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[W] Qualkinbush v. Skubisz

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS FIRST DISTRICT SECOND DIVISION


December 28, 2004; Opinion Withdrawn and new opinion filed March 31, 2005

MICHELLE MARKIEWICZ QUALKINBUSH, PETITIONER-APPELLEE,
v.
GREGORY SKUBISZ, RESPONDENT-APPELLANT,
(DAVID ORR, AS COOK COUNTY CLERK, DOMINICK GIGLIOTTI, MICHELLE MARKIEWICZ QUALKINBUSH, ROBERT FIORETTI, AS THE CALUMET CITY CANVASSING BOARD, DOMINICK J. GIGLIOTTI AND NICK MANOUSOPOULOS, RESPONDENTS).
GREGORY SKUBISZ, COUNTERPETITIONER,
v.
MICHELLE MARKIEWICZ QUALKINBUSH, AS CALUMET CITY CLERK, DAVID ORR, AS COOK COUNTY CLERK, AND THE CITY OF CALUMET CITY, COUNTERRESPONDENTS.

Appeal from the Circuit Court of Cook County. Honorable Michael J. Murphy, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Burke

Respondent and counterpetitioner Gregory Skubisz*fn1 appeals from an order of the circuit court certifying the April 1, 2003, mayoral election results for Calumet City in which the court declared petitioner and counterrespondent Michelle Qualkinbush mayor. On appeal, Skubisz contends that the trial court erred in failing to dismiss Qualkinbush's petition for election contest on the basis that section 19-6 of the Election Code (10 ILCS 5/19-6 (West 2002)), the absentee ballot return provision, was preempted by the federal Voting Rights Act (42 U.S.C. §1973aa-6 (2003)) and the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §12132 (1995)), and that section 19-6 violates equal protection principles.*fn2

[9]     [Nonpublishable material under Supreme Court Rule 23 removed here].

For the reasons set forth below, we affirm.

STATEMENT OF FACTS

This lawsuit arose as a result of a special election held on April 1, 2003, for mayor of Calumet City. Four candidates ran for office: Skubisz, Qualkinbush, Dominick Gigliotti, and Nick Manousopoulos. After the ballots had been tallied, the results were: Skubisz, 2,542 votes; Qualkinbush, 2,518 votes; Gigliotti, 718 votes; and Manousopoulos, 1,480 votes. Skubisz was installed as the mayor on May 1.

On May 2, Qualkinbush filed a verified petition for election contest, alleging voter irregularities, including insufficient reasons being given by physically incapacitated voters on their applications for absentee ballots, improper assistance was given to disabled voters by members of Skubisz's campaign, particularly Michael Kaszak, voters failed to disclose that assistance had been given to them, and illegal delivery or mailing of absentee ballots by Skubisz or members of his campaign. On June 9, Skubisz filed a verified counterpetition for election contest, also alleging voting irregularities and challenging the validity of section 19-6 of the Election Code. With respect to the validity of section 19-6, Skubisz also filed a motion to dismiss Qualkinbush's petition. Subsequent to a hearing on July 2, the trial court concluded that section 19-6 was in compliance with the Voting Rights Act and ADA and it did not violate equal protection principles. Accordingly, the trial court denied Skubisz's motion to dismiss Qualkinbush's petition on the basis of preemption and equal protection.

Following the bench trial and rendering its rulings on the other issues raised by the parties, the court found the final result of the election was 2,530.642 votes for Qualkinbush and 2,504.0523 votes for Skubisz. Based on these totals, the court declared Qualkinbush to be the winner.

On the same day of the trial court's decision, Skubisz filed a motion to stay enforcement pending appeal, as well as a notice of appeal. The court granted Skubisz's motion to stay until 5 p.m. on September 3, 2003. Qualkinbush was installed as mayor after the expiration of this time.

ANALYSIS

Validity of Section 19-6

A. Voting Rights Act and ADA

Skubisz contends that the trial court erred in denying his motion to dismiss with respect to 34 votes*fn3 because section 19-6 of the Election Code is preempted by and violates the Voting Rights Act and ADA since it restricts the individuals whom an absentee voter can entrust their ballot with for mailing. Specifically, Skubisz maintains that section 19-6 impermissibly infringes upon the superior rights set forth by the Voting Rights Act and wrongly denies benefits to and/or discriminates against disabled voters in violation of the ADA.

