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On March 16, 2000, five days before the Alexander County primary election, agentsof the Illinois State Police and the Illinois Attorney General's office appeared at theAlexander County clerk's office with a search warrant. Six hundred eighty-one absenteeballots designated for the March 21, 2000, Democratic Party primary election wereconfiscated. The 681 ballots were returned to the county clerk on the day of the primary. These ballots were commingled with and counted with all of the ballots that were cast at thepolls.

Louis Maze is the Alexander County clerk. Susan Hileman is the current AlexanderCounty circuit clerk. Both Susan Hileman and Sharon McGinness were candidates in theMarch 21, 2000, primary election for the Democratic nomination for circuit clerk. Theinitial primary election results indicated that 1,299 votes were cast for McGinness and 1,089votes were cast for Hileman. The total number of votes cast was 2,388. The winningmargin for McGinness was 210 votes. In terms of percentages, McGinness won withapproximately 54.3% of the vote, while Hileman received approximately 45.7% of the vote.

After the primary, Hileman filed a petition to contest the election and asked the courtto declare all of the ballots cast void due to election irregularities, illegalities, and fraud. Hileman also asked for the absentee ballots to be declared void and to be excluded from thevote count or, in the alternative, for the primary election to be declared void and for a newelection to be held. The circuit court declared the result of the primary election for theDemocratic candidate for circuit clerk invalid, and it ordered a new primary election to beheld. McGinness appeals. We reverse and remand for further proceedings.

The trial court did not hold an evidentiary hearing regarding the allegations of fraud;thus, no fraud was actually established. The parties agree, however, that the absenteeballots are presumed invalid. The parties also agree that there are no markings or indicationsupon the absentee ballots which would allow them to be segregated from all other ballotscast. Thus, there is no way to distinguish the 681 ballots from any other vote cast in theprimary election. The parties disagree as to the appropriate solution to the situation. Thedispute concerns the legal issue of how to remedy the commingling of the invalid ballots. Disputed questions of law are reviewed de novo. Statler v. Catalano, 293 Ill. App. 3d 483,486, 691 N.E.2d 384, 386 (1997).

McGinness argues that although the 681 absentee ballots must be presumed invalid,the loss of those votes must be prorated or apportioned between Hileman and McGinness. McGinness contends that the 681 void ballots should be apportioned to the candidates in thesame percentages that they received in the initial canvass. Those votes would then bededucted from the current totals, which include the admittedly indistinguishable and illegalballots. McGinness cites Neff v. George, 364 Ill. 306, 4 N.E.2d 388 (1936), in support ofher argument.

Neff concerned an election for county sheriff in which 71 votes were deemed illegalbecause they were cast by nonresidents. In that case it could not be determined for whichcandidate the 71 ballots were cast. The court declined to exclude or apportion any of thevotes. Using the terms "exclude" and "apportion" interchangeably, the court noted that ifit had excluded the votes, it would have apportioned them between the candidates in theproportions that the number of votes cast for each bore to the total votes cast in the precinct. Neff, 364 Ill. 306, 4 N.E.2d at 392. Although the court recognized apportionment as anappropriate option, it noted that it was not going to consider whether exclusion wasimproper, because an apportionment or exclusion of the 71 votes would not change theresult of the election.

Throughout the years the Illinois Supreme Court and the Fifth District of theAppellate Court have addressed the issue of apportionment versus exclusion under variousscenarios. The cases can generally be divided into two types: those that favor exclusion ofthe ballots and those that favor apportionment.

In some election-contest cases, the ballots either are improperly endorsed by electionjudges or are not otherwise endorsed in accordance with statutory election procedure. Asa rule, if there is no showing of fraud but the election process has been tainted by the failureto follow proper statutory procedures, the supreme court has held that the tainted ballotsshould be excluded. See DeFabio v. Gummersheimer, 192 Ill. 2d 63, 733 N.E.2d 1241(2000); Laird v. Williams, 281 Ill. 233, 118 N.E. 73 (1917); Brents v. Smith, 250 Ill. 521,95 N.E. 484 (1911); Choisser v. York, 211 Ill. 56, 71 N.E. 940 (1904).

