Nadine, here is the relevant portion of the Illinois decision:
7. Partially Punctured Ballots
The appellant argues that the trial court erred in refusing to visually inspect approximately 30 partially punctured ballots. The appellant claims that visual inspection of these ballots shows that the voters clearly indicated their intent to vote for a particular candidate. She claims that even though the voters' intent was clear, the votes were not counted because the ballots could not be read by the electronic tabulating equipment. The appellant explains that voters cast their votes by placing a punch card ballot in a special device. While the card is in the device, the voter uses an instrument called a stylus to dislodge a perforated, square chad beside a number which corresponds to a number given to a particular candidate whom the voter has chosen. Later an electronic tabulating machine counts the votes cast for each candidate by passing light through the holes the stylus has made. As light passes through the hole, the machine records each vote.
In some instances, the chad did not completely detach from the ballot, but the voter instead punctured a round hole in the chad, partially dislodged the chad or made a strong indentation in the chad. The testimony at trial suggested that such perforations and indentations may occur if a voter punches the ballot while it is outside the device, punches the ballot which is not properly attached to the four corners of the device, or, because of feebleness, does not apply the stylus to the ballot with sufficient force to dislodge the chad. If sufficient quantities of light cannot pass through these perforations or indentations, the electronic tabulating equipment treats the ballot as blank.
The appellant claims that, although the electronic tabulating equipment did not count the ballots, visual inspection of the ballots shows that the voters punctured the ballots to a sufficient degree that the ballots clearly reflect the voters' intent to vote for either the appellant or appellee. She argues that the trial court should have visually inspected the ballots to determine whether the voters' intent could be ascertained, and then should have manually counted those ballots which clearly indicated the voters' intent, even though those ballots did not register on the electronic tabulating equipment. She argues that the trial court erred as a matter of law in concluding that visual inspection of the disputed ballots was improper and that only those votes which registered upon the electronic tabulating equipment would be counted.
We first consider whether the trial court erred in refusing to visually inspect the disputed ballots. The trial court denied the appellant's motion to inspect the ballots, holding that a voter must completely dislodge the chad from the ballot before that vote may be counted. As authority for its conclusion, the trial court relied upon a series of cases holding that the only appropriate way for a voter to mark a paper ballot is to make a cross (x) in the appropriate space on the ballot.
We agree with the appellant that the court's analysis was flawed. The Election Code expressly states that voters must mark their paper ballots by making a cross (x) in the space next to the candidate of their choice. (Ill.Rev.Stat.1989, ch. 46, par. 17-11.) Our courts have given this statutory provision a mandatory construction and have held that a vote will not be counted unless two lines intersect in a cross in the appropriate place on the ballot, even if the voter's intent is clear. Scribner v. Sachs (1960), 18 Ill.2d 400, 164 N.E.2d 481 (refusing to count ballots marked with a check mark or the word "yes"); Tuthill v. Rendelman (1944), 387 Ill. 321, 345, 56 N.E.2d 375; Barlick v. Kunz (1941), 375 Ill. 318, 325, 31 N.E.2d 283.
Nothing in our Election Code, however, requires voters to completely dislodge the chad from the ballot before their vote will be counted. Article 24A simply authorizes the use of voting systems "in which the voter records his votes by means of marking or punching a ballot or one or more ballot cards." (Ill.Rev.Stat.1989, ch. 46, par. 24A-1.) The ballot cards used in the election at issue here are defined as ballots which are "voted by the process of punching." (Ill.Rev.Stat.1989, ch. 46, par. 24A-2.) Ballot cards are inserted into a "marking device," defined as an apparatus in which "ballots * * * are inserted and used in connection with a punch apparatus for the piercing of ballots by the voter, or any approved device for marking a paper ballot with ink or other substance which will enable the ballot to be tabulated by means of automatic tabulating equipment or by an electronic scanning process." (Ill.Rev.Stat.1989, ch. 46, par. 24A-2.) Although these definitional provisions suggest that voters must punch their ballots to cast their votes, they do not require voters to completely dislodge the chad before their votes may be counted.
Although the legislature certainly has the power to provide a mandatory standard for marking punch card ballots, as it did for the marking of paper ballots, no such standard has been set out in the Election Code. We would be usurping the power of the legislature if we were to infer such a standard in the Election Code and then conclude that the legislature intended such standard to be given a mandatory construction.
The appellee argues that the questioned ballots may not be counted even if the Election Code does not specifically require voters to completely dislodge the chad from the ballot. She argues that section 24A-15.1 of the Election Code expressly states that punch card ballots must be recounted on automatic tabulating equipment. That section provides:
"The automatic tabulating equipment shall be tested prior to the discovery recount or election contest as provided in Section 24A-9, and then the official ballots or ballot cards shall be recounted on the automatic tabulating equipment * * *.