Qualkinbush contends that the trial court's finding that section 19-6 is valid was proper. According to Qualkinbush, McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 22 L.Ed. 2d 739, 89 S.Ct. 1404 (1969), answers the constitutional questions here and speaks directly to the points raised by Skubisz.*fn4

"It has been established beyond question that there is a fundamental right to vote." Griffin v. Roupas, No. 02 C 5270 (N.D. Ill. September 22, 2003), citing Burdick v. Takushi, 504 U.S. 428, 433, 119 L.Ed. 2d 245, 252, 112 S.Ct. 2059, 2063 (1992). Despite this principle, however, "there is no corresponding fundamental right to vote by absentee ballot." Griffin, slip op. at ___, citing McDonald, 394 U.S. at 807, 22 L.Ed. 2d at 745, 89 S.Ct. at 1408. Specifically, the Supreme Court has held that the right to vote in any manner is not absolute. Burdick, 504 U.S. at 433, 119 L.Ed. 2d at 252-53, 112 S.Ct. at 2063. Instead, the Court has "recognized that states retain the power to regulate their own elections." Burdick, 504 U.S. at 433, 119 L.Ed. 2d at 253, 112 S.Ct. at 2063. As the Griffin court stated,

"[i]t has long been held that the states' powers to determine the conditions under which the right to suffrage may be exercised broadly, so long as they do not do so in a discriminatory manner. [Citation.] The courts have held that the Constitution does not prohibit the States from enacting laws which incidentally burden election laws in order to ensure their integrity. [Citation.]

'Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.' [Citations.]" Griffin, slip op. at ___.

Section 19-6 of the Election Code provides:

"*** The voter shall then endorse his certificate upon the back of the envelope and the envelope shall be mailed in person by such voter, postage prepaid, to the election authority issuing the ballot or, if more convenient, it may be delivered in person, by either the voter or by a spouse, parent, child, brother or sister of the voter, or by a company licensed as a motor carrier ***. It shall be unlawful for any person not the voter, his or her spouse, parent, child, brother, or sister, or a representative of a company engaged in the business of making deliveries to the election authority to take the ballot and ballot envelope of a voter for deposit into the mail unless the ballot has been issued pursuant to application by a physically incapacitated elector under Section 3-3 or a hospitalized voter under Section 19-13, in which case any employee or person under the direction of the facility in which the elector or voter is located may deposit the ballot and ballot envelope into the mail. ***." 10 ILCS 5/19-6 (West 2002).

The return provisions of section 19-6 are mandatory, not directory. People v. Deganutti, 348 Ill. App. 3d 512, 810 N.E.2d 191 (2004). The purpose of this provision is to " 'safeguard the integrity of the election process by depriving unauthorized persons of the opportunity to tamper with ballots after they have been completed.' [Citation.]" Deganutti, 348 Ill. App. 3d at 519. The relevant inquiry, however, " 'is not whether a ballot has actually been tampered with, but whether the opportunity for such tampering by unauthorized persons was present.' [Citation.]" Deganutti, 348 Ill. App. 3d at 519.

Section 1973aa-6 of the Voting Rights Act provides: "Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union." 42 U.S.C. §1973aa-6 (2003). Section 12132 of the ADA provides: "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. §12132 (1995).

Initially, we note that Skubisz cites no authority to establish that the Voting Rights Act is applicable to local elections. In fact, there is authority to the contrary--the Voting Rights Act is only applicable to federal elections. In re Thirteen Ballots Cast in 1985 General Election in Burlington County, 209 N.J. Super. 286, 289, 507 A.2d 314, 315 (1985); M. Waterstone, Constitutional and Statutory Voting Rights for People With Disabilities, 14 Stan. L. & Policy Rev. 353, 358 (2003). Moreover, the ADA is merely a broad discrimination statute that does not specifically address voting. In any event, we will presume these provisions are applicable to the election sub judice.

