Appeal from the Circuit Court of Cook County Honorable RAYMOND JAGIELSKI Judge Presiding.
The opinion of the court was delivered by: Justice Gallagher
This case is a contest of the March 19, 2002, Democratic primary election for the office of representative in the Illinois General Assembly, 78th representative district. On June 24, 2002, the trial court declared the primary election void and ordered a new election to be held on September 10, 2002. The trial court's decision was based, in part, upon the United States Supreme Court decision in Bush v. Gore, 531 U.S. 98, 148 L. Ed. 2d 388, 121 S. Ct. 525 (2000). We allowed an expedited appeal pursuant to Supreme Court Rule 311 (155 Ill. 2d R. 311). On August 16, 2002, we entered an order with mandate to issue instanter, stating that an opinion would follow. See, e.g., Pochie v. Cook County Officers Electoral Board, 289 Ill. App. 3d 585, 587, 682 N.E.2d 258, 259 (1997). In that order, we reversed the judgment of the circuit court ordering a new election and remanded the matter for further proceedings. As we shall explain, this opinion, which is substantively the same as this court's previous order, now supercedes and replaces our order dated August 16, 2002.
Four candidates ran in the Democratic primary election for the office of representative in the Illinois General Assembly, 78th representative district. The 78th representative district includes part of the City of Chicago (the City) and part of Cook County (the County) outside the City of Chicago. The 78th district has 119 precincts. The division of precincts between the County and the City is 71 precincts in Oak Park, Proviso and River Forest Townships and 48 precincts in the 29th, 36th and 37th wards of the City of Chicago. The candidates in the election were respondent-appellant Dorothy Reid, petitioner-appellee Deborah L. Graham, Jesus "Jesse" Martinez, and Ted E. Leverenz. The canvass of election results showed there was a tie between Reid and Graham, each having received 6,934 votes. Candidate Ted Leverenz received 2,409 votes, and candidate Jesus Martinez received 2,231 votes. As required by statute (10 ILCS 5/22-4 (West 1998)), the State Board of Elections broke the tie by lot, which fell in favor of Reid.
On April 17, 2002, Graham filed a petition for election contest, pursuant to section 7-63 of the Election Code (10 ILCS 5/7-63 (West 1998)), which provides that any candidate whose name appears upon the primary ballot of any political party may contest the election of an opposing candidate nominated for the same office by filing a written petition with the clerk of the circuit court within 10 days after the completion of the canvass of the final returns by the canvassing board. 10 ILCS 5/7-63 (West 1998). In her petition, Graham alleged various errors in counting the ballots and requested the court to recount the ballots and declare Graham the winner. Graham later filed a first amended petition for election contest and named as respondents Reid, the Chicago Board of Election Commissioners, the Cook County clerk, the Cook County canvassing board, and the State Board of Elections. Reid then filed a counterclaim, within five days as required by section 7-63 (10 ILCS 5/7-63) (West 1998)) in which she alleged that Reid had in fact won the election, but that there were other errors in the ballot counting which would actually increase her margin of victory.
On April 30, 2002, the circuit court entered an agreed order providing that the election authorities would conduct the recount and establish how the recount would be conducted. The order also provided that the parties were excused from filing formal answers to each other's pleadings, that the parties were authorized to liberally amend their complaint or counterclaim as new facts were discovered in the recount, and that they would be deemed to deny each other's allegations.
On May 29, 2002, the Chicago Board of Election Commissioners and the Cook County clerk filed the precinct-by-precinct results of the court-ordered recount. One precinct, the 24th precinct of the 37th ward in Chicago, did not report results because the ballots had not been located. On the same day, an agreed order was entered allowing the parties to file amended pleadings. Graham was granted until May 30, 2002, to file pleadings; Reid was allowed time to file a response or counterclaim until June 6, 2002.
