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Behrman v. Whiteside School District





Appeal from the Circuit Court of St. Clair County; the Hon. Jan V. Fiss, Judge, presiding.


Plaintiffs, registered and qualified voters in Whiteside School District No. 115, St. Clair County, filed suit to contest the validity of a special election held in that district on February 26, 1985. Two of the three propositions involved in the election dealt with tax-rate increases and were defeated. The third proposition, for the building and equipping of a school addition and issuance of bonds for that purpose, was approved by the voters. In challenging this result the plaintiffs alleged, inter alia, that the ballots used in the election failed to conform to statutory requirements in that (1) the back of the ballots did not adequately state the name of the public measures to be voted on and (2) the texture of the paper ballots was such that printing or writing could be seen from the other side. Following a bench trial the trial court ruled for the defendant school district, finding that the propositions were sufficiently named on the back of the ballots as "Proposition [sic] 1, 2, and 3 For Rate Increases" and that the paper used for the ballots was in substantial compliance with the statutory requirement. The court additionally found that there was no evidence that any voter was disenfranchised or deprived of his or her right of privacy by use of these ballots. We affirm.

The ballots here at issue were printed on white paper measuring 9 1/2 by 15 inches, so that when folded in quarters and handed to the voters, they measured 4 3/4 by 7 1/2 inches. On the back of the ballots in the upper right-hand quarter was the endorsement required by statute, including the words "Official Ballot," the designation of the polling place, the date of the election, and a facsimile of the signature of the county clerk. (See Ill. Rev. Stat. 1985, ch. 46, par. 16-3.) Also appearing in this space were the words, "Proposition [sic] 1, 2, and 3 For Rate Increases," designating the public measures to be voted on. (See Ill. Rev. Stat. 1985, ch. 46, par. 16-7.) The proposition to issue bonds for the purpose of building and equipping a school addition was set forth on the front of the ballot as Proposition 1, while propositions to increase the educational-fund tax rate and the building-fund tax rate were set forth as Propositions 2 and 3, respectively.

From the testimony at trial it appeared that all of the ballots were folded in the same way, from bottom to top and then from left to right so that the endorsement was visible on the outside. All of the plaintiffs' witnesses who had voted at the election in question testified that, after voting their ballots, they had refolded them in the same manner as the ballots had been handed to them.

Sylvester Behrman, a plaintiff and voter at the instant election, testified that after voting his ballot and refolding it, he had taken the ballot to an election judge who had "held it up * * * and looked at it" before putting it in the ballot box. Behrman stated that the election judge had "had to [look at the ballot] in order to get it back into the box." He stated that although the election official had not opened the ballot, "you [could] read the votes." Behrman had made no comment or objection about the ballot at the time. He had not attempted to fold the ballot further, although no one had told him he could not.

Paul Witt, another voter in the election, testified similarly that after he had voted his ballot and refolded it, an election official had taken it from him and dropped it into the ballot box. He had not seen the election judges do anything dishonest while he was at the polling place. Looking at the reverse side of a sample ballot that had been folded in quarters, Witt stated that he could tell where Proposition 1 was located in the middle of the folded ballot. He could tell which square was for a "yes" vote and which was for a "no" vote, and he would be able to tell which square had been marked if an X were placed in either of them. Witt testified that he had not folded his ballot an additional time after refolding it in quarters because he had not wanted "to do anything different than what [was] customary."

Janet Faughn, a plaintiff, testified likewise that the "main proposition," Proposition 1, was visible through the paper ballot when it was folded in quarters and viewed from the reverse side. She had folded her ballot and put it in the ballot box herself. Faughn testified that she had understood the three propositions contained on the ballot and knew that she could vote any combination of "yeses" or "nos."

Abigail Thomas, a voter and witness for the plaintiff, testified that one could see how Proposition 1 was voted when the ballot was folded in quarters and viewed from the reverse side, although she had not been concerned about this until after the election results had been determined. She had understood that the three propositions were separate and that she could vote "yes" or "no" on any one or all three of the propositions.

Janice Delaney, county clerk for St. Clair County, testified for the defendant that following the official canvass of votes, Proposition 1 had carried by a 19-vote majority, while Propositions 2 and 3 had been defeated. No one had called her office on the day of the election to complain about the ballots or ask about folding the ballots. Delaney stated that the determination as to how the ballots were folded had been made by her election staff, and she acknowledged that she could probably see how Proposition 1 was voted by looking at the reverse side of a ballot that had been folded in quarters. When the ballot was folded one more time, however, she could not see any of the votes on the ballot. There were no restrictions on folding the ballots, and voters could fold them as many times as they wished.

Delaney testified further that the wording of the propositions on the inside of the ballots had been submitted by the school district but that her election staff had prepared the endorsement for the outside of the ballots, including the designation, "Proposition [sic] 1, 2, and 3 For Rate Increases." Information for the outside of the ballot was normally obtained from the State Board of Elections. It was Delaney's opinion that the voters had had no problem distinguishing between the three propositions because Proposition 1, for the bond issue, had carried while Propositions 2 and 3, for the tax increases, had failed.

Mark Eros, election coordinator for the county clerk's office, testified that paper is graded in pounds, with its opacity varying accordingly. The ballots used in the instant election were printed on 20-pound paper. Referring to a catalog of paper samples ranging from 20 to 140 pounds, Eros testified that no matter what grade of paper is used, printing can be seen through the paper unless it is folded over. Eros determined that printing on a business card was visible through 70-pound paper as well as through 20-pound paper. Eros further produced a sample-ballot-card envelope supplied by the State Board of Elections. The defendant's attorney had written his name and an "X" in the space provided for write-in votes, and Eros testified that this writing was distinguishable from the back of the ballot. Eros, finally, identified three paper ballots that had been used previously in school elections in St. Clair County and stated that, unless the ballots were folded more than once, it was possible to see how the ballots had been voted from the outside.

On cross-examination Eros stated that although, in the instant election, the bond issue proposition could be seen from the reverse side of the paper ballot, it "would depend on how [the ballot] was folded." If the ballot were folded an additional time or if it were folded in quarters but folded differently (from left to right and then from bottom to top), none of the votes would be visible from the outside.

Carl Solden, an election judge at Whiteside School for the election in question, testified that none of the seven plaintiffs nor Mr. Witt had complained on the day of the election that their ballot was being read or that they could not distinguish between Propositions 1, 2 and 3, nor had any of the plaintiffs asked if they could fold their ballot an additional time. Solden had not looked at any of the ballots handed to him to see how the ballots were voted, and he stated that "if anybody ever looked at [a ballot], it wouldn't be from the back. The judge would have been looking at it from the front to ascertain that the initials were all on there and that all the ballots in our precinct were initialed [before they were put in the ballot box.]"

Ray Mack, superintendent of Whiteside School, testified finally that he had been available on the day of the election but that no one had contacted him to ask questions about the three propositions at issue or about the election in general. He stated that, prior to the election, a public-relations committee from his office had sent out three "major pieces of literature" pertaining to Propositions 1, 2 and 3. This information had been distributed to ...

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