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DeFabio v. Gummersheimer

September 14, 1999

LEONARD DEFABIO, PETITIONER-APPELLEE,
v.
JULIE GUMMERSHEIMER, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Monroe County. No. 96-MR-19 Honorable Ellen A. Dauber, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Respondent, Julie Gummersheimer, appeals from the trial court's order granting petitioner's, Leonard DeFabio's, petition for election contest and declaring DeFabio to be the coroner of Monroe County. On appeal, Gummersheimer argues that DeFabio's amended petition for election contest was time-barred, that ballots from one of the precincts should have been counted even though the election Judges failed to initial those ballots, and that the trial court erred in refusing to hear evidence relative to the conduct of the election. We affirm.

FACTS

On December 5, 1996, DeFabio filed a petition for election contest, alleging in pertinent part that he was the Democratic candidate for coroner in the November 5, 1996, general election, that Gummersheimer was the Republican candidate for coroner, and that on November 8, 1996, the Monroe County Canvassing Board declared Gummersheimer to be the winner of the coroner's race by a margin of two votes (5,660 votes for Gummersheimer and 5,658 votes for DeFabio). DeFabio alleged in his petition that the results of the vote for coroner were invalid because none of the 524 ballots cast in precinct 2 were initialed by an election Judge, as required by sections 17-9, 19-8, and 20-9 of the Election Code (10 ILCS 5/17-9, 19-8 and 20-9 (West 1996)), and that Gummersheimer received 290 votes and DeFabio received 212 votes in precinct 2.

DeFabio also alleged that several ballots in other precincts were not initialed by an election Judge and that other irregularities occurred in certain precincts. DeFabio requested the court to examine and recount the ballots in precincts 2, 11, 23, and 24, to void any ballots that were uninitialed or cast in any other improper manner, to correct the results of the coroner's election in accordance with applicable law, and to declare DeFabio the winner of the election for Monroe County coroner.

Gummersheimer filed a motion to dismiss the petition, claiming that it was insufficient in law because it failed to include an assertion that a recount would change the results of the election. In an order dated April 9, 1997, the trial court found, "Respondent's motion to dismiss should be denied except to the extent that Petitioner should be granted five (5) days to file an amended petition specifically alleging that the irregularities complained of likely will change the election result." DeFabio filed an amended petition alleging the same irregularities as in his original complaint and adding the allegation, "[A] recount herein, as a result of the above described irregularities, will change the result of the election herein."

Gummersheimer filed a response to the amended petition, denying that a recount would change the outcome of the election and including, inter alia, the following affirmative defenses: (1) the ballots without an election Judge's initials on them should be counted in order to "avoid the unconstitutional disenfranchisement of the said voters" and (2) the amended petition "is time-barred as having been filed after the statutory deadline."

On November 18, 1997, a hearing was held to recount the votes for coroner. At the Conclusion of the hearing, DeFabio and Gummersheimer stipulated to the total number of votes for each party in each precinct recounted, and they stipulated to the number of uninitialed ballots in each precinct. The trial court took under advisement its rulings on ballots upon which the parties could not agree, including the question of the effect of the uninitialed ballots.

On December 1, 1997, DeFabio filed a motion for summary judgment. In the motion, DeFabio alleged that as a result of the recount it was stipulated as follows:

"A. Monroe County Precinct #2 - 524 votes were uninitialled [sic][,] and of those, 212 were cast for DeFabio and 290 were cast for Gummersheimer. [The parties also agreed that an additional 19 votes in that precinct should not be counted, and the court ruled that an additional three ballots would not be counted, for reasons other than they lacked Judge's initials.]

B. Monroe County Precinct #11 - 1 vote was uninitialled [sic] and it was cast for DeFabio.

C. Monroe County Precinct #23 - 16 votes were uninitialled [sic][;] 6 had been cast for DeFabio and 10 for Gummersheimer.

D. Monroe County Precinct #24 - 42 votes were uninitialled [sic][;] 28 had been cast for Gummersheimer and 14 for DeFabio." DeFabio alleged that there was no genuine issue of material fact because the legal effect of uninitialed ballots is that they may not be counted, pursuant to both the Election Code (10 ILCS 5/1-1 et seq. (West 1996)) and case law.

Gummersheimer filed a response to the motion for summary judgment, alleging that there was a genuine issue of material fact as to the legal effect of the uninitialed ballots. Gummersheimer also filed a memorandum of law with seven affidavits attached. The affidavits were signed by witnesses whom Gummersheimer wanted to call to testify that the failure of the election Judges to initial the ballots in precinct 2 was an unintentional mistake and that at least two registered voters who voted in precinct 2 did not notice the lack of initials on their ballots when they voted, even though both were both practicing attorneys.

On April 16, 1998, the trial court entered an order granting DeFabio's motion for summary judgment. The trial Judge's order sets forth her reasoning, in relevant part, as follows: "None of the ballots cast in Precinct #2 were initialed [sic] by an election Judge as required by the Election Code. 10 I.L.C.S. 5/24A-10(1)(b). The issue before the court is whether these uninitialled [sic] ballots from Precinct #2 should be counted. ***

After considering all relevant pleadings, memoranda[,] and argument[] and reviewing all relevant cases, the Court finds that there is no genuine issue of material fact, and Petitioner is entitled to summary judgment. The issue of whether uninitialled [sic] ballots can be counted has been considered several times in Illinois, and the decision in each case has been that ballots cast in person cannot be counted, while absentee ballots may be counted under certain circumstances. The Supreme Court has long held that initialing [sic] requirements for election Judges are mandatory. [Citations.] ***

***

Respondent seeks to present evidence to show the absence of fraud, the lack of knowledge of the voters, and the innocent mistakes of the election Judges. The Supreme Court has held, however, that these issues are not relevant in determining whether to count uninitialled [sic] in-precinct ballots, as the initialing [sic] requirement is mandatory even in the absence of any fraud.

Respondent also urges this Court to apply a different standard because application of the long-settled rule would disenfranchise an entire precinct in this case. She asks this Court to balance the interests of a fair election against the possibility of disenfranchising an entire precinct with no showing of fraud. The parties and the Court have been unable to find any case in which the ballots for an entire precinct would be disregarded because of the application of the initialing [sic] requirement, but this Court will not apply a new standard in light of clear holdings from the Supreme Court finding the initialing [sic] requirement to be mandatory. In its previous holdings that the initialing [sic] requirement is mandatory for in-precinct ballots, the Supreme Court clearly balanced the importance of every individual's right to vote against the interest in preserving the integrity of an election. Is that balance changed if the 524 disenfranchised voters comprise the entire voting population of the precinct, ...


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