The Fifth District Appellate Court has followed the supreme court holdings. SeeDeFabio v. Gummersheimer, 307 Ill. App. 3d 381, 717 N.E.2d 540 (1999) (an entireprecinct's ballots were excluded because ballots were not initialed by an election judge),aff'd, 192 Ill. 2d 63, 733 N.E.2d 1241 (2000); Leach v. Johnson, 20 Ill. App. 3d 713, 313N.E.2d 636 (1974) (36 nonresident voters' ballots were excluded); Webb v. BentonConsolidated High School District No. 103, 130 Ill. App. 2d 824, 264 N.E.2d 415 (1970)(10 ballots were excluded because an improper election procedure was utilized).

Exclusion rather than apportionment is also the procedure of choice where fraud isinvolved. See Weston v. Markgraf, 328 Ill. 576, 160 N.E. 215 (1928); Emery v. Hennessy,331 Ill. 296, 162 N.E. 835 (1928); Clark v. Quick, 377 Ill. 424, 36 N.E.2d 563 (1941);Lehman v. Hill, 414 Ill. 173, 111 N.E.2d 120 (1953).

In an election contest where no fraud is involved, the exclusion of ballots is a simpleremedy if the irregular ballots are easily distinguishable from the total tally. However, incases with no fraud but where it cannot be determined for which candidate a ballot is cast,exclusion is impossible. In those cases, the supreme court has opted for apportionment. SeeThornton v. Gardner, 30 Ill. 2d 234, 195 N.E.2d 723 (1964) (7 voters voted at the wrongpolling place); McNabb v. Hamilton, 349 Ill. 209, 181 N.E. 646 (1932) (election judgesimproperly initialed ballots); Flowers v. Kellar, 322 Ill. 265, 153 N.E. 351 (1926) (voterswere ineligible to vote); Choisser v. York, 211 Ill. 56, 71 N.E. 940 (1904) (6 nonresidentsvoted and 30 votes were cast outside the voting booth); see also Smoda v. Gallagher, 412Ill. 271, 106 N.E.2d 181 (1952) (the court could not apportion because there was only oneprecinct, but the court would have apportioned it if it were possible); In re Contest of Election for Offices of Governor & Lieutenant Governor, 93 Ill. 2d 463, 444 N.E.2d 170(1983) (the court would have apportioned if the pleadings had been sufficient).

It appears that the Fifth District Appellate Court also chooses apportionment if tainted ballots are commingled but there is no evidence of fraud. See Webb v. BentonConsolidated High School District No. 103, 130 Ill. App. 2d 824, 264 N.E.2d 415 (1970)(absentee ballots were tainted because of numerous procedural violations); Whitsell v. Davis,67 Ill. App. 3d 962, 385 N.E.2d 729 (1978) (6 missing ballots were apportioned); Jordanv. Officer, 170 Ill. App. 3d 776, 525 N.E.2d 1067 (1988) (600 to 700 ineligible voters'ballots were apportioned).

Here, the trial court did not hold an evidentiary hearing on the allegations of fraud. Given case precedent, if fraud is shown to have permeated the electoral process, the ballotsshould be excluded. Because the absentee ballots were commingled in this case, the courtwould then have no choice but to void the election and to order a new primary election. If there is no evidence of fraud, case precedent suggests that the 681 confiscatedabsentee ballots should be apportioned between the candidates in the same percentages thatthey received in the initial canvass. The 681 votes would then be deducted from the currenttotals.

Given the effect a finding of fraud would have on this election contest, we remandthis cause to the trial court with directions that the trial court hear evidence if necessary andthen make a decision as to whether fraud was evident in the electoral process. Dependingon the trial court's findings on the fraud issue, a ruling should then be made in accordancewith this opinion-either to apportion the ballots or to hold a new primary election.

Reversed; cause remanded with directions.

MAAG, J., concurs.