court also voided an additional four ballots for late or no registration, and four ballots for improper signature on the application and ballot envelope. The apportionment of these 47 invalid ballots resulted in a deduction of 38.9 votes from Camferdam's total, and 6.733 from Frese's total. The result of this apportionment was that Frese won the election by a 16.167 vote margin.
The first issue raised by the defendant Camferdam on appeal concerns the invalidation of the 39 absentee ballots because of improper delivery and return. The controlling statutory provision is section 19-6 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 19-6), which reads as follows:
"Such absent voter shall make and subscribe to the certifications provided for in the application and on the return envelope for the ballot and such ballot or ballots shall be folded by such voter in the manner required to be folded before depositing the same in the ballot box, and be deposited in such envelope and the envelope securely sealed. Such officer shall then endorse his certificate upon the back of the envelope and the envelope shall be mailed by such voter, postage prepaid, to the officer issuing the ballot or, if more convenient, it may be delivered in person, but in any event it must be returned into the hands of the officer in sufficient time for the ballot or ballots to be delivered by such officer to the proper polling place before the closing of the polls, on the day of the election."
As the trial court pointed out in its opinion, in the instant case absentee ballots were returned to the township office in one of three ways: They were either handed by the voters to clerk Geyer herself at a place other than her office, who then personally delivered them to the township office; handed to one of her appointed "deputy" clerks who returned them to the office; or handed to a "nonofficer," who either returned them to the office personally, or delivered them to clerk Geyer or one of her deputies. Clearly none of these methods of return square with the statutory directives, which we will hereinafter discuss, that the ballot be returned in a sealed envelope either by mail or by personal delivery to the office of the clerk. However, whether or not strict compliance with section 19-6 is required depends upon whether a mandatory or directory reading is to be given to that statute. The trial court gave the provisions of section 19-6 a mandatory reading, and consequently found the return of the absentee ballots invalid.
In concluding that the absentee ballot return provisions of section 19-6 of the Election Code were mandatory, the trial court was guided by the Illinois Supreme Court's decision in Clark v. Quick (1941), 377 Ill. 424, 36 N.E.2d 563. In Clark, the court was faced with the task of determining the validity of 46 absentee ballots. As in the present case, the validity of the absentee ballots was attacked on the grounds that the return of the ballots was not in accord with the applicable statutory provision. The statute then in effect was section 467 of the absent voters law (Ill. Rev. Stat. 1939, ch. 46, par. 467). The language of section 467 of the absent voters law pertaining to the method of return of absentee ballots was virtually the same as the language of the present section 19-6 of the Election Code. The supreme court, in finding the absentee ballots void, held that the provisions requiring the voter to mail the envelope containing the ballot to the office issuing the ballot were mandatory and not directory. The court stated 377 Ill. 424, 430-31, 36 N.E.2d 563, 566): "It is the clear intention of the Absent Voters law that the legislature was willing and intended to commit the temporary custody of a ballot to the United States mails for delivery to the proper officials. It is equally clear that there was no intention that such custody should be committed, even temporarily, to any other person or agency." (Emphasis added.)
Clark has never been overruled. The defendant, however, contends that the case of Craig v. Peterson (1968), 39 Ill.2d 191, 233 N.E.2d 345, to the extent it conflicts with Clark, is controlling. In Craig, the plaintiff contended that the absentee ballots returned from 14 precincts should be invalidated because none of them contained the initials of an election judge, as required by section 17-9 of the Election Code (Ill. Rev. Stat. 1965, ch. 46, par. 17-9). The defendant argued that the statutory provision requiring initialing was directory rather than mandatory, and thus the ballots should not be declared void. The court agreed with the defendant, and made the following statement on the subject of mandatory versus directory requirements: "[I]t is * * * apparent that in construing statutory provisions regulating elections the courts> generally have tended to hold directory those requirements as to which the legislature has not clearly indicated a contrary intention, particularly where such requirements do not contribute substantially to the integrity of the election process." 39 Ill.2d 191, 196, 233 N.E.2d 345, 348.
It is the defendant's contention that section 19-9 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 19-9), which provides for the rejection of absentee ballots under certain specific circumstances, is the "contrary intention" of the legislature referred to in Craig, and consequently section 19-6 is directory only. She argues that the legislature, by specifying the conditions under which absentee ballots are to be rejected in section 19-9, has manifested an intention that all other irregularities such as a failure to comply with the return provisions of section 19-6 are not to result in an invalidation of the ballots. Defendant further argues that section 19-6 is directory because the absentee ballot return requirements found therein, in the words of Craig, "do not contribute substantially to the integrity of the election process." According to her analysis, the integrity of the election process is endangered only when there is proof that ballot tampering has occurred. Therefore, she takes the position that the improper return of absentee ballots does not endanger the integrity of the election process absent proof that such improper return resulted in a tampering of the ballots. She concludes because section 19-9 of the Election Code provides that ballots that are tampered with are to be rejected, a mandatory reading of section 19-9 and concomitant rejection of ballots improperly returned but untampered with does not "contribute substantially to the integrity of the election process."
1 We disagree with this contention, finding the following passage from Clark applicable and determinative of the issue before us:
"There is nothing in the record before us to indicate that any of them [the forty-six absentee ballots] were actually tampered with by any unauthorized person, but it is entirely obvious that the opportunity to do so was present. It is the entire theory of our ballot law, as expressed in all of the cases, that once a ballot has been marked by a voter in secret, from that time on it shall not be subject to any opportunity for any other person to mar, change or erase it. It will be found in all of the cases that the question for consideration by the court is not whether the ballot has been tampered with, but whether or not an unauthorized person has had an opportunity to do so. If the opportunity has been present the presumption seems to follow that it has been used." 377 Ill. 424, 430, 36 N.E.2d 563, 566.)
See Talbott v. Thompson (1932), 350 Ill. 86, 182 N.E. 784.
2 In the instant case, as in Clark, there is no evidence of any fraud or tampering with the absentee ballots. However, the method of return employed certainly presented opportunities for tampering. The absentee ballots were not returned by mail or personally by the voters to the clerk's office, but rather handed by the voters to individuals who in fact were all candidates of one political party in the election. When the ballots were returned, they were not securely kept in the township clerk's office, but instead kept until the day of the election in an open filing cabinet in Larry Burns' unlocked office. There is also testimony that prior to the election blank ballots were kept in an unlocked storeroom of the township office, and in fact on one occasion were available on a table in a recreation room of the township office to which a great many people had access. ...