SUSAN C. HILEMAN, Petitioner-Appellee, v. SHARON McGINNESS, Respondent-Appellant (Louis Maze, Respondent), 316 Ill. App. 3d 868

JUSTICE CHAPMAN delivered the opinion of the court: On March 16, 2000, five days before the Alexander County primary election, agents of the Illinois State Police and the Illinois Attorney General’s office appeared at the Alexander County clerk’s office with a search warrant. Six hundred eighty-one absentee ballots designated for the March 21, 2000, Democratic Party primary election were confiscated. 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 the polls.

Louis Maze is the Alexander County clerk. Susan Hileman is the current Alexander County circuit clerk. Both Susan Hileman and Sharon McGinness were candidates in the March 21, 2000, primary election for the Democratic nomination for circuit clerk. The initial primary election results indicated that 1,299 votes were cast for McGinness and 1,089 votes were cast for Hileman. The total number of votes cast was 2,388. The winning margin for McGinness was 210 votes. In terms of percentages, McGinness won with approximately 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 court to 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 the vote count or, in the alternative, for the primary election to be declared void and for a new election to be held. The circuit court declared the result of the primary election for the Democratic candidate for circuit clerk invalid, and it ordered a new primary election to be held. 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 absentee ballots are presumed invalid. The parties also agree that there are no markings or indications upon the absentee ballots which would allow them to be segregated from all other ballots cast. Thus, there is no way to distinguish the 681 ballots from any other vote cast in the primary election. The parties disagree as to the appropriate solution to the situation.

The dispute 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 the same percentages that they received in the initial canvass.

Those votes would then be deducted from the current totals, which include the admittedly indistinguishable and illegal ballots. McGinness cites Neff v. George, 364 Ill. 306, 4 N.E.2d 388 (1936), in support of her argument. Neff concerned an election for county sheriff in which 71 votes were deemed illegal because they were cast by nonresidents. In that case it could not be determined for which candidate the 71 ballots were cast. The court declined to exclude or apportion any of the votes.

Using the terms “exclude” and “apportion” interchangeably, the court noted that if it had excluded the votes, it would have apportioned them between the candidates in the proportions that the number of votes cast for each bore to the total votes cast in the precinct. Neff, 364 111. at 312-13, 4 N.E.2d at 392. Although the court recognized apportionment as an appropriate option, it noted that it was not going to consider whether exclusion was improper, because an apportionment or exclusion of the 71 votes would not change the result of the election.

Throughout the years the Illinois Supreme Court and the Fifth District of the Appellate Court have addressed the issue of apportionment versus exclusion under various scenarios. The cases can generally be divided into two types: those that favor exclusion of the ballots and those that favor apportionment. In some election-contest cases, the ballots either are improperly endorsed by election judges or are not otherwise endorsed in accordance with statutory election procedure.

As a rule, if there is no showing of fraud but the election process has been tainted by the failure to follow proper statutory procedures, the supreme court has held that the tainted ballots should 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. See DeFabio v. Gummersheimer, 307 Ill.

App. 3d 381, 717 N.E.2d 540 (1999) (an entire precinct’s ballots were excluded because ballots were not initialed by an election judge), aff’d, 192 111. 2d 63, 733 N.E.2d 1241 (2000); Leach v. Johnson, 20 Ill. App. 3d 713, 313 N.E.2d 636 (1974) (36 nonresident voters’ ballots were excluded); Webb v. Benton Consolidated 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 is involved. 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, Ill N.E.2d 120 (1953). In an election contest where no fraud is involved, the exclusion of ballots is a simple remedy if the irregular ballots are easily distinguishable from the total tally. However, in cases 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. See Thornton v.

Gardner, 30 Ill. 2d 234, 195 N.E.2d 723 (1964) (seven voters voted at the wrong polling place); McNabb v. Hamilton, 349 Ill. 209, 181 N.E. 646 (1932) (election judges improperly initialed ballots); Flowers v. Kellar, 322 Ill. 265, 153 N.E. 351 (1926) (voters were ineligible to vote); Choisser v. York, 211 Ill. 56, 71 N.E. 940 (1904) (6 nonresidents voted and 30 votes were cast outside the voting booth); see also Smoda v.

Gallagher, 412 Ill. 271, 106 N.E.2d 181 (1952) (the court could not apportion because there was only one precinct, but the court would have apportioned it if it were possible); In re Contest of the Election for the Offices of Governor & Lieutenant Governor Held at the General Election on November 2, 1982, 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.

Benton Consolidated 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) (six missing ballots were apportioned); Jordan v. 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 ballots should be excluded.

Because the absentee ballots were commingled in this case, the court would 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 confiscated absentee ballots should be apportioned between the candidates in the same percentages that they received in the initial canvass. The 681 votes would then be deducted from the current totals.

Given the effect a finding of fraud would have on this election contest, we remand this cause to the trial court with directions that the trial court hear evidence if necessary and then make a decision as to whether fraud was evident in the electoral process. Depending on the trial court’s findings on the fraud issue, a ruling should then be made in accordance with this opinion — either to apportion the ballots or to hold a new primary election. Reversed; cause remanded with directions. MAAG, J., concurs.