The opinion of the court was delivered by: David H. Coar United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Bruce M. Zessar is a resident of Lake County, Illinois, but works in Chicago's Loop area. In early October 2004, Zessar contacted the Lake County Clerk's office about requesting an absentee ballot because he expected to be absent from Lake County on Election Day that year. Zessar received an absentee ballot application and an absentee ballot by mail. He completed the application and returned it to the Clerk's office by mail. He voted the absentee ballot, signed and dated the certification form on the accompanying envelope on October 4, 2004, and returned it by mail to the Lake County Clerk's Office, well before the November 2, 2004 General Election..
In mid-January 2005, some two and a half months after the November 2004 election, Zessar received a yellow Notice of Challenge postcard by mail from the Lake County Clerk's office. The Notice of Challenge card, which had been prepared on the night of the election by Lake County election judges, informed Zessar that election officials in Moraine Precinct number 215 (Lake County) had determined that Zessar's signature on his absentee ballot did not match the signature on file on his voter registration card and that his ballot had been rejected. All parties now agree that this determination was erroneous. Zessar's vote was not cast and did not count in the election results. For the November 2004 election, Lake County reported 538 rejected ballots from a total of 458 precincts.
The final election results for Lake County had been posted on the County Clerk's website on November 17, 2004, approximately two weeks after Election Day. The results were labeled "unofficial," although the Lake County operations manager state that they were final. Under Illinois law, county offices were required to complete the abstract of votes and official canvass for county offices by November 23, 2004. The Illinois State Board of Elections must complete the official canvass and abstract of votes for state and judicial offices by 31 days after the election.
The Illinois Election Code and related regulations require that a rejected absentee voter must receive notice of the ballot rejection but otherwise give no guidance about the time frame in which such notice must be given. State law makes no provision for a rejected absentee voter to challenge the ballot rejection or to have any form of hearing prior to the rejection of the ballot or completion of the official canvass.
On July 3, 2006, the Governor signed into law P.A. 94-1000 ("the Act"), which amended Article 19 and 20 of the Election Code, 10 ILCS 5/19-8(g) and (g-5) and 10 ILCS 5/20-8(g) and (g-5). The Act requires that, for in-person absentee ballots, the clerks at the locations where the absentee voting occurs must verify the absentee voter's signature, reasonably ascertain the identification of the voter, verify the voter's registration and precinct, and determine the proper ballot style prior to issuing the absentee ballot. These in-person absentee ballots are processed and tabulated in the election authority's central location at the conclusion of election day.
The Act also provides that, for mailed-in absentee ballots, rejection decisions must be made within two days of receipt and notification of the rejection must be sent to the absentee voter within two days of the decision, and in all cases, prior to the end of the 14-day period for counting provisional votes.
An absentee ballot may be rejected for several statutory reasons, including (1) non-matching signature, (2) an opened and resealed absentee ballot envelop, (3) a prior early or grace period ballot from the same individual, (4) an in-person voted ballot on election day from the same person, and (5) voter was not duly registered in the precinct.
The act further provides that voters with rejected absentee ballots must be given an opportunity to challenge the rejection decision before a panel of three election judges before the closing of the period for counting provisional ballots. This entitles the voter to a pre-deprivation hearing before the 14th day after the election. The provisions of the Act extend to military and overseas citizens.
On April 1, 2005, Zessar brought a class action complaint against Willard Helander, the Lake County Clerk, the Lake County Board of Elections, Lake County Election Judges, the Illinois State Board of Elections and the members thereon. Zessar claims that the lack of notice and an opportunity to rehabilitate his absentee ballot before the official election canvass date violated his constitutional right to due process under the Fourteenth Amendment to the United States Constitution. As relief, Zessar asks this Court to declare unconstitutional certain provisions of the Illinois Election Code which relate to absentee voting, to order the State Board of Elections to require pre-deprivation notice and hearing to absentee voters whose ballots are challenged, to award reasonable attorney's fees and costs, and ...