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02/17/95 PAUL BAZYDLO v. HARRY VOLANT ET AL. (HARRY

February 17, 1995

PAUL BAZYDLO, APPELLANT,
v.
HARRY VOLANT ET AL. (HARRY VOLANT, APPELLEE).



The Honorable Justice Freeman delivered the opinion of the court:

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

Paul Bazydlo contested the outcome of an election for village president of Ladd, Illinois. The trial court excluded 28 uninitialled ballots from the election count and declared Bazydlo the winner. The appellate court reversed, concluding that those ballots should have been included in the election results, thereby making Bazydlo'sopponent, Harry Volant, the winner. (264 Ill. App. 3d 105.) We allowed Bazydlo's petition for leave to appeal (145 Ill. 2d R. 315(a)), and now affirm the appellate court.

BACKGROUND

On April 20, 1993, the Village of Ladd held a general election for village president. Bazydlo and Volant were the only candidates. The official vote canvass showed that Volant had won by one vote, 344 to 343.

A discovery recount (see 10 ILCS 5/22-9.1 (West 1992)) revealed that a total of 28 ballots were uninitialled. Of these, 25 were cast for Volant and 3 were cast for Bazydlo.

Bazydlo filed a petition in the circuit court of Bureau County contesting the outcome of the election. (See 10 ILCS 5/23-1.1a et seq. (West 1992).) The trial court conducted a full recount of the two Hall Township precincts in which the village election was held, precinct Nos. 4 and 9. The 28 uninitialled ballots were cast in precinct No. 9.

All five election judges from precinct No. 9 testified at an evidentiary hearing. Each testified that all of the in-precinct ballots were initialled, counted, and verified prior to the opening of the envelope containing the absentee ballots. Further, the number of in-precinct ballots matched the number of in-precinct voters that day.

The envelope containing the 52 absentee ballots was then opened. These ballots were separately stacked and counted. The number of absentee ballots was compared with the number of absentee ballot applications; only one absentee ballot had not been returned. Three of the election judges stacked the absentee ballots. They formed more than one stack because it was not possible to place 52 ballots in one stack.

After the absentee ballots were counted, election judge Linda Peterson was to initial them and their attachedballot stubs. Although she had more than one stack in front of her, she clearly remembered initialling only one stack. The election judges did not know how many ballots were in each stack. No election judge actually saw any uninitialled ballots on election night. However, Peterson believed that the only explanation for the 28 uninitialled ballots was that one stack of absentee ballots had not been initialled. Only after the absentee ballots had been counted, the stubs removed, and separately stacked were they then combined with the inprecinct ballots and taken to the central tabulation station.

Volant testified that during the discovery recount, which Bazydlo also attended, 27 uninitialled ballots were found clustered in the total number of ballots cast. Likewise, detached ballot stubs to the 28 uninitialled ballots formed a cluster in the total number of stubs. The twenty-eighth uninitialled ballot, referred to at trial as "spoiled ballot 4," was damaged and, consequently, rejected by the ballot counting machine. A visual inspection revealed that this ballot was cast for Volant. It was not included with the other 27 uninitialled ballots due to the physical anomaly.

The trial court noted that there were no allegations or evidence of voting fraud. However, the court found that the 28 uninitialled ballots could not be readily identified as absentee ballots without "speculation or conjecture." Further, the court found that the cluster of uninitialled ballots and the separate cluster of corresponding ballot stubs constituted merely a "fortuitous circumstance." Accordingly, the court excluded the 28 uninitialled ballots from the election count, making Bazydlo the winner.

The appellate court reversed the trial court's judgment. The appellate court concluded that the 28 uninitialled ballots were absentee ballots and that theyshould be included in the election results, thereby making Volant ...


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