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Zessar v. Keith

August 6, 2008


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 1917-David H. Coar, Judge.

The opinion of the court was delivered by: Manion, Circuit Judge


Before FLAUM, MANION, and TINDER, Circuit Judges.

After his absentee ballot was rejected in the 2004 general election, Bruce Zessar filed suit alleging that his due process rights were violated because election officials failed to provide him with notice and a hearing prior to rejecting his ballot. The district court granted in part his motion for summary judgment, but before it entered final judgment, the Illinois General Assembly amended the portions of the state's Election Code addressing absentee voting. Notwithstanding this amendment, the district court entered final judgment in favor of Zessar declaring unconstitutional the Code as it stood prior to amendment. The district court also deemed Zessar a prevailing party entitled to attorney's fees under 42 U.S.C. § 1988. The defendants appeal. Because we conclude that the amendment of the Election Code mooted Zessar's challenge to the pre-amendment Code, and that the district court's conclusion that Zessar was a prevailing party was in error, we vacate those portions of the judgment and remand for partial dismissal.


Bruce Zessar resides and is registered to vote in Lake County, Illinois. Zessar submitted an absentee ballot intending to vote absentee in the general election held on November 2, 2004. His ballot was rejected because of a belief that the signatures on his absentee ballot application and ballot envelope did not match. Election officials concede that Zessar's vote was rejected in error, and did not count in the election. Making matters worse, Zessar was not notified that his ballot had been rejected until he received a postcard explaining the basis for the rejection in mid-January 2005. The parties agree that during the period between election day and the canvass, which was held on November 17, 2004, and rendered the election results final, Zessar had no opportunity to challenge the rejection or otherwise rehabilitate his ballot.

The circumstances surrounding the rejection of Zessar's ballot arose under Article Nineteen of the Illinois Election Code, which covers absentee voting, as it stood in 2004. 10 ILCS 5/19-1 to 5/19-15 (2004). Voters began the process of voting absentee by filing an application with local election authorities for an absentee ballot. 10 ILCS 5/19-2 (2004). If the applicant was lawfully entitled to vote absentee in the requested location, election officials mailed the applicant a ballot. 10 ILCS 5/19-4 (2004). A voter who received an absentee ballot would fill it out, place it in a certified envelope, and either mail it to the clerk's office or deliver it in person. The clerk would then see that all such ballots were delivered to the appropriate precincts. 10 ILCS 5/19-8 (2004). Absentee ballots were not counted or otherwise verified before the evening of election day. On election day, however, the absentee ballot count began no later than 8:00 p.m. Id. Once the polls closed, election judges in each precinct cast the absentee ballots by opening the carrier envelopes containing the ballots, announcing each voter's name, and comparing the signature on the ballot envelope with that on the application. 10 ILCS 5/19-9 (2004). A ballot would be rejected in four circumstances: (1) if the signatures on the envelope and application did not match; (2) if the voter was not registered in the precinct; (3) if the envelope was open, or had been opened and resealed; or (4) if the voter voted in person during the day. Id. While the Election Code in effect in 2004 required notification to absentee voters whose ballots were rejected, 10 ILCS 5/19-10 (2004), there was no requirement that the voters be notified in time to challenge the rejection before the canvass. In other words, sending Zessar notice in January 2005 that his ballot was rejected at the beginning of November 2004 violated no portion of the Illinois Election Code.

Zessar filed a class action complaint on behalf of himself and all other similarly situated voters against Willard R. Helander, Lake County Clerk, the members of the Lake County Board ("Helander," collectively), and the members of the Illinois State Board of Elections ("State Board"). Zessar alleged that the Election Code's failure to provide for notice and a hearing before the rejection of his absentee ballot violated his due process rights as protected by the Fourteenth Amendment to the United States Constitution.*fn1 On March 13, 2006, the district court entered an order denying the defendants' motion for summary judgment and granting, in part, Zessar's motion for summary judgment. The court determined that the Election Code's failure to provide for notice and a hearing violated the Due Process Clause, and that Zessar was entitled to prospective injunctive relief. The court also held that the economic damages Zessar sought were not an appropriate remedy, and that any equitable relief beyond implementing a lawful absentee voting system was not warranted. The district court did not enter judgment on its ruling, however, instead directing the parties to file proposed procedures for providing notice and a pre-deprivation hearing to voters whose absentee ballots were rejected.

