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Third Division
May 12, 2004

JUSTICE HALL delivered the opinion of the court:

Defendant Patricia Deganutti was charged by indictment withone count of unlawful observation of voting and one count ofabsentee ballot violation, in connection with the completion andmailing of a voter's absentee ballot cast in the March 21, 2000,primary election. Defendant was also charged in a secondindictment for the same two offenses regarding a second voter inthe same election. The two cases were consolidated.

Following a bench trial, defendant was found guilty on allfour counts. After defendant's motion for reconsideration or inthe alternative for a new trial was denied, the trial courtsentenced defendant to 18 months' probation. She filed hertimely notice of appeal on September 11, 2002.

On appeal, defendant contends that: (1) she was not provenguilty beyond a reasonable doubt of unlawful observation ofvoting; (2) she was not proven guilty beyond a reasonable doubtof absentee ballot violations; and (3) section 29-9 of theElection Code (Code) (unlawful observation of voting) and section29-20(4) of the Code (absentee ballots - violations) (10 ILCS5/29-9, 29-20(4) 2000)) are both unconstitutional. For thereasons that follow, we affirm.

The presented testimony revealed the following facts. Atthe time of the alleged offenses, defendant worked as a precinctcaptain in precinct 65, in the Town of Cicero, Illinois. It wasestablished that during the months immediately leading up to theMarch 21, 2000, primary election, defendant twice visited therespective homes of two registered voters living in the town ofCicero.

Rose M. Soderholm testified that in January/February 2000,she was in the hallway of her apartment building when she wasapproached by defendant and an unidentified male. Soderholmtestified that she had not previously met defendant. Defendantintroduced herself as the area's precinct captain and askedSoderholm if she was a registered voter, to which Soderholmreplied "yes." Defendant also wanted to know if the building'slandlord "was around." Defendant went upstairs to speak with thelandlord and shortly afterwards returned to talk with Soderholm. This conversation took place in the doorway to Soderholm'sapartment.

Soderholm testified that after she responded to defendantthat she was interested in voting, defendant handed her anapplication for an absentee ballot for the upcoming March 21,2000, primary election. Soderholm signed the application andhanded it back to defendant, who took the application with her. Soderholm stated that she had never previously applied to vote byabsentee ballot. Evidence was presented that after Soderholmsigned her application and handed it over to defendant, someunknown individual later filled in Soderholm's return address onthe application and put check marks in certain boxes on theapplication where it asked the applicant to give the reason whyhe or she was voting absentee and to indicate the applicant'spolitical affiliation. Soderholm's application read that thereason she was voting absentee was because she expected to beabsent from her county of residence on election day and itindicated that she wanted to vote in the Republican primary.

Sometime later, Soderholm received her absentee ballot inthe mail. Shortly thereafter, in early March 2000, defendantmade an unannounced visit to Soderholm's apartment. Soderholmhad not requested the visit. Soderholm and defendant sat on thecouch in Soderholm's living room, where defendant inquired as towhether Soderholm had received the absentee ballot. Afteracknowledging receipt of the absentee ballot, Soderholm retrievedthe envelope containing the ballot materials and she anddefendant opened the envelope and took out the ballot. Soderholmtestified that as she and defendant sat together on the couch,about one foot from each other, she followed defendant'sinstructions on which numbers to punch on the absentee ballot. Soderholm testified that defendant was "watching" her as shepunched out the numbers on the ballot.

Soderholm testified that she did not punch any numbers onthe ballot other than the numbers defendant instructed her topunch. Soderholm stated that during this time she never askeddefendant for any candidate recommendations regarding theelection, never asked for any assistance in completing theballot, and never told defendant that she did not understand howto fill out the ballot.

After Soderholm finished punching the numbers on theabsentee ballot, she and defendant put the ballot in an envelopeand sealed the envelope, and Soderholm signed the back of theenvelope. Soderholm then handed the sealed envelope todefendant, who took the envelope and left the apartment. Soderholm testified that she never asked defendant to mail theenvelope for her.

On cross-examination, Soderholm acknowledged that defendantnever bribed or threatened her into filling out the absenteeballot. She also conceded that defendant never told her to keepthe execution of her absentee ballot a secret. Soderholmtestified that eventually an investigator from the State'sAttorney's office showed up at her apartment asking questionsregarding her absentee ballot.