On May 30, 2002, Graham filed a second amended verified complaint for election contest in which she restated the basic allegations and prayers for relief contained in her previous petitions. In addition, citing Bush v. Gore, 531 U.S. 98, 148 L. Ed. 2d 388, 121 S. Ct. 525 (2000), Graham claimed that she and other voters were denied their constitutional right to vote based upon irregularities discovered during the recount. These irregularities included missing ballots from an entire precinct, namely, the 24th precinct of the 37th ward, and incorrect ballots being given to voters in split precincts. Split precincts were those in which some of the voters lived in the 78th district and others lived in another representative district, thus requiring the issuance of different ballots to each group of voters. Graham thus sought, for the first time, a new election in the 78th district or, at a minimum, a new election in those precincts which contain split representative districts and in the precinct in which ballots were missing.
On June 4, 2002, Graham filed a pleading entitled "Motion for a New Election" which contained similar allegations as the second amended verified complaint for election contest and similar references to the fundamental right to vote and requested that "before the court begins the task of deciding the candidates' fate, ballot by ballot," it consider ordering a special election to be held within 30 days. The motion for a new election was noticed up on an emergency basis.
On June 4, 2002, Reid filed a motion, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)) to strike count III of Graham's second amended verified petition for election contest. Reid also filed a motion to strike certain paragraphs of exhibit B of the second amended verified complaint for election contest. Exhibit B, entitled "Verified and Specified Grounds of Contest," was a list of alleged errors and/or omissions discovered by Graham "after due investigation independent of the discovery recounts and concluding the discovery recounts." Reid also filed a response to Graham's motion for a new election in which she argued, among other things, that the court had no authority to grant the relief requested.
On June 10, 2002, Graham filed a "Motion to Amend Petition to Add Count Relative to Voters" which was accompanied by the affidavits of these voters. In this motion, Graham argued that six voters who allegedly wanted to vote for Graham could not do so because her name was not on the ballot book in the booth they were in, and also that election judges failed to give voters in the 78th district the correct ballot, namely, a type "A" ballot. In this motion, Graham requested that these six voters "be added as additional petitioners as to Count III of the Second Amended Petition and leave be granted to file a Third Amended Petition to include the allegations contained in this Motion."
On June 14, 2002, Graham filed a third amended petition for a new election. On June 20, 2002, Reid filed an amended counterclaim setting forth various irregularities, allegedly favorable to Reid, which were found at the court-ordered recount, as well as allegations of vote fraud in the 29th ward of Chicago. Reid also filed the following three motions: (1) to dismiss the claims of the six voters on the basis that there was no private right of action under section 7-63 of the Election Code (10 ILCS 5/7-63)(West 1998)); (2) to dismiss the claim that missing ballots should require a new election; and (3) to strike the federal constitutional claims in the third amended petition because they failed to state a cause of action under applicable federal law, such as section 1983 of the federal Civil Rights Act (42 U.S.C. §1983)(1994). Reid also filed affirmative defenses.
On June 24, 2002, the trial court heard arguments on Reid's pending motions and summarily denied all of them. Thereafter, on the same day, the court conducted an evidentiary hearing on the claims in the third amended petition for election contest which were the subject of the motion for a new election. The six voter-petitioners did not testify at trial, nor were their affidavits ever offered into evidence. The only witness to testify was Robert Sawicki, assistant executive director of the Chicago Board of Election Commissioners. At the conclusion of his testimony, both sides rested. The trial court then declared the primary election void, based upon the equal protection doctrines voiced in Bush v. Gore, granted Graham's "Motion for a New Election," and ordered the new election to be held on September 10, 2002. The court also declared that this disposition rendered moot all remaining issues in the case.
On July 1, 2002, Reid filed a timely appeal in which she sought reversal of the circuit court's order granting a new election, as well as reversal of the denial of her various motions. On July 2, 2002, we granted a motion to expedite the appeal. Briefs and the record were filed on an expedited basis. On August 6, 2002, Graham filed a motion to strike the brief of appellant David Orr or, in the alternative, to strike the ...