"The preemption doctrine provides that in some instances a federal law will override state laws on the same subject." Cohen v. McDonald's Corp., 347 Ill. App. 3d 627, 633, 808 N.E.2d 1 (2004). This doctrine requires us to examine the federal legislation and determine whether Congress intended it to supplant state laws on the same subject. Cohen, 347 Ill. App. 3d at 633. Specifically,

"[f]ederal statutes and regulations can preempt state law in the following circumstances: (1) the language of the statute or regulation expressly preempts state law; (2) Congress implemented a comprehensive regulatory scheme in a given area, removing the entire field from state law; or (3) state law as applied conflicts with federal law." Cohen, 347 Ill. App. 3d at 633.

With respect to these three bases, the following principles are relevant:

"Absent explicit preemptive language, courts may infer Congress's intent to preempt where a federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it or where a federal statute touches a subject or an object in which the federal interest is so dominant that the federal system will be assumed to preclude the enforcement of state laws on the same subject. [Citations.]

Even when Congress has not completely displaced state regulation of a specific subject or object, state law is nullified to the extent that it actually conflicts with federal law. [Citations.] Actual conflicts arise when it is physically impossible to comply with both federal and state regulations or when state law interferes with the accomplishment and execution of the purposes and objectives of Congress." Cohen, 347 Ill. App. 3d at 633-34.

Preemption is a question of law, which we review de novo. Ramette v. AT & T Corp., 351 Ill. App. 3d 73, 75, 812 N.E.2d 504 (2004).

Although Skubisz cites general boilerplate preemption law, he does not specify which basis he relies upon here. However, clearly it is not either of the first two of the three possible preemption bases. Neither the Voting Rights Act nor the ADA expressly state that they preempt state law on the issue of voting by disabled individuals, let alone absentee voting, particularly, who can assist a disabled voter, and, more particularly, who can return an absentee ballot for a disabled voter. Moreover, the federal legislation is not so pervasive nor is a federal interest so dominant that preemption would exist under the second basis. As stated above, it has long been recognized and been the law in the United States that individual states have the right to incidentally burden election laws and regulate elections in their own territories. See Clark v. Quick, 377 Ill. 424, 427, 36 N.E.2d 563 (1941) ("No one doubts the legislative power to prescribe reasonable conditions [on the right to vote]"). See also Curry v. Baker, 802 F.2d 1302, 1315 (11th Cir. 1986) ("our federal system contemplates that states will be primarily responsible for regulating their own elections").

The only basis Skubisz can rely upon is the third one. Thus, the question before us is whether section 19-6 actually conflicts with the Voting Rights Act or ADA. Skubisz's arguments do not address this question. Moreover, Skubisz cites no authority stating that section 19-6 is preempted by either the Voting Rights Act or the ADA because it limits who may deliver an absentee voter's ballot. Although Skubisz cites DiPietrae v. City of Philadelphia, 666 A.2d 1132 (Pa. Commw. Ct. 1995) in support of his argument that the Voting Rights Act applies to absentee voting, this case does not address Skubisz's position that the federal provisions preempt the limitation on who may return an absentee ballot in section 19-6. In DiPietrae, the trial court entered an order, directing that

"disabled voters [were] authorized to appoint any person of their choice as their agents to obtain absentee ballot applications, to deliver absentee ballot applications to the Board of Elections, to obtain absentee ballots, and to deliver completed absentee ballots to the Board of Elections in person or by mail with the limitation that an individual cannot be the agent for persons living in more than one household." (Emphasis added.) DiPietrae, 666 A.2d at 1133.

On appeal, the question was whether the trial court erred in allowing this assistance. DiPietrae, 666 A.2d at 1132-33. The Pennsylvania statute governing return of absentee votes provided: "Such envelope [containing the completed absentee ballot] shall then be securely sealed and the elector shall send same by mail, postage prepaid, except where franked, or deliver it in person to said county board of electors." DiPietrae, 666 A.2d at 1135. The disabled voters, in arguing that the trial court did not err in allowing them assistance, contended that the ADA "impose[d] an affirmative duty upon state and local governmental agencies to assure that all persons with disabilities are effectively able to exercise their constitutionally guaranteed rights, none of which is more important than the right to vote." DiPietrae, 666 A.2d at 1135. The voters further argued that the Voting Rights Act provides that a disabled voter may be given assistance by a person of the voter's choice. DiPietrae, 666 A.2d at 1135. The DiPietrae court concluded that "the trial court properly allowed a disabled voter to appoint a person of his or her choice to obtain an absentee ballot application, to deliver it to the Election Board, to obtain an absentee ballot from the Board and to deliver the completed ballot either to the mail box or to the Board." DiPietrae, 666 A.2d at 1135. However, the court further specifically found that "[t]he trial court's proviso that 'an individual cannot be the agent for persons living in more than one household' appear[ed] to be a reasonable means of balancing the rights of a disabled person who wishes to vote with the public need to insure a fair election." DiPietrae, 666 A.2d at 1135-36.

