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Zessar v. Helander

March 7, 2006

BRUCE M. ZESSAR, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
WILLARD R. HELANDER, LAKE COUNTY CLERK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Before this Court is Plaintiff's Motion for Class Certification of both a Plaintiff Class and a Defendant Class. Plaintiff defines the proposed plaintiff class, somewhat awkwardly, as "all Illinois registered voters whose submitted absentee ballot was rejected without providing them notice and opportunity to correct prior to the official canvass." Plaintiff also seeks to certify a proposed defendant class, defined as "all Illinois county election officials operating under the authority of the Illinois Election Code."

I. PLAINTIFF CLASS

Under Rule 23 of the Federal Rules of Civil Procedure, in order to proceed as a plaintiff class, a plaintiff must demonstrate that 1) the number of individuals in the proposed class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact that are common to the class; 3) the claims or defenses of the named parties are typical of the claims or defenses of the class; and 4) the representative party will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). In addition, Plaintiff contends that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2).

A. Rule 23(a) Factors

1. Numerosity

The parties agree that the number of Illinois absentee voters whose ballots were rejected in the November 2004 election was approximately 1,200.*fn1 Defendants seek to parse that group more finely, asserting that it contains several categories: (1) all rejected absentee ballots; (2) absentee ballots correctly rejected because "the signature did not match"; and (3) absentee ballots incorrectly rejected because "the signature did not match." The Illinois Board of Elections argues that Zessar's claim fits within the last of these categories, and that it is unknown how many other absentee ballots were rejected on this basis. But Zessar does not seek to certify a class of plaintiffs whose circumstances exactly match his. Instead, his claim seeks procedural due process for all absentee voters whose ballot was rejected for any reason and who did not have notice of such rejection or an opportunity to cure any alleged defect prior to the official canvass date. This class necessarily encompasses the broadest of the categories ISBE has identified. Federal courts have certified classes of as few as 25 members. Harris v. Gen. Dev. Corp., 127 F.R.D. 655, 660 (N.D. Ill. 1989). In this instance, it is undisputed that joinder of all plaintiffs would be impracticable, at the least. Danis v. USN Commc'ns, Inc., 189 F.R.D. 391, 399 (N.D. Ill. 1999).

2. Commonality

Under Rule 23(a)(2), the proposed class must have common, but not necessarily identical, questions of law or fact. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). Plaintiff asserts that there is an overriding question of law applicable to every member of the class, namely whether the Illinois election authorities are under an obligation to provide timely notice of the absentee ballot's rejection and an opportunity to the absentee voter to rehabilitate or defend his or her ballot before the final vote canvass is complete. In addition, there is a "common nucleus of operative fact" relating to the entire proposed class because none of its members received notice or had an opportunity to rehabilitate the rejection of their absentee ballots. ISBE argues that this is simply a "general commonality" which fades in the face of the factual and legal differences between rejected absentee voters. For example, an absentee voter who died after mailing the ballot but before the election (and whose death was known to the election judges) poses different issues different than Zessar. Defendant Helander argues that Zessar's situation differs from that of other absentee voters because he was absent from Lake County on Election Day and the days immediately thereafter only during working and commuting hours. Otherwise, he was present in Lake County. Of the 26,578 absentee ballots mailed in Lake County for the November 2004 General Election, Helander asserts that approximately 7,696 were connected with special programs for individuals who are out of the state and the country on Election Day, including individuals serving in the Armed Forces, citizens living abroad, students away at school, and "snowbirds," or people on extended visits out of state. Again, however, Defendants overstate superficial differences between potential members of the class, without disputing Plaintiff's essential assertion of the unifying common question of law. Complete commonality is not required; some factual differences are inevitable and may be sufficiently significant to preclude some individuals from joining the class. Common nuclei of fact typically exist where the defendants engaged in "standardized conduct towards members of the proposed class," such as rejecting their absentee ballots without providing them both notice and an opportunity to rehabilitate the ballot before the canvass date. Keele,149 F.3d at 594. Here, sufficient commonality exists among proposed class members to satisfy Rule 23(a)(2).

3. Typicality

The typicality analysis is closely related to the question of commonality. A claim is "typical" if it arises "from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory." De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (citations and internal quotation omitted). Thus, a plaintiff's claim must have the "same essential characteristics as the claims of the class at large." Id. Plaintiff contends that he alleges the same deprivation of due process as every other member of the class, and thus easily meets the typicality requirement. Defendants disagree on the ground that Plaintiff's situation is factually distinguishable from that of other potential class members. Again, however, Defendants focus on superficial distinctions without disputing Plaintiff's essential claim. By rejecting absentee ballots without providing the absentee voters with notice and an opportunity to challenge the rejection by rehabilitating their ballots, Defendants engaged in the same course of conduct toward Zessar and all members of the class. Zessar is now suing under 42 U.S.C. § 1983 for vindication of his constitutional right to due process. Zessar's claim meets the typicality requirement. Keele, 149 F.3d at 595.

4. Adequacy of Representation

Rule 23(a)(4) permits class certification only if "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). This determination rests on both the adequacy of the named plaintiff and on the adequacy of the plaintiff's named counsel. Plaintiff describes himself as the "classically respected class representative," whose interests "are exactly the same as those of the rest of the Class." (Pl.'s Br., at 10). In addition, Plaintiff asserts that his counsel, Clinton Krislov, and the firm of Krislov & Associates, Ltd., has "an extensive history prosecuting class action litigation," with the necessary supporting legal and financial resources.*fn2 Defendants object for the same reasons they object to the commonality and typicality factors. The only argument that might defeat adequacy of representation is that after Zessar allegedly called the Lake County election authority to request an absentee ballot, he received both an absentee ballot application and an absentee ballot. According to Defendants, Zessar completed both the application and the ballot and returned them at the same time, prior to Election Day. There is, however, no indication from the record that this was sufficient to disqualify Zessar as an absentee voter. Further, the reason given for rejecting his absentee ballot was that the "signatures do not match," not that he was not an approved absentee ...


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