Next, Martha A. Martinez testified that in the weeks priorto the March 2000, primary election, defendant and a man shebelieved was named Chuck Gonzales came to her home. She hadnever met defendant. Defendant introduced herself as theprecinct captain and asked Martinez if she wanted to voteabsentee. Martinez responded that she wanted to vote absenteerather than travel to the polls and stand in line to vote sinceshe was nine months pregnant and had gestational diabetes, whichrequired her to take daily insulin. Defendant then gave Martinezan application for an absentee ballot for the upcoming March 21,2000, primary election. Martinez signed the application andhanded it back to defendant, who took the application and left.

Evidence was presented that an unidentified person laterfilled in Martinez' return address on the application and putcheck marks in boxes on her application where it asked her togive the reason why she was voting absentee and indicate herpolitical affiliation. Similar to Soderholm's application,Martinez' application read that the reason she was votingabsentee was because she expected to be absent from her county ofresidence on election day and it indicated that she wanted tovote in the Republican primary.

Approximately a week later, Martinez received her absenteeballot in the mail. Martinez put the ballot on her bedroomdresser and forgot about it until two weeks later when defendantpaid an unannounced visit to her home. Defendant was accompaniedby Chuck Gonzales, the Hispanic liaison to the Town of Cicero. Martinez, her husband, defendant, and Gonzales all met inMartinez' living room. Martinez informed defendant that she hadnot yet mailed her absentee ballot because she had been feelingsick the last two weeks. Defendant responded that it was "okay"and that Martinez could fill out the ballot right then. Inresponse, Martinez stated that she felt sick and would like tofill out the ballot at a later time. Defendant replied thatMartinez should fill out the ballot at that time, and if she didso, defendant would take the ballot and drop it in the mailboxfor her.

Martinez then went to her bedroom, where she retrieved theenvelope containing the absentee ballot materials, opened theenvelope, and took out the ballot. Martinez, defendant, andGonzales went into Martinez' dining room because there was betterlighting in that room. Defendant then stated, "let me give yousome numbers," whereupon defendant gave Martinez a flier withnumbers on it. Martinez took the flier, sat down at her diningroom table and proceeded to punch holes in the ballot card thatcorresponded to the numbers on the flier. Martinez testifiedthat as she was punching holes in her ballot, defendant wasstanding about three feet away on her right-hand side. Martinezdid not notice if defendant was looking directly at her since shewas busy punching holes in the ballot. Martinez stated that shenever asked for defendant's assistance in completing the ballot.

Martinez testified that after she finished completing theballot, she inserted it into a small holding slip, which is inturn put into a mailing envelope. Martinez testified that shegave defendant the slip and ballot since defendant was holdingthe rest of the absentee ballot materials. Defendant removed theballot from the slip, held it up to the light, and informedMartinez that one of the numbers had not been punched all the waythrough on the ballot card. Martinez took the ballot and punchedthe number through the ballot card a second time.

After punching the ballot a second time, Martinez handed theballot back to defendant. Defendant then told Martinez that shewould mail Martinez' ballot "with the rest of them," but thatMartinez would have to sign the back of the mailing envelopebefore it could be mailed. Martinez signed the envelope andhanded it back to defendant, who then took the envelope and theenclosed ballot and left. Martinez testified that she did notask defendant to mail her absentee ballot.

Gary M. Rycyzyn, an employee with the election department ofthe Cook County clerk's office, gave direct testimony regardingthe absentee ballot process. On cross-examination, Rycyzyntestified that to his knowledge, Soderholm's and Martinez' returnenvelopes were not found to have been tampered with.

Defendant testified in her own behalf. She did not disputeSoderholm's and Martinez' testimony, but testified that she haddone exactly what she was instructed to do by fellow precinctcaptains and other individuals in her political organization. Defendant now appeals her convictions.

ANALYSIS

Defendant first contends that she was not proven guiltybeyond a reasonable doubt of unlawful observation of votingbecause the State failed to prove that she "knowingly" observedeither Soderholm or Martinez complete her respective absenteeballot. Section 29-9 of the Code, titled "Unlawful observationof voting," provides in relevant part:

"[A]ny person who knowingly marks his ballot or castshis vote on a voting machine or voting device so that it canbe observed by another person, and any person who knowinglyobserves another person lawfully marking a ballot orlawfully casting his vote on a voting machine or votingdevice, shall be guilty of a Class 4 felony." 10 ILCS 5/29-9(West 2000).