Skubisz ignores the court's language in DiPietrae upholding the limitation on who may deliver an absentee voter's ballot, i.e., someone in a position similar to that of himself and his workers in the instant case since they acted as an agent for more than one household. Certainly, Dipietrae recognized the need for assistance in mailing absentee ballots, but also recognized the need to restrict those individuals who may do so to protect the integrity of the election process and found such restrictions permissible under the Voting Rights Act and ADA. Contrary to Skubisz's argument, DiPietrae supports a finding that states may limit who can return absentee ballots despite the language of the Voting Rights Act and ADA.

Our independent research has disclosed only one case that has directly addressed the question of whether the Voting Rights Act preempts a state law restricting the individuals who may mail disabled voter's absentee ballots. In In re Thirteen Ballots, the question before the court was the validity of 13 absentee ballots in a local election that had been delivered to the election board with certifications that the voters had been assisted by a candidate in the election in preparing their ballots because of illness or disability.

In re Thirteen Ballots, 209 N.J. Super. at 288, 507 A.2d at 315. The New Jersey statute provided for assistance to an incapacitated absentee voter, but specifically provided that "[i]n no event may a candidate for election provide such assistance, nor may any person, at the time of providing such assistance, campaign or electioneer on behalf of any candidate." In re Thirteen Ballots, 209 N.J. Super. at 288, 507 A.2d at 315. The court then quoted section 1973aa-6 of the Voting Rights Act and noted that the issue before it was which provision controlled--the state or federal. In re Thirteen Ballots, 209 N.J. Super. at 289, 507 A.2d at 315. The In re Thirteen Ballots court concluded that "the New Jersey statute is not affected by the quoted provision of the Voting Rights Act when national candidates are not running for election." In re Thirteen Ballots, 209 N.J. Super. at 289, 507 A.2d at 315. According to the court, "[t]he clear purpose of the New Jersey statute's prohibition against absentee voter assistance by a candidate is the prevention of fraud. The prospect of improper influence of voter choices in such circumstances is obvious and underlined by problems previously reported [in other elections in New Jersey]." In re Thirteen Ballots, 209 N.J. Super. at 289, 507 A.2d at 315. In rejecting the superiority of the Voting Rights Act to the state election at issue, the In re Thirteen Ballots court stated:

"The federal statute ignores the possibilities of fraud in its provisions permitting assistance to absentee voters. It is not our role to debate its wisdom. We are, however, obliged to recognize its limitations. The Voting Rights Act and amendments thereto provided Congress with authority to control national elections and, to a limited extent, state elections. Its control of the latter is confined to the enactment of legislation enforcing provisions of the United States Constitution, notably, in the present case, its Thirteenth, Fourteenth, Fifteenth, Nineteenth and Twenty-fourth Amendments. The majority of the United States Supreme Court so held in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), in which, among other things, it upheld the provisions of the act lowering the voting age to 18 in national elections, but struck down the extension of those provisions to state and local elections." In re Thirteen Ballots, 209 N.J. Super. at 289, 507 A.2d at 315.