Any person who has filed a petition for discovery recount may request that a redundant count be conducted in those precincts in which the discovery recount is being conducted." (Ill.Rev.Stat.1989, ch. 46, par. 24A-15.1.)
A redundant count is "a verification of the original computer count by another count using compatible equipment or by hand as part of a discovery recount." Ill.Rev.Stat.1989, ch. 46, par. 24A-2.
The appellee argues that, under section 24A-15.1 punch card ballots must be recounted on automatic tabulating equipment. She argues that ballots which cannot be counted on the automatic tabulating equipment are invalid. Respondent, in essence, urges this court to construe section 24A-15.1 as mandatory in nature. As stated, whether a statutory provision is mandatory or simply directory is a question of legislative intent.
Where a statute directs that an act shall be done in a particular manner and states that failure to perform the act in the manner stated will render the affected ballot void, this court must give the statute a mandatory construction. Where the effect of failure to comply with a particular statutory requirement is not specified, however, courts must consider the nature and object of the statutory provision and the consequences which would result from construing it one way or another. Hester v. Kamykowski (1958), 13 Ill.2d 481, 150 N.E.2d 196.
Here, section 24A-15.1 simply directs that ballot cards shall be recounted on the automatic tabulating equipment. It does not state that those ballots which cannot be read by the automatic tabulating equipment shall not be counted. Nor does the Election Code specifically prohibit the counting of punch card ballots by hand. In fact, section 24A-2 of the Code specifically authorizes a candidate to verify the results of a discovery recount by counting the ballots by hand. (See Ill.Rev.Stat.1989, ch. 46, par. 24A-2.) Although section 24A-2 does not expressly apply to court-ordered recounts in election contests, the trial court here specifically authorized a hand count of ballots in any precinct where the automatic tabulating equipment generated a result different from the results on election night or in the discovery count. The trial record shows and the appellee concedes that ballots in some precincts were manually counted during the recount process pursuant to this order and that evidence of these hand counts was introduced at trial. In fact, the stipulation that the tabulating equipment was functioning properly was based, in part, on such hand recounts. These facts suggests that a hand count is both a permissible and a necessary part of the recount process.
The fact that section 24A-15.1 does not expressly provide for a hand count of ballots which are not read by the automatic tabulating equipment does not necessarily indicate that the legislature intended to prohibit such a result. The purpose of our election laws is to obtain a correct expression of the intent of the voters. Our courts have repeatedly held that, where the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect even though the ballot is not strictly in conformity with the law. (Gulino v. Cerny (1958), 13 Ill.2d 244, 248, 148 N.E.2d 724; Griffin v. Rausa (1954), 2 Ill.2d 421, 424, 118 N.E.2d 249.) Permitting a hand count of ballots which clearly reflect the voters' intent would not abrogate the general statutory scheme regarding punch card ballots or undermine the fairness or integrity *80 of the voting process. The legislature authorized the use of electronic tabulating equipment to expedite the tabulating process and to eliminate the possibility of human error in the counting process, not to create a technical obstruction which defeats the rights of qualified voters. This court should not, under the appearance of enforcing the election laws, defeat the very object which those laws are intended to achieve. To invalidate a ballot which clearly reflects the voter's intent, simply because a machine cannot read it, would subordinate substance to form and promote the means at the expense of the end. Hester v. Kamykowski (1958), 13 Ill.2d 481, 150 N.E.2d 196; People ex rel. Agnew v. Graham (1915), 267 Ill. 426, 108 N.E. 699.
The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter's disability or inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect. We conclude that section 24A-15.1 is directory, and that ballots which cannot be counted on the automatic tabulating equipment may be manually counted where the voter's intent can be determined with reasonable certainty from visual inspection of the ballot.
Even if we gave a mandatory construction to section 24A-15.1, however, the ballots questioned here nevertheless may be counted. The legislature anticipated that the automatic tabulating equipment would not be able to count certain valid ballots. Accordingly, it enacted section 24A-14 of the Election Code (Ill.Rev.Stat.1989, ch. 46, par. 24A-14), which states:
"If any ballot is damaged or defective so that it cannot properly be counted by the automatic tabulating equipment, a true duplicate copy shall be made of the damaged ballot in the presence of witnesses and substituted for the damaged ballot. Likewise, a duplicate ballot shall be made of a defective ballot which shall not include the invalid votes. All duplicate ballots shall be clearly labeled 'duplicate', shall bear a serial number which shall be registered on the damaged or defective ballot, and shall be counted in lieu of the damaged or defective ballot." (Ill.Rev.Stat.1989, ch. 46, par. 24A-14.)
