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
(Nunc pro tunc December 28, 2004)
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. Skubisz also contends that the trial court erred in: (1) invalidating nine absentee votes because the absentee ballot certification failed to disclose that those voters received assistance in voting; (2) invalidating certain absentee votes because the voters failed to state a reason for their physical incapacitation on their absentee ballot application form; (3) refusing to admit three misdelivered absentee ballots; and (4) finding that Skubisz's campaign engaged in fraudulent conduct and in deducting, in full, 38 votes from his vote total. For the reasons set forth below, we affirm.
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.
On July 8, Qualkinbush filed a motion for partial summary judgment with respect to 51 votes on the basis that the voters failed to provide a sufficient reason or no reason at all for their physical incapacitation on their applications contrary to the mandatory provision of section 19-3 of the Election Code. *fn2 This motion was granted in part and denied in part by the court on July 25. After reviewing each voter separately, the trial court declared 18 votes invalid because the voters failed to provide any reason at all and two additional votes invalid for reasons irrelevant here.
Qualkinbush also filed a motion for partial summary judgment with respect to 18 voters based on the fact that these individuals, although they had received assistance in voting, failed to disclose that assistance on their certification as required by section 19-5. On July 30, Skubisz filed a response to this motion. The same day, the trial court heard arguments on this motion, and granted it in part and denied it in part.
During the course of the bench trial, which began on August 4, Qualkinbush filed two additional motions for partial summary judgment. First, Qualkinbush moved for partial summary judgment with respect to voters who received assistance, which was not disclosed, and with respect to improper delivery/return of ballots. The affidavits of 13 voters were attached, identifying the various assistance received from Kaszak, including filling out applications in part or whole, mailing applications, receiving assistance in voting, including punching ballots, and mailing of the ballots. Thereafter, the trial court granted the motion with respect to improper delivery in connection with eight voters and granted the motion with respect to improper assistance and delivery in connection with four voters. The trial court also granted the motion for summary judgment with respect to another voter on the basis of receiving assistance that was not disclosed (August 13 order).
Secondly, Qualkinbush filed another motion for partial summary judgment, relating to improper delivery of three ballots. Attached to this were the affidavits of the three voters. After hearing testimony from Kaszak in connection with the assistance he rendered to these three voters, the trial court granted the motion.
At the bench trial, Skubisz was called as an adverse witness by Qualkinbush. *fn3 Skubisz admitted that his campaign undertook a concerted effort to procure absentee votes and he believed workers provided absentee ballot applications to "scores" of voters. Skubisz denied, however, being aware that any assistance was given to voters from his workers, including filling out applications in whole or in part. Skubisz further denied knowing what steps were taken after someone requested an absentee ballot application, but stated it was his secretary's or campaign coordinator's duty to follow up and it was one of Kaszak's duties to provide absentee ballot applications to voters.
Kaszak confirmed that he procured absentee votes for Skubisz, beginning in 1993, the first time Skubisz ran for mayor. Kaszak also did so in 2001 and 2003, when Skubisz again ran for mayor. Kaszak admitted taking absentee ballot applications to voters, helping fill them out, placing applications in envelopes, providing stamps to voters, and mailing applications. According to Kaszak, all of this was done at the direction of the voters. Kaszak then left his telephone number on a "receipt" with the voters. When a voter called, following receipt of his or her ballot, requesting assistance, Kaszak returned to the voter's home. According to Kaszak, most of the voters were confused because they were elderly and the ballots contained too much "mumbo jumbo" for these "old timers." Kaszak admitted instructing voters on how to vote, punching ballots for voters, placing ballots in envelopes, filling out certifications, and mailing ballots.
According to Kim Cornell, Skubisz's campaign secretary, she received numerous telephone calls from individuals requesting absentee ballots. She wrote their names and telephone numbers on a sticky note and left or gave the notes to those campaign workers, primarily Kaszak, who dealt with absentee ballots. According to Cornell, she prepared approximately 100 such sticky notes. Cornell further testified that she received calls from individuals after they had received their absentee ballot, asking what they should do. Cornell again took the individual's information and gave it to Kaszak or someone else to follow up on.
Gary Rycyzyn, stated that he was the director of elections for the Cook County Clerk's office. He testified in connection with the chain of custody for ballots from the precincts to the warehouse, the absentee ballot process, and absentee ballot applications.