Thereafter, the court concluded that the "prohibition against candidate assistance to absentee voters is not discriminatory [and i]t is a reasonable regulation of our voting machinery, properly designed to prevent fraud." In re Thirteen Ballots, 209 N.J. Super. at 289, 507 A.2d at 316. See also Gramlich v. Cottrell, 204 N.J. Super. 490, 492-94, 499 A.2d 275, 275-77 (1985) (finding 18 absentee ballot votes invalid because a candidate or an agent of the candidate improperly provided assistance to 18 residents of a nursing home, noting that the no-candidate assistance provision was included because the legislature had "a clear desire to increase [the] government's ability to guarantee the integrity of absentee voting procedures [and o]f particular concern were those isolated from the rest of the community due to illness or infirmity"); Gooch v. Hendrix, 5 Cal. 4th 266, 279-80, 851 P.2d 1321, 1329, 19 Cal. Rptr. 2d 712, 720 (1993) (holding that absentee ballots collected from disabled voters by a political association and returned in person or mailed by members of this association were void since such conduct violated the California statute providing that only a "spouse, child, parent, grandparent, grandchild, brother, or sister" could return such ballot).

These cases, although not binding on us, are persuasive and support a conclusion that, even in light of the federal provisions, states may impose restrictions on those individuals who may return a disabled voter's absentee ballot, and that such restrictions may be above and beyond those set forth in the Voting Rights Act. See also 3 McQuillin Municipal Corporations §12.16, at 163 (3d ed. 2001) (stating that state statutes may proscribe assistance by only certain persons and, if the state statute is more restrictive than the Voting Rights Act, then it applies only to local elections).

Skubisz also relies on the Senate Judiciary Committee comments to the 1982 amendments to the Voting Rights Act. However, when read in context, the legislative concerns clearly related to in-booth voting as established by the very language of the comments. Specifically, the comments included phrases such as: "within the voting booth," "discriminated against at the polls," "permit them [the disabled voters] to bring into the voting booth a person whom the voter trusts and who cannot intimidate him," and " 'pull the lever of a voting machine.' " S. Rep. 97-417, 1982 U.S.C.C.A.N. 177, 240 (May 25, 23, 1982). There is nothing in these comments relating specifically, or inferentially, to absentee ballot voting, and, more specifically, to the return of absentee ballots.

Moreover, and quite importantly, Skubisz ignores the clear basis set forth by the legislature for allowing a voter to choose who will assist him or her--the potential for undue influence and manipulation. In this respect, the committee stated that "because of their need for assistance, members of these groups are more susceptible than the ordinary voter to having their vote unduly influenced or manipulated." S. Rep. 97-417, 1982 U.S.C.C.A.N. at 240. In further discussing its concerns, a member of the committee stated: "The committee is concerned that some people in this situation do in fact elect to forfeit their right to vote. Others may have their actual preference overborne by the influence of those assisting them or be misled into voting for someone other than the candidate of their choice." S. Rep. 97-417, 1982 U.S.C.C.A.N. at 240-41. As such, the committee concluded that the only way "to avoid possible intimidation or manipulation of the voter" was to allow the voter to choose whom they desire to assist them." S. Rep. 97-417, 1982 U.S.C.C.A.N. at 241.

Lastly, Skubisz ignores the plain language used by the committee with respect to preemption. Specifically, a member of the committee stated:

"The committee recognizes the legitimate right of any state to establish necessary election procedures, subject to the overriding principle that such procedures shall be designed to protect the rights of voters. State provisions would be preempted only to the extent that they unduly burden the right recognized in this section, with that determination being a practical one dependent upon the facts." (Emphasis added.) S. Rep. 97-417, 1982 U.S.C.C.A.N. at 241.

Clearly, the core concern in allowing assistance of a person of the voter's choice was the integrity of the vote. This, too, is the general purpose of election laws. It is evident that the integrity of a vote is even more susceptible to influence and manipulation when done by absentee ballot. See, e.g., State ex rel. Whitley v. Rinehart, 140 Fla. 645, 651, 192 So. 819, 823 (1939) (the "purity of the ballot is more difficult to preserve when voting absent than when voting in person"). This is precisely what section 19-6 protects against--it prevents a candidate or his or her agent from asserting undue influence upon a disabled voter and from manipulating that voter into voting for the candidate or the agent's candidate. It is designed to protect the rights of disabled voters. Certainly, then, section 19-6 of the Election Code does not conflict with the intent and purpose of the Voting Rights Act or ADA. Moreover, engaging in a practical determination, as the federal legislature itself said was applicable, we do not find that the restriction on who may return an absentee ballot for a disabled voter under section 19-6 unduly burdens that individual's right to vote and, thus, is not preempted by the Voting Rights Act. Skubisz has not established that the federal legislature intended to preempt the rights of state legislatures to restrict absentee voting, and, particularly, who may return absentee ballots. Such a finding is simply not supported by the language of the federal provisions, the history and comments thereto, or the clear intent of Congress. Accordingly, we find that the trial court did not err in denying Skubisz's motion to dismiss on the basis that section 19-6 of the Election Code was preempted by the Voting Rights Act or ADA and did not err in invalidating the 38 votes.

