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DeFabio v. Gummersheimer

July 06, 2000

LEONARD DEFABIO, APPELLEE, V. JULIE GUMMERSHEIMER, APPELLANT.


The opinion of the court was delivered by: Justice Rathje

Agenda 22-May 2000.

The sole issue presented is whether the circuit court of Monroe County properly invalidated every ballot cast in a particular precinct, where none of those ballots contain the requisite initials from an election judge.

BACKGROUND

On November 5, 1996, the voters of Monroe County cast ballots to decide whether Julie Gummersheimer or Leonard DeFabio would serve as the county's next coroner. Two days later, the Monroe County canvassing board declared Gummersheimer the winner by two votes.

DeFabio then filed a petition for election contest, alleging in pertinent part that the official election results were invalid because, in violation of sections 17-9, 19-8, and 20-9 of the Election Code (10 ILCS 5/17-9, 19-8, 20-9 (West 1998)), none of the 524 ballots cast in Monroe County's second precinct were initialed by an election judge. In the second precinct, Gummersheimer received 290 votes and DeFabio received 212 votes. DeFabio asked the trial court to examine the ballots cast in the second precinct, to invalidate any ballots that were not initialed, to recount the valid ballots, and to declare DeFabio the winner of the November 6 election. Gummersheimer moved to dismiss the petition as both facially deficient and time-barred, and the trial court denied that motion.

After the parties stipulated to both the total number of ballots cast for each candidate and the number of uninitialed ballots in each precinct, DeFabio moved for summary judgment. DeFabio noted that the parties had stipulated that, of the 524 uninitialed ballots cast in the second precinct, 290 were cast for Gummersheimer and 212 were cast for DeFabio. In addition, of the 59 uninitialed ballots cast in other precincts, 38 were cast for Gummersheimer and 21 were cast for DeFabio. DeFabio argued that, in light of the stipulation, no genuine issue of material fact existed because, pursuant to both the Election Code and case law, the uninitialed ballots were legally invalid and could not be counted.

In her response to DeFabio's summary judgment motion, Gummersheimer argued that a genuine issue of material fact existed as to the legal effect of the uninitialed ballots cast in the second precinct. In support, Gummersheimer attached affidavits from (1) the second precinct election judges, who would testify that the absence of initials was due to mistake rather than to fraud or corruption; and (2) two second precinct voters who failed to notice that the election judge had not initialed the ballots.

The trial court granted DeFabio's summary judgment motion. In so doing, the trial court explained that, according to both the Election Code and the Illinois Supreme Court, the initialing requirement is mandatory for in-precinct ballots, *fn1 uninitialed ballots are invalid and cannot be counted, and the absence or existence of fraud is irrelevant to determining whether uninitialed in-precinct ballots are valid. The trial court therefore invalidated all of the uninitialed ballots, including every ballot cast in the second precinct, and declared DeFabio the winner by 92 votes. After allowing Gummersheimer's petition to recount the ballots from 10 additional precincts, the trial court modified its order and declared DeFabio the winner by 70 votes.

The appellate court affirmed the trial court's judgment. 307 Ill. App. 3d 381, and this court granted Gummersheimer's petition for leave to appeal (177 Ill. 2d R. 315(a)).

ANALYSIS

The fundamental issue in this case is whether the trial court properly invalidated all of the ballots cast in Monroe County's second precinct. We hold that it did.

Section 24A-10.1 of the Election Code provides that,"[i]f any ballot card or ballot card envelope is not initialed, it shall be marked on the back `Defective', initialed as to such label by all judges immediately under the word `Defective' and not counted." (Emphasis added.) 10 ILCS 5/24A-10.1 (West 1998). For more than 100 years, this court has "adhered to the rule that statutes requiring election judges to initial ballots are mandatory, and that uninitialed ballots may not be counted." McDunn v. Williams, 156 Ill. 2d 288, 311 (1993); see also Morandi v. Heiman, 23 Ill. 2d 365 (1961); Griffin v. Rausa, 2 Ill. 2d 421 (1954); Tuthill v. Rendelman, 387 Ill. 321 (1944); Laird v. Williams, 281 Ill. 233 (1917); Kelly v. Adams, 183 Ill. 193, 195 (1899). This is true even where the parties agree that there was no knowledge of fraud or corruption. McDunn, 156 Ill. 2d at 320.

To be sure, this court has permitted relaxation of the mandatory initialing requirement under very limited circumstances. Specifically, this court has permitted the counting of only uninitialed absentee ballots that are easily distinguished from in-precinct ballots. See, e.g., Pullen v. Mulligan, 138 Ill. 2d 21 (1990); Craig v. Peterson, 39 Ill. 2d 191 (1968). However, this court has never permitted relaxation of the mandatory initialing requirement for in-precinct ballots. In fact, this court has repeatedly rejected such a notion. In Kelly, this court stated:

"To ignore this provision of the statute and allow ballots to be counted which do not contain the official endorsement would authorize the voting of ballots that might have been surreptitiously obtained or copied, and one of the purposes of the Ballot law be entirely ...


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