APPEAL from the Circuit Court of Fayette County; the Hon.
JOSEPH L. FRIBLEY, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This appeal stems from an election contest action brought by appellant, George Huber (Huber), to contest the election of appellee, John Reznick (Reznick), to the office of State's Attorney of Fayette County, Illinois.
Huber and Reznick were the Democratic and Republican candidates respectively for the office of State's Attorney in the general election held on November 4, 1980. Upon completion of the counting and canvassing of the votes in the 35 precincts of Fayette County, Reznick was declared to be the duly elected State's Attorney of Fayette County, as having received 4,920 votes to Huber's 4,888 votes. Discovery was instituted by Huber, and an unofficial recount of the votes in nine Fayette County precincts indicated a total vote of 4,907 for Reznick and 4,902 for Huber. Huber then filed an election contest petition, requesting an examination and recount of all ballots cast in the 35 precincts of Fayette County.
The court appointed a special canvassing board which reported that, with the exception of certain ballots set aside for determination by the court, there were 4,869 votes for Reznick and 4,870 votes for Huber. Ballots objected to by the board included those which were found not to be valid votes for either candidate, those which had been placed in envelopes for "spoiled" ballots, and unvoted absentee ballots. These ballots were put in separate envelopes according to precinct and presented to the court for a determination as to their validity in each instance.
The court heard arguments of counsel as to the ballots objected to at a hearing which began on January 30, 1981. After the ballots had been considered and ruled upon by the court, the canvassing board's total of 4,869 votes for Reznick was adjusted by 40 votes to a final total of 4,909, and the canvassing board's total of 4,870 votes for Huber was adjusted by 39 votes to a final total of 4,909. The court found that both Reznick and Huber had the "highest and an equal number of votes" for the office of State's Attorney of Fayette County and directed that the matter would be determined by lot pursuant to section 23-27 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 23-27).
At this stage in the proceedings the parties requested a continuance so that they might reach a settlement of the issues in the case. The trial court denied this request and advised counsel that they would be given a short period of time to select a method of settling the tie. When the parties failed to stipulate in this regard, the court directed the circuit clerk to flip a coin, and the coin flip was won by Reznick. The trial court declared Reznick to be the duly elected State's Attorney of Fayette County and entered judgment accordingly.
On appeal from this judgment, Huber challenges the rulings made by the trial court as to the validity or invalidity of various ballots, including three absentee ballots which Huber contends should have been opened and considered by the court. Huber also cites as error the court's refusal to grant a continuance to allow the parties time to settle the case and the court's choice of a coin flip as the method used for determining the winner by lot.
We note initially that the parties have stipulated to the canvassing board's totals of 4,869 votes for Reznick and 4,870 votes for Huber. Moreover, no objection is made as to the court's ruling on a large number of the ballots questioned by the board. We are thus asked to consider only those ballots which were the subject of interpretation and decision by the trial court and which were not agreed upon by the parties. These ballots have been designated by the precinct number and the number of the particular ballot in that precinct and will be discussed individually in numerical order.
Ballot 3-3, the first ballot for consideration, was found to be a valid vote by the trial court, which ruled that the cross before Reznick's name properly intersects within the square. Huber argues that the cross occurs on the lower line of the square and the ballot should not be counted. The rule as set forth by the supreme court in Tuthill v. Rendelman (1944), 387 Ill. 321, 347-48, 56 N.E.2d 375, 389, is that "the intersection of the cross must fall within the area formed and bounded by the lines of the square" and a cross which intersects on the line does not constitute a valid vote. This is a factual question which this court can determine as well as the trial court by examining the ballot before us. (Tuthill v. Rendelman.) We find from our examination that the horizontal line rests atop the bottom line of the square and therefore must be considered to form a cross within the square. It was not error to count this ballot as a valid vote for Reznick.
• 1 Ballot 8-1 contains a mark before Huber's name that consists of a generally horizontal line slanting down to the right and a diagonal line beginning in the upper left corner of the square. The lines meet at approximately a 45 degree angle but do not cross. The trial court ruled that the ballot was invalid for lack of a proper cross. Huber contends that although the lines do not cross they make a mark in the form of an inverted letter T, which has been held to be a cross. (Parker v. Orr (1895), 158 Ill. 609, 41 N.E. 1002; Slenker v. Engel (1911), 250 Ill. 499, 95 N.E. 618; Tuthill v. Rendelman.) The mark before Huber's name, however, is not a T. It more closely resembles a letter Y, and a Y is not a cross. (Greene v. Bjorseth (1932), 350 Ill. 469, 183 N.E. 464; Boland v. City of LaSalle (1938), 370 Ill. 387, 19 N.E.2d 177; Scribner v. Sachs (1960), 18 Ill.2d 400, 164 N.E.2d 481.) The trial court correctly found this ballot to be invalid.
Ballot 9-11 is similar to ballot 3-3 in that it involves a question of fact as to whether the intersection of the two lines occurs within the square. Upon examination we find that the point of intersection is adjacent to but not on the line that forms the side of the square. This ballot was correctly counted as a valid vote for Reznick.
• 2 Ballot 9-12 contains three large X's in the Republican party circle at the top of the ballot. The lines are heavy parallel pencil markings that cross within the circle and extend outside it. Huber contends that these lines constitute distinguishing marks which render the ballot invalid as it is highly unlikely that any other voter would mark his ballot in a similar manner. In Barlick v. Kunz (1940), 375 Ill. 318, 323, 31 N.E.2d 283, 285, the supreme court set forth the applicable test for determining what constitutes a distinguishing mark:
"Any deliberate marking of a ballot by a voter not made in an attempt to indicate his choice of candidates, which is also effective as a mark by which his ballot may be distinguished, should be considered as a distinguishing mark, invalidating the ballot. [Citation.] Conversely, if it appears that marks were placed upon a ballot as the result of an honest effort by the voter to indicate his choice of candidates and not as an attempt to indicate the identity of the voter, the ballot should not be rejected. [Citations.] Whether a particular mark upon a ballot is a distinguishing mark is largely a question of fact to be determined from an inspection of the original ballot. [Citations.]"
The markings on ballot 9-12 are all made in the Republican circle, and it does not appear that they were made for any reason other than to indicate the voter's choice of candidates. There is nothing about the manner or placement of the marks which manifests an attempt to indicate the voter's identity. For this reason, the trial court's finding that the multiple marks do not constitute a distinguishing mark ...