DuPage County Clerk Jean Kaczmarek is continuing her efforts to get out from under a DuPage County judge’s order requiring her to validate mail-in ballots have been legally cast, by comparing voter signatures to voter registration records, as the law requires.
This week, Kaczmarek appealed the ruling of DuPage County Judge James Orel to the Illinois Third District Appellate Court, amid her continuing dispute with State Rep. Deanne Mazzochi, who has accused the clerk of violating state election law in how her office is counting mail-in votes.
Kaczmarek’s appeal came immediately after the Illinois Supreme Court rejected her request for a special supervisory order that would have tossed out Judge Orel’s ruling.
Mazzochi, an Elmhurst Republican, is locked in a tight election contest for a seat in the Illinois House of Representatives, representing the 45th District. She is challenged by Democrat Jenn Ladisch Douglass, also of Elmhurst.
According to the most recent vote tallies, Douglass leads in the contest by 364 votes, out of 43,594 ballots cast in the race – with all but 1,281 ballots cast in DuPage County.
Mazzochi, however, claims Kaczmarek has been breaking state law in how she has been counting the mail-in ballots that have give Douglass her lead.
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 response, Kaczmarek has argued Mazzochi can’t sue yet, because her lawsuit represents a “premature” to an election result that has not yet been certified.
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, however, sided with Mazzochi, granting a temporary restraining order directing Kaczmarek’s office to use only voter registration records to validate mail-in ballots, 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.”
Kaczmarek, however, has persisted in attempting to get the temporary restraining order lifted, rather than simply resume counting as directed by Judge Orel.
She first attempted to take her case straight to the Illinois Supreme Court, bypassing the appellate court level and asking the Democrat-majority court to toss out Judge Orel’s ruling.
After the high court rejected that petition, Kaczmarek appealed to the Third District Appellate Court.
In both appeals, Kaczmarek argues Judge Orel overstepped his authority in even hearing Mazzochi’s case, much less issuing the restraining order.
She asserts the law merely requires the clerk’s office to compare voters’ signatures against any other signature the clerk claims the voter has provided, not only those on official voter registration materials.
Kaczmarek asserts Judge Orel misinterpreted the law, and improperly claimed authority to step into an election controversy, which she said was an “unlawful intrusion into the province of the County Clerk in the conduct and administration of elections.”
Mazzochi stressed her lawsuit is not a challenge to election results. Rather, it is an action to require Kaczmarek to follow the law.
Therefore, Mazzochi said, neither she nor Judge Orel need to wait for Kaczmarek to finish counting the mail-in ballots before stepping in to force the clerk to abide by the law while counting votes.
Mazzochi noted that if the clerk is allowed to complete the count, using her alternate methods for verifying signatures, using sources other than official voter registration records, there would be no way for Mazzochi or any authority to decipher which ballots were improperly verified.
“Put simply, if the Circuit Court cannot order the Clerk to follow the mandates of the Election Code, then we may as well not have a Circuit Court or an Election Code,” Mazzochi argued.
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.