Find Legal Information

SIXTH DIVISION
November 1, 2002

JUSTICE GALLAGHER delivered the opinion of the court:

This case is a contest of the March 19, 2002, Democratic primary election for the officeof representative in the Illinois General Assembly, 78th representative district.On June 24,2002, the trial court declared the primary election void and ordered a new election to be held onSeptember 10, 2002. The trial court's decision was based, in part, upon the United StatesSupreme Court decision in Bush v. Gore, 531 U.S. 98, 148 L. Ed. 2d 388, 121 S. Ct. 525 (2000). We allowed an expedited appeal pursuant to Supreme Court Rule 311 (155 Ill. 2d R. 311). OnAugust 16, 2002, we entered an order with mandate to issue instanter, stating that an opinionwould follow. See, e.g., Pochie v. Cook County Officers Electoral Board, 289 Ill. App. 3d 585,587, 682 N.E.2d 258, 259 (1997). In that order, we reversed the judgment of the circuit courtordering a new election and remanded the matter for further proceedings. As we shall explain,this opinion, which is substantively the same as this court's previous order, now supercedes andreplaces our order dated August 16, 2002.

BACKGROUND

Four candidates ran in the Democratic primary election for the office of representative inthe Illinois General Assembly, 78th representative district. The 78th representative districtincludes part of the City of Chicago (the City) and part of Cook County (the County) outside theCity of Chicago. The 78th district has 119 precincts. The division of precincts between theCounty and the City is 71 precincts in Oak Park, Proviso and River Forest Townships and 48precincts in the 29th, 36th and 37th wards of the City of Chicago. The candidates in the electionwere respondent-appellant Dorothy Reid, petitioner-appellee Deborah L. Graham, Jesus "Jesse"Martinez, and Ted E. Leverenz. The canvass of election results showed there was a tie betweenReid and Graham, each having received 6,934 votes. Candidate Ted Leverenz received 2,409votes, and candidate Jesus Martinez received 2,231 votes. As required by statute (10 ILCS 5/22-4 (West 1998)), the State Board of Elections broke the tie by lot, which fell in favor of Reid.

On April 17, 2002, Graham filed a petition for election contest, pursuant to section 7-63of the Election Code (10 ILCS 5/7-63 (West 1998)), which provides that any candidate whosename appears upon the primary ballot of any political party may contest the election of anopposing candidate nominated for the same office by filing a written petition with the clerk of thecircuit court within 10 days after the completion of the canvass of the final returns by thecanvassing board. 10 ILCS 5/7-63 (West 1998). In her petition, Graham alleged various errors incounting the ballots and requested the court to recount the ballots and declare Graham thewinner. Graham later filed a first amended petition for election contest and named asrespondents Reid, the Chicago Board of Election Commissioners, the Cook County clerk, theCook County canvassing board, and the State Board of Elections. Reid then filed a counterclaim,within five days as required by section 7-63 (10 ILCS 5/7-63) (West 1998)) in which she allegedthat Reid had in fact won the election, but that there were other errors in the ballot countingwhich would actually increase her margin of victory.

On April 30, 2002, the circuit court entered an agreed order providing that the electionauthorities would conduct the recount and establish how the recount would be conducted. Theorder also provided that the parties were excused from filing formal answers to each other'spleadings, that the parties were authorized to liberally amend their complaint or counterclaim asnew facts were discovered in the recount, and that they would be deemed to deny each other'sallegations.

On May 29, 2002, the Chicago Board of Election Commissioners and the Cook Countyclerk filed the precinct-by-precinct results of the court-ordered recount. One precinct, the 24thprecinct of the 37th ward in Chicago, did not report results because the ballots had not beenlocated. On the same day, an agreed order was entered allowing the parties to file amendedpleadings. Graham was granted until May 30, 2002, to file pleadings; Reid was allowed time tofile a response or counterclaim until June 6, 2002.

On May 30, 2002, Graham filed a second amended verified complaint for election contestin which she restated the basic allegations and prayers for relief contained in her previouspetitions. In addition, citing Bush v. Gore, 531 U.S. 98, 148 L. Ed. 2d 388, 121 S. Ct. 525(2000), Graham claimed that she and other voters were denied their constitutional right to votebased upon irregularities discovered during the recount. These irregularities included missingballots from an entire precinct, namely, the 24th precinct of the 37th ward, and incorrect ballotsbeing given to voters in split precincts. Split precincts were those in which some of the voterslived in the 78th district and others lived in another representative district, thus requiring theissuance of different ballots to each group of voters. Graham thus sought, for the first time, anew election in the 78th district or, at a minimum, a new election in those precincts whichcontain split representative districts and in the precinct in which ballots were missing.

On June 4, 2002, Graham filed a pleading entitled "Motion for a New Election" whichcontained similar allegations as the second amended verified complaint for election contest andsimilar references to the fundamental right to vote and requested that "before the court begins thetask of deciding the candidates' fate, ballot by ballot," it consider ordering a special election to beheld within 30 days. The motion for a new election was noticed up on an emergency basis.

On June 4, 2002, Reid filed a motion, pursuant to section 2-615 of the Code of CivilProcedure (735 ILCS 5/2-615 (West 2000)) to strike count III of Graham's second amendedverified petition for election contest. Reid also filed a motion to strike certain paragraphs ofexhibit B of the second amended verified complaint for election contest. Exhibit B, entitled"Verified and Specified Grounds of Contest," was a list of alleged errors and/or omissionsdiscovered by Graham "after due investigation independent of the discovery recounts andconcluding the discovery recounts." Reid also filed a response to Graham's motion for a newelection in which she argued, among other things, that the court had no authority to grant therelief requested.

On June 10, 2002, Graham filed a "Motion to Amend Petition to Add Count Relative toVoters" which was accompanied by the affidavits of these voters. In this motion, Graham arguedthat six voters who allegedly wanted to vote for Graham could not do so because her name wasnot on the ballot book in the booth they were in, and also that election judges failed to give votersin the 78th district the correct ballot, namely, a type "A" ballot. In this motion, Grahamrequested that these six voters "be added as additional petitioners as to Count III of the SecondAmended Petition and leave be granted to file a Third Amended Petition to include theallegations contained in this Motion."

On June 14, 2002, Graham filed a third amended petition for a new election. On June 20,2002, Reid filed an amended counterclaim setting forth various irregularities, allegedly favorableto Reid, which were found at the court-ordered recount, as well as allegations of vote fraud in the29th ward of Chicago. Reid also filed the following three motions: (1) to dismiss the claims ofthe six voters on the basis that there was no private right of action under section 7-63 of theElection Code (10 ILCS 5/7-63)(West 1998)); (2) to dismiss the claim that missing ballotsshould require a new election; and (3) to strike the federal constitutional claims in the thirdamended petition because they failed to state a cause of action under applicable federal law, suchas section 1983 of the federal Civil Rights Act (42 U.S.C.