B. Equal Protection

Skubisz next contends that section 19-6 is unconstitutional because it violates equal protection principles, maintaining that we must apply the strict scrutiny test since the right to vote is a fundamental right. Skubisz argues that the restriction as to who can assist absentee voters is not the least restrictive means of attaining the goal of the statute. Skubisz further maintains that the Illinois statute allows similarly situated incapacitated voters, those hospitalized (section 19-13 of the Election Code), to pick any person of their choice to mail their ballots.

Qualkinbush contends that section 19-6 does not violate equal protection. Qualkinbush maintains that the right to vote is not at issue and, therefore, the strict scrutiny test does not apply. Qualkinbush also argues that the hospital voter provision is very specific and narrow in its application and far more restrictive and burdensome than section 19-6 and, therefore, is not comparable.

Initially, as stated above, the right to vote is a fundamental right, but the right to vote by absentee ballot is not a fundamental right. As such, Skubisz's argument that the strict scrutiny test applies is erroneous. Griffin, slip op. at ___. Moreover, with respect to the right to vote, the Supreme Court has recently endorsed a "flexible standard" in addressing constitutional challenges to voting laws. Burdick, 504 U.S. at 434, 119 L.Ed. 2d at 253, 112 S.Ct. at 2063. Specifically, in Burdick, the Court held:

"A court considering a challenge to a state election law must weigh 'the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against 'the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration 'the extent to which those interests make it necessary to burden the plaintiff's rights.' [Citation.]" Burdick, 504 U.S. at 434, 119 L.Ed. 2d at 253, 112 S.Ct. at 2063.

In other words,

"[t]he rigorousness of a court's scrutiny depends upon the extent to which a challenged regulation burdens Fourteenth Amendment rights. [Citation.] Thus, when such rights are subjected to 'severe' restrictions, the regulation must be 'narrowly drawn to advance a state interest of compelling importance.' [Citation.] However, when a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' upon Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions. [Citation.]" Griffin, slip op. at ___.

As noted above, Qualkinbush maintains that McDonald answers all of the constitutional questions raised here. Conversely, Skubisz maintains that Goosby v. Osser, 409 U.S. 512, 35 L.Ed. 2d 36, 93 S.Ct. 854 (1973), overrides McDonald. We need not address either case in detail since they are not directly on point and do not address the precise issue raised in the instant case. The Court in McDonald concluded that the Illinois Election Code, which denied the petitioners who were pretrial detainees the ability to receive an absentee ballot, did not deny them equal protection, finding that it was not the right to vote at stake, "but a claimed right to receive absentee ballots." McDonald, 394 U.S. at 807, 22 L.Ed. 2d at 745, 89 S.Ct. at 1408. Specifically, the Court concluded that neither the absentee ballot provisions nor the Election Code, as a whole, operated to deny or preclude pretrial detainees the ability to vote at all. McDonald, 394 U.S. at 807-08, 22 L.Ed. 2d at 745, 89 S.Ct. at 1408. As such, the absentee ballot provision did not deny the petitioners equal protection of law. In Goosby, the Pennsylvania petitioners again were pretrial detainees and made a similar claim as that made in McDonald. The Goosby Court, however, distinguished McDonald and found that its holding was not controlling because the Pennsylvania election scheme, unlike the Illinois scheme, absolutely prohibited the petitioners from voting. Goosby, 409 U.S. at 521, 35 L.Ed. 2d at 44, 93 S.Ct. at 860. As such, the Goosby Court found there was a "significant difference" between the two schemes. Goosby, 409 U.S. at 522, 35 L.Ed. 2d at 44, 93 S.Ct. at 861. The Goosby Court did not decide the merits of the petitioners' equal protection claim and specifically stated it was making no judgment on the merits. Goosby, 409 U.S. at 522, 35 L.Ed. 2d at 44, 93 S.Ct. at 861. Clearly, contrary to Skubisz's argument, Goosby does not overrule or "override" the holding of McDonald. In any event, as stated above, neither case addresses the question before this court and, therefore, neither is controlling.

