A state appeals court has jettisoned a restraining order that had been slapped on the DuPage County Clerk for allegedly violating the law in how her office was counting mail-in ballots in a tight election contest for a seat in the state House of Representatives.
In the ruling, the appellate justices said a DuPage County judge was wrong to conclude a court could step in to force election officials to follow the law while they are counting ballots. The appeals judges said courts have no role in the election process, unless candidates challenge election results after election officials declare an election contest over, even if candidates claim to have observed those election officials illegally counting ballots in real time.
On Dec. 2, a three-justice panel of the Illinois Third District Appellate Court vacated the temporary restraining order issued by DuPage County Judge James Orel against DuPage County Clerk Jean Kaczmarek.
The decision marked a win for Kaczmarek, who is a Democrat, in her court fight with Elmhurst Republican State Rep. Deanne Mazzochi over how Kaczmarek’s office has handled the verification and counting of mail-in votes in the contest for the seat from the 45th State House District.
According to results from the clerks of DuPage and Cook counties, Democrat Jenn Ladisch Douglass, also of Elmhurst, appears to have defeated Mazzochi by a tally of 21,960 votes to 21,596, a difference of only 364 votes out of 43,556 ballots counted in the contest.
Mazzochi has not conceded in the race.
Rather, before Kaczmarek finished counting ballots, Mazzochi filed suit in DuPage County Circuit Court, accusing Kaczmarek of illegally using sources other than official voter registration records to verify that mail-in ballots received after Election Day were legally cast and legitimate.
Those mail-in ballots proved decisive in the contest, as they allowed Douglass to erase Mazzochi’s Election Night lead and pull ahead.
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 personally witnessed numerous instances of such allegedly illegal ballot verification procedures during the counting of mail-in ballots.
In multiple court filings in response to the lawsuit, Kaczmarek has not denied Mazzochi’s allegations.
However, Kaczmarek has yet asserted her office operated within law, claiming 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.
But Kaczmarek more forcefully argued the law does not allow candidates, like Mazzochi, to sue at all to force her to follow the letter of the law while votes are still being counted. Rather, Kaczmarek argued, Mazzochi needed to wait until after Kaczmarek’s election judges finished counting ballots to sue to somehow overturn the results.
In DuPage County court, Judge Orel 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.”
He also denied Kaczmarek’s attempt to dismiss the lawsuit.
In that appeal, Kaczmarek reiterated her beliefs that election officials can operate without any concern about court oversight, until after the vote counting process has been completed.
Kaczmarek asserted Judge Orel misinterpreted the law, and overreached by improperly claiming 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 countered that reading the law in such a fashion would essentially allow election officials to operate lawlessly, if they so chose.
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 said in her brief to the Third District court.
The Third District justices, however, sided with Kaczmarek, concluding Judge Orel erred in finding his court could step into the dispute.
All three appellate justices are Democrats.
In the order, Peterson said prior Illinois court decisions have “well established that a court has no jurisdiction over an election contest unless a statute applies.”
In this case, they said, Mazzochi could not point to any law that would give Orel or any judge the ability to force Kaczmarek to verify signatures a particular way while ballots are being counted.”
They said under Illinois’ election laws, Mazzochi needed to wait to file suit. And the justices cared not a whit for Mazzochi’s assertions that she was merely trying to force the clerk to legally count ballots, and not challenging any actual votes.
They said Mazzochi’s argument stood as a “distinction without significance.”
“Mazzochi’s complaint seeks to challenge the way votes were counted by Kaczmarek and, by implication, the result of the election,” Peterson and his colleagues wrote. “This is an election contest and the Election Code’s provisions governing election contests apply.”
The appellate justices vacated the restraining order.
However, they said they were not yet ruling on Mazzochi’s broader claims of illegal ballot verification by Kaczmarek’s office.
“… We note that we do not make any judgment as to whether the trial court correctly concluded mail-in ballot signatures must be verified only against the voter’s registration record,” Peterson wrote. “We express no opinion on the merits of this issue. Instead, that issue may be decided once it is brought under the correct provisions of the Election Code.
“We acknowledge that the procedures set forth in the Election Code may be slower, more expensive, and less practical by not involving the courts in the first instance. However, this is how our legislature drafted the Election Code and we are bound to follow it.”
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.