Editor's note: This article has been revised from a previous version to include information concerning a new brief filed by State Rep. Deanne Mazzochi in response to the DuPage Clerk's petition to the Illinois Supreme Court.
Saying courts have no role in overseeing the counting of votes, DuPage County Clerk Jean Kaczmarek has asked the Illinois Supreme Court to overrule a DuPage County judge who ordered her office to tighten up how it is verifying mail-in ballots have been legally submitted and counted.
On Nov. 16, Kaczmarek, through her attorneys, filed an appeal directly to the state high court, seeking to remove a restraining order issued against her for allegedly lax ballot verification procedures that a DuPage County judge said could invite ballot fraud.
In the appeal, Kaczmarek’s lawyers reiterated their claims, which they presented to DuPage County Judge James Orel a day earlier, that the courts have no authority under Illinois law to oversee vote counting efforts, or ensure the election authorities counting ballots are following the law in how they are counting ballots.
Rather, the clerk asserted vote counting procedures can only be challenged after all of the votes are counted, and after the results of an election are certified by the election authorities who may be accused of not properly counting votes.
The petition to the Illinois Supreme Court comes on the heels of Judge Orel’s ruling in favor of arguments advanced by State Rep. Deanne Mazzochi, who is challenging Kaczmarek’s vote counting procedures.
In a response to Kaczmarek's petition filed with the Supreme Court, attorneys for Mazzochi said Kaczmarek's petition marks an attempt by the clerk to establish her office as somehow above the law.
"... The Clerk has no 'lawful authority' to violate Election Code, as written by the Legislature, signed by the Governor, and interpreted by the Courts," Mazzochi said in her response. "The Clerk is not the arbiter of what the law is."
Mazzochi, an Elmhurst Republican, is locked in an ultra-tight election contest with Democratic challenger Jenn Ladisch Douglass, also of Elmhurst, for a seat in the Illinois House of Representatives from the 45th District. According to the most recent update on Nov. 15, Douglass leads Mazzochi by 246 votes out of more than 42,000 votes counted so far in the race.
Under Illinois law, election officials are required to count all mail-in ballots received up to 14 days after Election Day, even if those ballots have no postmark or other independent verification that they were mailed by Election Day.
When counting mail-in ballots, Illinois law requires election judges to compare signatures on the ballots against voter signatures contained in official voter registration records.
If the signatures do not match, the ballot is presumed to be rejected, unless a registered voter can otherwise prove the ballot is authentic and was legally cast.
However, in her lawsuit, Mazzochi claims Kaczmarek’s election judges are not exclusively relying on voter registration records when verifying signatures on the ballots. Instead, Mazzochi says Kaczmarek’s election judges, with the assistance of Kaczmarek’s office personnel, are also verifying signatures on ballots against signatures on Vote By Mail applications, allegedly completed by the voter.
Mazzochi said she and members of her campaign team have personally witnessed numerous instances of such allegedly illegal ballot verification procedures during the counting of mail-in ballots.
In her lawsuit, filed Nov. 14, Mazzochi sought a court order directing Kaczmarek’s office to exclusively rely on voter registration records when counting ballots, as required by state law.
In both a motion to dismiss filed in DuPage County court and in her petition to the Illinois Supreme Court, Kaczmarek does not directly rebut Mazzochi’s claims concerning improper ballot verifications.
Rather, Kaczmarek asserts Mazzochi cannot sue, because her lawsuit is a “premature” election challenge.
The clerk claims Illinois election law and legal precedent should be read to forbid courts from stepping into the process of counting votes until after election authorities declare the count completed. Only then, Kaczmarek said, can candidates sue to challenge election results over possible fraud.
The judge directed Kaczmarek to verify signatures using voter registration records exclusively, as the law requires.
“The Election Code does not permit the use of a signature from a mail in ballot application to validate any mail-in ballot signature,” Orel wrote in his order.
“Use of the Vote by Mail ballot application to qualify signatures on the Vote by Mail ballot itself would be an obvious way to commit ballot fraud,” the judge said.
The ruling prompted Kaczmarek, who is a Democrat, to appeal directly to the Democrat-dominated Illinois Supreme Court for a quick resolution, bypassing the Illinois Second District Appellate Court altogether.
In her petition, Kaczmarek said Judge Orel’s order “impermissibly usurps the lawful authority of the County Clerk by assuming the role of a superior Illinois election official through judicial fiat.”
Allowing the judge’s order to stand would invite further challenges to the ballot counting process by candidates for office and other “political association … hoping that an Illinois Court will assume the role of an election official and will order the counting of votes in the manner they deem fit.”
In Mazzochi's response, the state lawmaker said Kaczmarek has mischaracterized the nature of her complaint. The lawsuit is not an "election contest," Mazzochi said. Rather, it is simply a request to the courts to order the clerk to follow the law, as written.
"In essence, the Clerk wants to conduct elections in violation of the Election Code," Mazzochi wrote in her response. "No other state or county agency receives the luxury of ignoring the law while carrying out 11 its duties, and certainly not for the time period when the need for compliance - here election season - is at its peak."
In a separate statement concerning Kaczmarek’s petition, Mazzochi called Kaczmarek’s arguments and her apparent decision to suspend the counting of votes “absurd.”
“What is unprecedented is a Clerk who ignores what the Legislature wrote into law, and what our Circuit Court said the law is, to insist that she alone knows best. The Circuit Court agreed that the law does not allow the Clerk to clear vote-by-mail ballots with a vote-by-mail application signature comparison,” Mazzochi said.
“The Clerk’s continued refusal to comply with the law and the Circuit Court’s order is sheer arrogance.”
Kaczmarek is represented in the action by attorneys Sean Conway, Patrick K. Bond and Mary E. Dickson, of the firm of Bond Dickson & Conway, of Wheaton.
Mazzochi is represented by attorneys Christopher Esbrook and Michael Kozlowski, of Esbrook P.C., of Chicago.