We find that the burden placed upon absentee voters by the restriction on who may mail an absentee ballot in section 19-6 is slight and is nondiscriminatory. This provision limits the number of third parties who come in contact with an absentee ballot and provides a safeguard that the ballot will be voted based on the intent of the voter, not someone else. Additionally, this provision limits the number of third parties who come in contact with the absentee ballot once it has been voted, thus limiting the number of individuals able to tamper with it, destroy it, or fail to mail it. As stated above, the legislative purpose of section 19-6 is to safeguard the integrity of the election process. This is an important state interest. Certainly, the restriction in section 19-6 furthers this goal and justifies the restriction. "The general purposes of election laws are to obtain fair and honest elections and to obtain a correct expression of the intent of the voters." Courtney v. County Officers Electoral Board, 314 Ill. App. 3d 870, 872-73, 732 N.E.2d 1193 (2000). We believe the restriction imposed by section 19-6 substantially contributes to the integrity of the election process. This restriction is a reasonable means of eliminating opportunities for election fraud and uncertainty, and the important state interest in the integrity of the election process demands that provisions such as this, that contribute substantially to the integrity of the election process, be enforced by the courts. See also Deganutti, 348 Ill. App. 3d at 520-21 (holding that section 29-20(4) of the Election Code, which provides that an individual who "takes an absentee ballot of another person in violation of Section 19-6 so that an opportunity for fraudulent marking or tampering is created," is guilty of a Class 3 felony, was "rationally related to the legitimate state goal of protecting and preserving the integrity of the election process"; specifically, "[s]section 29-20(4) of the Code, *** protects the integrity of the election process by depriving unauthorized persons of the opportunity to tamper with completed absentee ballots, thereby addressing such issues as coercion, fraud, and secrecy that potentially arise with absentee voting").

With respect to Skubisz's claim that equal protection principles are violated because similarly situated absentee voters, those under section 19-13 of the Election Code, are treated differently, i.e., those voters are allowed to choose any person to mail their absentee ballots, we disagree. Section 19-13 relates to individuals who have been admitted to a hospital not more than five days before an election and allows for personal delivery of an absentee ballot to that person upon application and certification from that individual's attending physician. With respect to return of the absentee ballot, section 19-13 provides:

"Upon receipt of the absentee ballot, the hospitalized voter shall mark the ballot in secret *** [and] such voter shall give the envelope to the precinct voter [any person who is registered to vote in the same precinct as the hospitalized voter] or the relative who shall deliver it to the election authority in sufficient time ***." 10 ILCS 5/19-13 (West 2002).

We first observe that there is nothing in this provision with respect to mailing the absentee ballot. Rather, section 19-13 speaks of delivering the ballot. Given the time frame, it is doubtful whether such absentee ballots could be mailed. In any event, the individuals in section 19-13 are not similarly situated to the general incapacitated voters. Most notably, these individuals would not have previously requested an absentee ballot and only do so because of a sudden and unusual situation, within five days of the election. The concerns with respect to targeting a certain infirm group and exerting influence and manipulation over these hospitalized individuals is not an issue since no one could foresee their situation and the fact they would have to vote by absentee ballot. This is certainly a very narrow class of individuals where the opportunity for fraud in connection with their voting is not as strong as with an incapacitated individual targeted by a candidate months before an election. Accordingly, we find that the trial court properly concluded that section 19-6 of the Election Code did not violate equal protection principles.

In summary, we find that the trial court did not err in denying Skubisz's motion to dismiss on the basis that section 19-6 of the Election Code was invalid or unconstitutional.

CONCLUSION

For the reasons stated, we affirm the judgment of the circuit court of Cook County.

Affirmed.

WOLFSON and GARCIA, JJ., concur.


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