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Oliver Gordon Schwallenstecker v. Gary R. Rull

October 2, 2012

OLIVER GORDON SCHWALLENSTECKER,
PLAINTIFF-APPELLEE,
v.
GARY R. RULL,
DEFENDANT-APPELLANT,
AND
PETER DUNCAN, AS COUNTY CLERK OF MACOUPIN COUNTY,
DEFENDANT.



Appeal from Circuit Court of Macoupin County No. 12MR11 Honorable John E. Childress, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

JUSTICE COOK delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Appleton concurred in the judgment and opinion.

OPINION

¶ 1 This appeal concerns absentee voting in the March 20, 2012, general primary election for Democratic nominees to the Macoupin County board. On August 3, 2012, the trial court invalidated 19 absentee ballots in that election and entered summary judgment for plaintiff, Oliver Gordon Schwallenstecker, declaring him-instead of defendant, Gary R. Rull-one of two Democratic nominees to the county board.

¶ 2 Rull appeals, arguing the trial court erred in finding the ballots invalid. We disagree and affirm.

¶ 3 I. BACKGROUND

¶ 4 Three Democrats from County Board District 2 ran in the March 20, 2012, primary: Schwallenstecker, Rull, and Francis Wieseman. Each voter was allowed to vote for two candidates. The two candidates with the most votes would receive nominations and appear on the November general-election ballot.

¶ 5 Schwallenstecker's election contest concerned absentee voting by residents of the South Lawn Sheltered Care nursing home in Bunker Hill. (Rull owns South Lawn Sheltered Care but is not alleged to have influenced the voting there.) Defendant Pete Duncan, Macoupin County clerk, worked with the nursing home's activity director to make applications for absentee ballots and absentee ballots available to South Lawn Sheltered Care residents who were registered Democratic voters. No resident had applied for an absentee ballot, but the procedure was consistent with past practices of the nursing home and the county clerk's office. The activity director confirmed the current residency of Macoupin County voters whose registration listed South Lawn Sheltered Care as their address. The county clerk's office arranged for election judges to provide applications for absentee ballots to these voters in person at the South Lawn Sheltered Care facility on March 19, 2012.

¶ 6 On March 19, 2012, election judges acting on directions from the county clerk's office oversaw and administered absentee voting at South Lawn Sheltered Care. Twenty of the nursing home's residents filled out applications for absentee ballots; thirteen of them failed to identify their party affiliation in their applications. The voters returned completed applications to the election judges. The election judges then provided them with absentee ballots. The voters returned completed ballots to the election judges, who delivered them, along with the applications, to the county clerk's office. One of the residents' ballots was rejected for unidentified reasons and not included in the election results; the other 19 were counted.

¶ 7 According to the official results of the primary, Wieseman received 345 votes, Rull 298, and Schwallenstecker 289. From the 21 absentee, early, and grace-period voters whose votes were counted in the precinct where South Lawn Sheltered Care is located (19 of whom were residents of the nursing home), Rull received 20 votes and Schwallenstecker received 5.

¶ 8 On April 16, 2012, Schwallenstecker filed his amended petition contesting the election. Schwallenstecker alleged Election Code (10 ILCS 5/1-1 to 30-3 (West 2010)) violations relating to absentee voting at the South Lawn Sheltered Care nursing home. Specifically, in relevant part, Schwallenstecker complained that, due to violations of sections 19-3 (requiring, among other things, identification of party affiliation on applications for absentee ballots) and 19-6 (prescribing procedures for returning completed absentee ballots to the county clerk's office) of the Election Code (10 ILCS 5/19-3, 19-6 (West 2010)), the 19 absentee ballots of South Lawn Sheltered Care residents were invalid.

¶ 9 On June 7, 2012, the trial court denied Rull's and Duncan's motions to dismiss. On July 20, 2012, Schwallenstecker filed his motion for summary judgment. That same day, the parties entered into an agreed evidentiary stipulation of facts. On July 23, 2012, Rull filed his motion for summary judgment.

¶ 10 On August 3, 2012, the trial court entered a written order granting summary judgment in favor of Schwallenstecker. The court found violations of mandatory provisions of sections 19-3 and 19-6 that invalidated the absentee votes of the South Lawn Sheltered Care residents. Discounting those votes, the court found that Schwallenstecker beat Rull for the second Democratic nomination to the county board, such that Schwallenstecker and Wieseman, not Rull, should appear on the general-election ballot.

ΒΆ 11 On August 15, 2012, Rull filed his notice of appeal. On August 22, 2012, Rull moved in this court for an accelerated appeal according to a stipulated briefing schedule. On ...


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