Three days later, Zessar filed an emergency motion for an injunction asking the district court to enjoin enforcement of the unconstitutional portions of the Election Code in the Illinois primary elections which were going to take place on March 21, 2006. For reasons not appearing in the record before us, that motion was denied on March 20, 2006. The district court also denied motions by the State Board and Helander to file interlocutory appeals of the ruling on the summary judgment motion.

While the parties' proposed procedures for handling absentee balloting were under consideration by the district court, the Illinois General Assembly passed Public Act 94-1000 ("Act") amending provisions of the Election Code such as the procedure for selecting election judges, 10 ILCS 5/13-1 (2006), handling challenges at polling places, 10 ILCS 5/18-5 (2006), and counting provisional ballots, 10 ILCS 5/18A-15 (2006). See Ill. Public Act 94-1000, § 5 (2006). More significantly for this case, the Act also amended the procedures for absentee voting. The amendments, which took effect on July 3, 2006, provided that if a mail-in absentee ballot was rejected for one of the reasons stated above, the election authority had to notify the voter of the rejection "within 2 days after the rejection but in all cases before the close of the period of counting provisional ballots." 10 ILCS 5/19-8(g-5) (2006). This notice had to state the reason for the rejection, and notify the voter that he could appear before the election authority on or before the fourteenth day after the election to show cause why the ballot should not be rejected. Id. Review of the voter's challenge would be undertaken by a panel of three judges appointed for that purpose. Id. The judges could review the contested ballots, envelopes, applications, and any other evidence submitted by the voter. Id. The final determination on a ballot's validity was not reviewable, and ballots determined to be valid were added to the vote tally for their precincts. Id.

The defendants moved to dismiss Zessar's suit as moot based upon these amendments. Zessar opposed dismissal, and argued that the amendments did not moot the suit because they still did not provide sufficient due process to absentee voters. The district court denied the motion on October 10, 2006. In denying the motion, it expressed concern regarding absentee voters who would be absent from their precincts for an extended period of time, due to overseas deployment or otherwise, because they would be unable to appear in person before the three-judge panel. The court was also concerned that local election officials might not be prepared to implement the three-judge panels. On October 20, 2006, in anticipation of the upcoming election and echoing the concerns expressed by the district court, Zessar moved for an emergency injunction prohibiting the defendants from rejecting any absentee ballots under the Election Code as it then stood. This motion was denied by the district court on October 26, 2006.

On June 11, 2007, the district court entered a final judgment containing four conclusions. First, the district court stated that "[t]he prior version of 10 ILCS 5/19-8 is unconstitutional because it failed to provide due process to the absentee voter." Second, the court concluded that Zessar qualified as a prevailing party based on its earlier partial grant of Zessar's motion for summary judgment and the Illinois General Assembly's subsequent amendment of the Election Code. Next, the court cited statistics from the 2006 election showing the large number of challenges brought by absentee voters whose ballots were rejected and the high rate of success they had in challenging rejection. Even though the court still entertained reservations about the sufficiency of the protections afforded to voters absent from their precincts for extended periods, the statistics did not reveal that any such voter attempted to challenge a ballot rejection. Accordingly, the court expressly declined to enter judgment that the post-amendment Election Code was unconstitutional. Finally, the court declined to enter judgment that election officials were required to use every available address (i.e., mail, email, and fax) to notify voters that their absentee ballot had been rejected, leaving to local election officials the determination of reasonable notification. The defendants filed motions for reconsideration of the court's determination that Zessar was a prevailing party, but the district court denied those motions.

Helander and the State Board filed separate appeals which have been consolidated for our review. Helander challenges the district court's substantive determination that the pre-amendment Election Code violated the Due Process Clause. The State Board argues that Zessar's challenge to the Election Code as it stood prior to its amendment in July 2006 was mooted by the Code's amendment. This mootness, the State Board argues, left the district court without jurisdiction to enter final judgment on the constitutionality of the pre-amendment provisions. Additionally, the State Board asserts that Zessar is not a prevailing party under 42 U.S.C. ยง 1988, and that the district court erred ...

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