On August 25, during a break in the bench trial, Skubisz filed a motion to count three misdelivered absentee ballots. At a hearing on this motion, it was determined that these votes had turned up the previous Thursday in a precinct not within Calumet City. Specifically, the ballots had been found in precinct one, Burham, but belonged to precinct three, Calumet City. The court indicated that witnesses would need to be called with respect to these ballots to establish a chain of custody. In this regard, Skubisz offered the testimony of Jessica Belmares, the supervisor of the Cook County Clerk's office warehouse, and Ed Bieganik, an election judge for precinct three. According to Belmares, the envelope in which the ballots had been recently found, while cleaning out the warehouse, stated "precinct one," but the votes were for precinct three. Belmares did not know what precinct the ballots had been delivered to and only knew that they had been found in an envelope for precinct one. She also did not know how the ballots got from precinct three to precinct one. Belmares further testified that a note from the election judges accompanied the envelope, which stated: "Found after final result tape was run and the PBV was turned off. Please process these absentee ballots." Belmares stated that she had never seen a note like this before.
Bieganik testified that after the polls had closed on election night and the votes tabulated, the judges found an envelope that appeared to contain absentee ballots. According to Bieganik, it was the last thing they found that night and, although the envelope was not opened, he believed there were three absentee ballots in it. Bieganik stated that the judges were at a loss as to what to do with the envelope, so they wrote a note, acknowledging receipt of it. Bieganik believed that the envelope was placed with the regular ballots and was taken from the polling place to the receiving station in the transfer case.
On cross-examination, Bieganik testified that Yolanda Wilheim had delivered the envelope to the precinct. When shown the envelope that that been recently found, containing the three ballots, Bieganik stated that it was similar, but was not the same envelope delivered to precinct three because the envelope he was shown at trial had precinct one written on it
Trial resumed and Qualkinbush rested. Six voters then testified on behalf of Skubisz, stating that they had contacted Skubisz's office for assistance in the absentee voting process and testifying to the assistance they had received. The assistance they detailed confirmed that testified to by Kaszak.
Skubisz then testified on his own behalf. According to Skubisz, absentee votes were important to him because he was running as an independent and needed to do everything possible to win. As such, Skubisz tried to generate as many people as he could to vote by absentee ballot. However, he denied being involved in the every day mechanics of the absentee ballot program. Skubisz knew Kaszak had delivered absentee ballot applications, but did not know how many and never asked. Skubisz admitted that he had seen sticky notes with respect to absentee ballot applications at the office, but denied seeing any notes in connection with ballots themselves. Skubisz then rested.
At a subsequent hearing on Skubisz's motion to count the three misdelivered ballots, Skubisz argued that the only logical explanation was that the envelope containing the ballots had been placed in the wrong supply carrier by a deputy clerk. Qualkinbush argued that there had been no evidence or testimony as to how the ballots got from the Calumet City precinct to the Burnham precinct and, therefore, no chain of custody had been established. The trial court noted that how the three ballots for precinct three got into precinct one "remain[ed] a mystery." The court found that someone had made an error and this error could have been an error in security. Accordingly, the trial court concluded that the ballots had not been sufficiently preserved and would not be counted.
On September 2, the trial court entered its memorandum decision and final judgment order certifying the April 1, 2003, election results. The court first addressed the credibility of Kaszak's testimony and found that it was not an asset to Skubisz. The court also noted that, although Skubisz had attempted to distance himself from Kaszak, through not only his own testimony but other witnesses, this attempt lacked sufficient credibility.
The court then dealt with 39 votes (on a list attached to the order) that it had found were voted illegally for reasons previously stated by the court with respect to the various motions for partial summary judgment ruled on prior to trial. *fn4 Although the court acknowledged that it did not know who each voter had voted for, it did know that Kaszak assisted each of these voters. In connection with this assistance, the court was not of the belief that the voters had always asked for assistance as Kaszak had testified. Rather, the court noted that, after Kaszak filled out the absentee ballot application, he always left a "receipt" with his telephone number. The court found that this was done to encourage the voter to call him once they received their absentee ballot, to encourage the voter to vote for Skubisz, and so Kaszak could assure that he provided assistance to the voters during the voting process itself.
