The Illinois Supreme Court has rejected an attempt by the DuPage County Clerk to overturn a judge’s ruling requiring her to follow state election law, as written, when counting mail-in ballots, to ensure election judges are not counting fraudulent votes.
On Monday, Nov. 21, the state high court issued a short, unsigned order, denying the request from DuPage County Clerk Jean Kaczmarek for an order negating the ruling from DuPage County Judge James Orel. Judge Orel had ruled in favor of a Republican state representative in a dispute over the way the DuPage Clerk's office has been verifying mail-in ballots have been legally submitted by actual registered voters.
In the order, the Illinois Supreme Court justices stated they are not ruling on any of the merits of the legal claims presented by either Kaczmarek or State Rep. Deanne Mazocchi, R-Elmhurst.
But the justices also refused to step in, for now, in the court fight over how mail-in ballots are being counted in Mazzochi’s razor thin election contest against her Democratic rival for a seat in the Illinois House of Representatives.
The ruling from the Illinois Supreme Court came five days since Kaczmarek first appealed directly to the state high court.
That appeal, which bypassed the Illinois Second District Appellate Court altogether, came hot on the heels of Judge Orel’s ruling in favor of Mazzochi.
Mazzochi is seeking reelection to the Illinois House, to represent the 45h District. That district runs roughly north-south along the eastern DuPage County boundary, from Elmhurst on the north to Hinsdale on the south.
Mazzochi is challenged by Democrat Jenn Ladisch Douglass, also of Elmhurst.
As in many races, Mazzochi, the Republican, had emerged from Election Day, Nov. 8, with a lead over her Democratic rival. However, as in many races, Douglass, the Democratic nominee, closed the gap and eventually edged ahead of Mazzochi, as Kaczmarek’s office counted mail-in ballots.
According to the most recently updated tally, posted on Friday, Nov. 18, Douglass led Mazzochi by 246 votes out of 42,143 votes counted in the contest.
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.
To this point, Kaczmarek has not directly responded to Mazzochi’s claims concerning the language of the law, or about her office’s conduct in verifying and counting mail-in ballots.
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.
Judge Orel disagreed, saying he believed an order directing the clerk to follow the law when counting votes benefits both candidates, to ensure the vote has been properly counted and is free of fraud.
The judge directed Kaczmarek to verify signatures using voter registration records exclusively, as the law requires.
In his ruling, Judge Orel said he believed verifying ballots in the way Mazzochi claims Kaczmarek has been doing “would be an obvious way to commit ballot fraud.”
In appealing to the Supreme Court, Kaczmarek argued Orel had overstepped the bounds of the law “by assuming the role of a superior Illinois election official through judicial fiat.”
Mazzochi responded with a brief, asserting it is Kaczmarek that is attempting to act lawlessly.
Mazzochi said she is not challenging the election results, but is merely desiring a court order to force Kaczmarek to follow the law.
"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 its duties, and certainly not for the time period when the need for compliance - here election season - is at its peak."
The DuPage County Clerk’s office had halted the counting of ballots in the Mazzochi-Douglass contest, apparently pending the outcome of Kaczmarek’s appeal.
In a statement released Tuesday morning, Mazzochi said:
"Instead of accepting the clear ruling that she was wrong, the DuPage County Clerk arrogantly tried to bypass the normal appeals process for what she hoped would be a more favorable forum. That strategy just backfired.
"I am pleased that the Illinois Supreme Court rejected the Clerk’s motion for a supervisory order. Hopefully now the Clerk will finally realize that she must run elections according to what the law actually requires, and end her convoluted record of substandard practices, which the Circuit Court here has recognized would be an obvious pathway to vote-by-mail fraud," Mazzochi said.
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.