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Zessar v. Helander

June 11, 2007

BRUCE M. ZESSAR 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

FACTS

The facts stated in this court's March 13, 2006 summary judgment opinion are hereby incorporated. On March 13, 2006, this court concluded that the Illinois Election Code provisions regarding the casting of absentee ballots violated absentee voters' due process rights, and that the implementation of a constitutional absentee voting system would be a proper remedy. On July 3, 2006, the Illinois General Assembly passed Public Act 94-1000, revising the Illinois Election Code, to provide prompter notification of rejected absentee ballots, and a chance for an in-person hearing before the election to rehabilitate the ballot.

Specifically, P.A. 94-1000 provides that within two days of receipt of a mailed-in-absentee ballot, an election judge or official shall compare the signatures. If the signatures match, and the absentee voter is otherwise qualified to cast an absentee vote, the vote shall be counted. If the signatures do not match, or there is some other reason for disqualification, the ballot is rejected. Within two days of the rejection, the election authority must notify the absentee voter of the rejection and inform the voter of the reason or reasons the ballot was rejected. The notice must also explain that the voter may appear before the election authority, on or before the 14th day after the election, to show cause for why the ballot should not be rejected. The election authority shall appoint a panel of three election judges to review the contested ballot, application, and certification envelope, as well as any evidence submitted by the absentee voter. No more than two election judges on the reviewing panel shall be of the same political party. The panel's determination is final, not subject to review by administrative or state courts.

After the passage of P.A. 94-1000, Defendants moved to dismiss the case as moot. This court denied the motion on October 10, 2006, indicating that it is unclear whether the new statute would provide a constitutional voting system. Specifically, this court was concerned with (1) the individuals who are absent from the state during the period that covers the in-person absentee voting dates, as well as the dates available for the pre-deprivation hearing before the three election judges--these individuals are denied the opportunity to be heard prior to the final canvass, because he or she would be unable to appear in person; and (2) whether the state was prepared to implement the three-judge panel review system.

On October 26, 2006, this court denied Plaintiff Class' motion for preliminary injunction, unwilling to issue an injunction that presupposes the inadequacy of procedures yet to be developed. The general election was held in November 2006 under the revised election system of P.A. 94-1000. Statistics from the November election were submitted to this court.

On April 30, 2007, Plaintiff Class filed its Submission for Final Judgment. Plaintiff Class claims no further proceedings are needed, and moves the court to enter a final judgment as follows:

a) judgment that the prior version of 10 ILCS 5/19-8 is unconstitutional because it failed to provide due process to the absentee voter;

b) judgment that the newly enacted provision of the Illinois Code, while making improvements, remains unconstitutional by requiring "in person" presentation of proof from absentee voters absent from their precinct well beyond election day;

c) judgment that the election authority shall use all available addresses in its possession (mail, email, and fax) to notify voter of rejection; and

d) judgment that Plaintiff and the Class are "prevailing parties" and award appropriate fees and costs.

ANALYSIS

A. Judgment that the Prior Version of 10 ILCS 5/19-8 is Unconstitutional Because it Failed to Provide due Process to the Absentee Voter

This court has already ruled on the constitutionality of the absentee ballot provisions of the Illinois Election Code before July 30, 2006 in the previous summary judgment opinion. In the March 13, 2006 opinion, this court ruled in favor of the Plaintiff Class, finding that the lack of opportunity for a pre-deprivation hearing before final canvass violated the absentee voter's ...


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