In the present case, defendant argues that the State failedto prove the element of knowledge beyond a reasonable doubt. Wemust reject defendant's contention.

Under the applicable standard of review, this court mustdetermine whether any reasonable trier of fact could have foundthe essential elements of the crime beyond a reasonable doubt,when viewing the evidence in the light most favorable to theprosecution. People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d267 (1985). Pursuant to section 4-5 of the Criminal Code of1961, a defendant is deemed to have acted knowingly if he wasconsciously aware that his conduct was practically certain tocause the offense defined in the statute. 720 ILCS 5/4-5 (West2000). By its very nature, the mental element of knowledge isordinarily established by circumstantial evidence rather thandirect evidence. People v. Weiss, 263 Ill. App. 3d 725, 731, 635N.E.2d 635 (1994). Knowledge may be inferred from the facts andcircumstances of the case. People v. Holt, 271 Ill. App. 3d 1016,1025, 649 N.E.2d 571 (1995).

Based on the facts and circumstances in this case, the Stateproved beyond a reasonable doubt that defendant knowinglyobserved both Soderholm and Martinez as they punched theirrespective absentee ballots. In regard to Soderholm, theundisputed facts reveal that as Soderholm marked her ballot,defendant sat nearby on the same couch, only one foot away. During this time, defendant recited the numbers she wantedSoderholm to punch on the ballot and Soderholm punched her ballotaccording to defendant's instructions. Moreover, Soderholmtestified that defendant was "watching" her as she punched outthe numbers on the ballot. Viewing the evidence in the lightmost favorable to the prosecution, we find that a rational trierof fact could have found that defendant knowingly observedSoderholm completing her absentee ballot.

The evidence also shows that defendant knowingly observedMartinez as she punched her absentee ballot. Martinez testifiedthat as she was about to start punching her ballot card,defendant stated, "let me give you some numbers," and then handedMartinez a flier with numbers on it. Martinez took the flier,sat at her dining room table and punched holes in the ballot thatcorresponded to the numbers on the flier. Martinez testifiedthat as she was punching holes in her ballot, defendant wasstanding about three feet away on her right-hand side. Martinezstated that after she punched the ballot the first time andhanded it to defendant, defendant held the ballot up to the lightand informed Martinez that one of the numbers had not beenpunched all the way through on the ballot card. Martinez thenpunched the ballot again and returned it to defendant. Again,viewing this evidence in the light most favorable to theprosecution, we find that a rational trier of fact could havefound that defendant knowingly observed Martinez completing herabsentee ballot.

The evidence is also sufficient to establish that defendantacted knowingly in violating section 29-20 of the Code, titled"Absentee ballots - violations," which provides in relevant part:

"A person is guilty of a Class 3 felony who knowingly:

* * *

(4) *** [T]akes an absentee ballot of another person inviolation of Section 19-6 so that an opportunity for fraudulentmarking or tampering is created." 10 ILCS 5/29-20(4) (West 2000).

Section 19-6 of the Code provides in pertinent part:

"It shall be unlawful for any person not the voter, his or herspouse, parent, child, brother, or sister, or a representative ofa company engaged in the business of making deliveries to theelection authority to take the ballot and ballot envelope of avoter for deposit into the mail unless the ballot has been issuedpursuant to application by a physically incapacitated electorunder Section 3-3 or a hospitalized voter under Section 19-13."10 ILCS 5/19-6 (West 2000).

The absentee ballot return provisions of section 19-6 of theCode are mandatory, not directory. People v. Hays, 142 Ill. App.3d 754, 757-58, 492 N.E.2d 213 (1986). This section of the Codewas enacted to "safeguard the integrity of the election processby depriving unauthorized persons of the opportunity to tamperwith ballots after they have been completed." Hays, 142 Ill. App.3d at 758. Thus, "the relevant inquiry is not whether a ballothas actually been tampered with, but whether the opportunity forsuch tampering by unauthorized persons was present." Hays, 142Ill. App. 3d at 758.

