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[W] Qualkinbush v. Skubisz

December 28, 2004; Opinion Withdrawn and new opinion filed March 31, 2005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


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