Section 24A-14 clearly permits visual inspection and duplication of defective ballots to ensure that the voters' intent may be given effect. The appellee argues that section 24A-14 does not apply here, because partially punctured ballots may not be regarded as "defective" ballots. She claims that only those ballots which are rejected by the automatic tabulating equipment qualify as "defective" ballots. She argues that the ballots here were not so rejected by the equipment; they simply were not counted by such equipment. We are not persuaded by the appellee's argument that section 24A-14 applies only to ballots which are rejected by the automatic tabulating equipment.
There is no evidence in the record which supports the appellee's claim that the automatic tabulating equipment rejects certain ballots. In any event, section 24A-14 specifically refers to ballots which "cannot properly be counted by the automatic tabulating equipment," and not to ballots which are rejected by such equipment. Although the Election Code does not define the term "defective ballots," we conclude that ballots are "defective," within the meaning of section 24A-14, when votes on those ballots are not counted by the automatic tabulating equipment, even though visual inspection of the ballots clearly reflects the voters' intent to cast a *82 vote for one candidate or another. As stated, voters may do everything that the Election Code requires to mark their ballots, and yet still not cast votes which can be read by the automatic tabulating equipment. The defects may be attributable to improperly perforated paper or to the voters' inability to exert sufficient pressure on the ballots to completely dislodge the chads. Whatever the cause of the defects, section 24A-14 specifically authorizes hand duplication of such ballots. Visual inspection of partially punctured ballots is necessary and appropriate in an election contest to determine whether those ballots are defective. The court may then duplicate those ballots which are defective, so that they may be counted on the automatic tabulating equipment. Ill.Rev.Stat.1989, ch. 46, par. 24A-14.
The result we reach here is consistent with decisions of courts in other jurisdictions, which have permitted visual inspection and manual counting of punch card ballots that could not be read by electronic tabulating equipment. Although these decisions did not construe the provisions of our Election Code and thus have limited authoritative value here, they are relevant insofar as they demonstrate that courts have struggled to give effect to the intention of voters where that intention can be ascertained with reasonable certainty. Fischer v. Stout (Alaska 1987), 741 P.2d 217 (punch card ballots which were marked entirely with pen rather than punched could be counted, even though punch card machine was available at the time of the election, because ballots provided clear evidence of the voters' intent); Willis v. Thomas (Alaska 1979), 600 P.2d 1079 (where voter both circled and punched boxes next to candidates' names to indicate his intent, circling of boxes alone not a sufficient indication of voter intent); Hickel v. Thomas (Alaska 1978), 588 P.2d 273 (punch card ballots marked with pen or pencil instead of punched held valid); Escalante v. City of Hermosa Beach (1987), 195 Cal.App.3d 1009, 241 Cal.Rptr. 199 (held valid punch card ballots marked in pen rather than a punched-out chad, a ballot punched "no" with transparent tape on reverse side holding "yes" chad in place, and ballots with non-vote-signifying chads punched in addition to vote-signifying chads); Fair v. Hernandez (1981), 116 Cal.App.3d 868, 879-80, 172 Cal.Rptr. 379 (where voter fails to punch out number which corresponds to a candidate and instead punches out a number which is not assigned to any candidate ballot cannot be counted; but where voter punches out a number which is not assigned to any candidate, and also punches a number which corresponds to a candidate, the ballot must be counted); Wright v. Gettinger (Ind.1981), 428 N.E.2d 1212, 1225 (ballots with chads which were partially attached but were hanging underneath the ballot were valid, because the "hanging chads" indicated voters' intent); McCavitt v. Registrars of Voters (1982), 385 Mass. 833, 434 N.E.2d 620 (standard for hand count of punch card ballots is not limited to a determination of whether light flows through the chad; if intent of voters can be ascertained, it should be given effect); but cf. Rary v. Guess (1973), 129 Ga.App. 102, 198 S.E.2d 879 (where voter fails to properly use the vote recorder by punching out the chad with the instrument provided, voter has disfranchised himself with regard to that office); LeRay v. Mullican (La.App.1984), 456 So.2d 1038 (ballot marked with pencil rather than punched was void, because penciled checkmark was a distinguishing mark).
We also note that the House of Representatives Committee on Elections counted a punch card ballot in a general election contest between Ray Christensen and Gerald Weller, even though the automatic tabulating equipment could not count the ballot, because the chad was not completely dislodged. (Transcript of Proceedings of the House Committee on Elections 28-36 (March 27, 1987).) We do not, of course, regard the Committee's decision as persuasive evidence of the legislature's intent. Statements made by individual legislators after a statute is enacted do not accurately reflect the intent of the legislature when the statute was debated and enacted. (Morel v. Coronet Insurance Co. (1987), 117 Ill.2d 18, 24-25, 109 Ill.Dec. 157, 509 N.E.2d 996.) We simply note that the Committee's decision on one punch card ballot was consistent with the decision we reach here.