In the instant case, defendant maintains that the Statefailed to prove that she had knowledge that her actions inmailing the absentee ballots were unlawful and therefore theState has in turn failed to prove that she knowingly violated theabsentee ballot violation section. We must reject defendant'scontention. The statute does not require that a defendant knowthat the act is prohibited, but only that the act of taking anabsentee ballot of another person be done knowingly. 10 ILCS5/29-20(4) (West 2000).

The evidence revealed that defendant knowingly tookSoderholm's and Martinez' absentee ballots and mailed them. Defendant testified that it was her practice to take a voter'scompleted absentee ballot and mail it for him, and that shefollowed this practice with Soderholm and Martinez.

Finally, defendant contends that section 29-9 of the Code(unlawful observation of voting) and section 29-20(4) of the Code(absentee ballots - violations) both violate federal and statesubstantive due process guarantees because these statutes onlyrequire a knowing mental state rather than a culpable mentalstate or criminal intent and thereby permit felony convictionsfor wholly innocent or inadvertent conduct. Again, we mustreject the defendant's contentions.

Whether a statute is constitutional is a question of lawthat is reviewed de novo. People v. Morgan, 203 Ill. 2d 470, 486,786 N.E.2d 994 (2003). Statutes are presumed to beconstitutional and therefore the burden falls on the partychallenging the statute to establish its invalidity. People v.Wright, 194 Ill. 2d 1, 24, 740 N.E.2d 755 (2000). Whenlegislation does not affect a fundamental right, as in this case,the legislation's compliance with substantive due processrequirements is determined under the rational basis test. SeeWright, 194 Ill. 2d at 24. Under the rational basis test, astatute is upheld where it "'bears a reasonable relationship to apublic interest to be served, and the means adopted are areasonable method of accomplishing the desired objective.'"Wright, 194 Ill. 2d at 24, quoting People v. Adams, 144 Ill. 2d381, 390, 581 N.E.2d 637 (1991).

As previously mentioned, the statutes at issue were enactedto safeguard the integrity of the election process. See Hays, 142Ill. App. 3d at 758. Both section 29-9 and section 29-20(4) arerationally related to the legitimate state goal of protecting andpreserving the integrity of the election process.

Section 29-9 of the Code, the unlawful-observation-of-votingstatute, safeguards voter privacy, protecting voters frompotential coercion, intimidation and other influences and therebypreserves the integrity of the ballot. Section 29-20(4) of theCode, the absentee-ballot-violations statute, protects theintegrity of the election process by depriving unauthorizedpersons of the opportunity to tamper with completed absenteeballots, thereby addressing such issues as coercion, fraud, andsecrecy that potentially arise with absentee voting.

In regard to the statutes at issue, imposition of a culpablemental state would defeat their purpose of protecting andpreserving the integrity of the election process. If criminalintent was added to these statutes, the statutes would fail toprevent situations where criminal conduct occurred despite thelack of criminal intent.

The act of knowingly observing another individual cast hisballot, and the act of an unauthorized person knowingly taking anabsentee ballot in order to mail that ballot, are acts that arein themselves so potentially damaging to the integrity of theelection process that courts have determined that such actorsneed not have a criminal intent in order to be held criminallyliable. See, e.g., Hays, 142 Ill. App. 3d at 759 (stating thatthe knowing failure to comply with the provisions of the ElectionCode constitute a criminal offense). The same reasoning wasapplied in People v. Thoennes, 334 Ill. App. 3d 320, 777 N.E.2d1075 (2002), where the reviewing court upheld theconstitutionality of a statute that made it a felony for anindividual to knowingly impersonate a peace officer despite thatindividual's lack of criminal intent; and People v. Farmer, 165Ill. 2d 194, 650 N.E.2d 1006 (1995), where our supreme courtupheld a statute that made it a crime to knowingly bringcontraband into a penal institution despite the smuggler's lackof criminal intent.

Section 29-9 and section 29-20(4), in requiring only aknowing mental state rather than criminal intent, are bothrationally related to the legitimate state goal of protecting andpreserving the integrity of the election process. Consequently,we hold that both statutes are constitutional.

Accordingly, for the reasons set forth above, the judgmentof the circuit court of Cook County is affirmed.

Affirmed.

SOUTH and KARNEZIS, JJ., concur.