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June 28, 1994


Appeal from the Circuit Court of the 13th Judicial Circuit Bureau County, Illinois. No. 93-MR-17. Honorable Paul E. Root, Judge, Presiding.

Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

The issues presented in this election contest are whether the evidence supports an inference that 28 uninitialed election ballots had been cast by absentee voters, and, if so, whether those ballots should have been counted in the electoral results. The trial court excluded the uninitialed ballots from the election count, and as a result, petitioner Paul Bazydlo (Bazydlo) was declared the winner of the election over respondent Harry Volant (Volant). We conclude that the only possible inference to be drawn from the evidence is that the uninitialed ballots represented absentee votes and should have been included in the election count. Thus, we reverse the judgment of the trial court.

The Village of Ladd held a general election for Village President on April 20, 1993. After the completion of the official vote canvass, Volant was declared the winner by a margin of one vote. The official count was 344 to 343. During a discovery recount, a total of 28 ballots were found to be uninitialed. Of these ballots, the parties agreed that 25 were cast for Volant and 3 for Bazydlo. Several other ballots were also disputed but are not at issue here. Bazydlo filed a petition contesting the election, and the trial court conducted a full recount.

Each of the election Judges testified that all of the in-precinct ballots were initialed, counted, and verified prior to the opening of the envelope containing the absentee ballots; the in-precinct ballots matched the number of in-precinct voters that day. The envelope containing 52 absentee ballots was then opened, and these ballots were separately stacked and counted. The number of absentee ballot applications was compared with the number of returned absentee ballots, and only one absentee ballot had not been returned. At the hearing, three election Judges testified that they had helped stack the absentee ballots; each testified that more than one pile had been created, explaining that it was not possible to place 52 ballots in one stack.

After counting the absentee ballots, election Judge Peterson was to initial them and their attached ballot stubs. Peterson stated that she had two stacks of absentee ballots in front of her but could clearly recall initialing only one stack. She and the other Judges were uncertain how many ballots had been placed in each pile because they had divided them, without counting, to facilitate their work. Peterson said that the only explanation for the 28 uninitialed ballots was that one stack of absentee ballots had not been initialed, although no Judge saw any uninitialed ballots on the night of the election. After the absentee ballots had been counted and the stubs removed and separately stacked, they were combined with the in-precinct ballots and taken to the central tabulation station, where the ballots were processed.

The trial Judge agreed with Volant that during the discovery recount, 27 uninitialed ballots were found in a single group. At the evidentiary hearing, detached ballot stubs corresponding to the 28 uninitialed ballots also formed a cluster in the pile of stubs.

The twenty-eighth uninitialed ballot had been rejected by the ballot counting machine as incapable of being machine-processed due to some damage to the ballot. Upon visual inspection, this ballot was a vote for Volant and was unable to be counted with the other 27 ballots due to a physical anomaly not affecting its validity. This ballot was called spoiled ballot 4 at trial to differentiate it from the 27 uninitialed ballots that had been processed by machine. Undamaged substitute ballots duplicating each spoiled ballot had been prepared and counted on the night of the election.

After hearing the testimony of the election Judges and inspecting the ballots, the trial Judge found that none of the 28 uninitialed ballots could be readily identified as absentee ballots without speculation or conjecture. Although he conceded that no allegations or evidence of voting fraud or irregularities were present in the case, he excluded the 28 uninitialed ballots from the election count, leaving the vote count at 341 votes for Bazydlo and 320 votes for Volant. The trial court declared Bazydlo the new President of the Village of Ladd. Volant appealed.

Under section 24A-10(1)(b) of the Election Code of 1992, (10 ILCS 5/24A-10(1)(b) (West 1992)), ballots that have not been initialed by an election Judge must be marked "Defective" and excluded from the canvass. However, our supreme court has carved out an exception to the initialing requirement that allows absentee votes meeting certain criteria to be included in the count. ( Pullen v. Mulligan (1990), 138 Ill. 2d 21, 52, 561 N.E.2d 585, 598, 149 Ill. Dec. 215; Craig v. Peterson (1968), 39 Ill. 2d 191, 233 N.E.2d 345.) Under this exception, uninitialed absentee ballots may be counted only if two conditions are met: (1) they are readily identifiable and distinguishable from in-precinct ballots, and (2) the initialing requirement does not enhance the integrity of the election. Pullen, 138 Ill. 2d at 52, 561 N.E.2d at 598.

In Craig, paper ballots had been used only by absentee voters, while in-precinct ballots had been cast by machine. Thus, the court could readily distinguish in-precinct ballots from absentee ballots. In Pullen, the supreme court applied the Craig exception where absentee and in-precinct ballots were physically distinguishable because the absentee ballots had handwritten precinct numbers and the in-precinct ballots had preprinted precinct numbers. In both cases, the court determined that, absent allegations or evidence of fraud or other irregularities, the initialing requirement as applied to absentee ballots did not substantially contribute to the integrity of the election process.

Volant contends that the Craig exception should be applied to physically identical absentee and in-precinct ballots when other evidenceproves the distinctiveness of the absentee ballots. He argues that an inference created by the evidence was sufficient to readily identify the uninitialed ballots as absentee ballots and distinguish them from in-precinct ballots. He also contends that the initialing requirement is directory because initials on these absentee ballots would not contribute to the integrity of the election.

Bazydlo argues that Craig and Pullen are inapplicable because the in-precinct and absentee ballots in those cases were physically distinguishable. Instead, he claims that when absentee and in-precinct ballots are facially indistinguishable, the Craig exception should not be permitted, citing McDunn v. Williams (1993), 156 Ill. 2d 288, 620 ...

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