Conclusion
In sum, we uphold the trial court's determinations that: (1) uninitialled absentee ballots may be counted; (2) ballots without precinct numbers may be counted (insofar as the trial court's determination relates to ballots for which the sole irregularity complained of is the absence of a precinct number); (3) ballots which bear the wrong precinct designation may be counted; (4) ballots which were numbered by an election judge to correspond to a voter's application number may be counted; (5) ballots cast by voters who failed to sign their application form may be counted; and (6) the results of the recount, rather than the results on election night, govern in all precincts, including Maine township precinct 23.
We conclude, however, that the trial court improperly denied the appellant's motion to have the ballots on which votes could not be counted by the automatic tabulating equipment visually inspected. We also hold that the trial court improperly counted four ballots which bore the designation "Niles Township," in addition to not bearing a precinct number, since Niles township is outside the 55th Representative District. Because an equal number of these invalid "Niles Township" ballots was counted for each candidate, the trial court's determination that each candidate received 7,387 votes must be adjusted to reflect a loss of two votes for each candidate. Adjustment of the vote tallies results in a total of 7,385 votes for each candidate, but does not change the trial court's finding and judgment that the election resulted in a tie.
Having decided all of the issues raised by the parties, including the contention that partially punctured ballots should have been inspected and counted where proper, we determined that each candidate had an equal number of votes. We ordered the cause remanded to the trial court. This court directed the trial court to visually inspect each of the ballots not counted by the automatic tabulating equipment and to determine whether the voter's intent to cast a vote for either the appellant or the appellee could be ascertained. The trial court was further ordered to file a report of its findings with this court so we could review the trial court's determination.
The trial court's written order was filed with this court on September 18, 1990. According to the order, the trial court visually inspected a total of 27 ballots and determined that seven ballots showed the voters' intent to vote for Pullen and one ballot showed the voter's intent to vote for Mulligan. The voter's intent could not be ascertained from visual inspection of the remaining 19 ballots. Objections to the trial court's determinations as to particular ballots were filed by the appellee and the appellant. (The appellee objects in part to the trial court's judging one of these 19 ballots an overvote. It will not be necessary to address this, as any decision as to it would be without consequence to the election result.)
This court has reviewed the disputed ballots and the trial court's finding as to each ballot in light of these objections. The objection of the appellee that to be counted the chad should be fully punched out or that at least there should be a hanging chad on the back side of the ballot would set too rigid a standard for determining whether the voter intended to vote for the particular candidate. Many voters could be disfranchised without their fault if, for example, ballots with only perforations on the chad could not be regarded as indicating the voter's intent to vote. From our examination of the ballots, we consider that the procedures used by the trial court were not improper to ascertain whether the voter intended to vote for the appellant or the appellee or whether this could not be determined. The appellee's objection that the only workable way to ascertain the intent of the voter from a punch card ballot is to find that the chad has been removed, so that the machine can count it, is legally unconvincing. This is shown by our discussion above under "Partially Punctured Ballots." We need not consider the objections of the appellant in light of the disposition we make of this appeal.
The trial court determined that seven ballots reflect the voter's intent to vote for Pullen, one ballot reflects the voter's intent to vote for Mulligan and the remaining 19 ballots should be disregarded, because the voter's intent cannot reasonably be ascertained. Accordingly, the vote tallies for each candidate must be adjusted to reflect a gain of 7 votes for Pullen and a gain of 1 vote for Mulligan.
A summary of the legal votes is as follows. The total number of votes cast for Pullen as determined by the trial court was 7,387. Two votes must be subtracted from this total, to reflect the invalid "Niles Township" ballots counted for Pullen. Seven votes must be added to the tally, to include the seven ballots which reflect the voter's intent to vote for Pullen, but which were not counted because they did not register on the automatic tabulating equipment. Thus, a net total of 7,392 votes were cast for Pullen.
Mulligan's vote total, as determined by the trial court, was also 7,387. Two votes must be deducted from *87 this total to reflect the invalid "Niles Township" ballots counted for Mulligan. One vote must be added to the total to include the ballot which reflected the voter's intent to vote for Mulligan, but which was not counted because the ballot did not register on the automatic tabulating equipment. Thus, a net total of 7,386 votes were cast for Mulligan. Accordingly, the appellant, Penny Pullen, was elected by a majority of six votes, as shown below. The judgment of the circuit court of Cook County is affirmed in part and reversed in part. |