The court then rendered certain findings with respect to Kaszak's assistance, specifically finding that the evidence demonstrated that, even when Kaszak only provided instruction to a voter, he could nonetheless watch the voter and see for whom he or she had voted. According to the court, Kaszak should not have placed himself in such a position. Specifically, the court found that "[t]he intimidation factor [the voter's knowledge that Kaszak was from the Skubisz campaign] would undoubtedly place undue pressure on the voter." Similarly, with respect to Kaszak's conduct in actually guiding a voter or voting for the voter, the court found that Kaszak's "oversight and presence lead to possibilities for intimidation" and concluded that Kaszak "guided these voters to his candidate either overtly or by his presence."
The court next found that the fact Kaszak filled out the certification for many voters was of significant importance because Kaszak skipped filling out the assistance portion in an overwhelming majority of the ballots upon which he had assisted. According to the court, "[t]his was no mistake." Kaszak's action was deliberate and intentional and "[i]t was designed to keep the extent of his assistance unknown and less likely to be detected." The court believed "that [Kaszak] made every effort to take the ballot from the voter for delivery and [found] this created the opportunity for KASZAK to taint the ballots."
The court then found that the testimony of the absentee voters "provided strong evidence of improper behavior by KASZAK and the SKUBISZ campaign. The confused testimony by these witnesses demonstrated to the court how easily someone of influence could manipulate their votes." The court concluded that Skubisz's conduct and his agent's was an "intentional, deliberate, and persistent pursuit of the absentee vote of handicapped voters," "this pursuit was fraudulent and designed to win an election at all costs," that "[t]he campaign targeted the sick, the infirm and the confused," and it was "obvious to the court" that Kaszak "made every effort to examine each and every vote." The court further concluded that Skubisz was aware of what Kaszak was doing because the practice of picking up absentee ballots was so widespread and Skubisz himself testified that he knew of the absentee voting efforts. Conversely, the court found that Qualkinbush and her campaign engaged in no wrongdoing during the campaign.
The court then found that Kaszak assisted at least 39 absentee voters and delivered the ballots. In this regard, the court found that Kaszak "not only had the opportunity to tamper with the ballots while assisting the voter in voting, but also when he assumed custody of the ballot in at least thirty-five separate instances. It is evident that delivery of these ballots is in violation of section 19-6, but also that the opportunity for tampering existed ***. Being an unauthorized person to deliver absentee ballots under section 19-6[,] the presumption is that the ballots have been tampered with." Accordingly, the court held "the 38 votes where illegal delivery by KASZAK was proven or stipulated to and the votes illegally delivered by SKUBISZ shall be subtracted from the SKUBISZ vote total." As to the remaining absentee ballots, the court concluded that "[t]he illegal scheme *** was completely one-sided" and, "[f]or the sake of equity and fairness, the court will apportion the ballots between all four candidates among the pool of absentee ballots by precinct."
Ultimately, the trial court concluded:
"In summary, the Court finds that the SKUBISZ
absentee voter campaign followed deliberate,
intentional and aggressive practices to assure the
votes of handicapped voters. The ballots cast by
these voters were poisoned by KASZAK to a degree
that the fair and equitable remedy is to subtract
each and every one of the votes from the SKUBISZ
vote total. The Court finds that it would be
inequitable, an injustice, to use Respondent's
method of deducting votes."
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.
Initially, both parties challenge the other parties' brief on appeal. Qualkinbush contends that Skubisz misstated facts in his statement of facts, gave an incomplete statement of facts, and ignores the fact that the trial court found many of the facts he relies upon incredible. Skubisz, in his reply brief, asks us to strike Qualkinbush's brief and/or portions thereof because she included an abstract of testimony in her appendix without leave of this court to do so, her statement of facts contains misstatements, arguments, and irrelevant materials that are unsupported by the record, and, in her argument section, she fails to cite to the record, relies on the trial court's opinion as evidence, and instead of making her own arguments, uses the language from the trial court's decision as her arguments.
With respect to Qualkinbush's abstract, Supreme Court Rule 342(b) provides that an abstract of the record shall not be filed unless it is ordered by the court. Since this court did not order an abstract, this attachment is improper and, therefore, we will disregard it. See Swanson v. Board of Police Commissioners of the Village of Lake in the Hills, 197 Ill. App. 3d 592, 597, 555 N.E.2d 35 (1990).
With respect to the parties' statement of facts, without specifically detailing any violations, both parties' statement of facts are deficient and fail to comply with Supreme Court Rule 341(e)(6). 188 Ill. 2d R. 341(e)(6). Neither states the facts fairly nor accurately without comment. Accordingly, we will simply disregard those portions that we deem fail to comport with supreme court ...