Illinois lawmakers have changed the state’s election laws to explicitly allow county clerks and other election authorities to verify mail-in ballots using a process a judge had ruled was illegal, as it “would be an obvious way to commit ballot fraud.”
Last week, the Democrat-dominated Illinois General Assembly granted final approval to the legislation known as House Bill 45.
The legislation makes a number of changes to the state Election Code and the state’s Circuit Courts Act to establish so-called judicial subcircuits and resident judgeships in county courts in and around Champaign and Winnebago counties.
From left: State Rep. Deanne Mazzochi and DuPage County Clerk Jean Kaczmarek
| Repmazzochi.com; Iaccr.net/dupagecountyclerk
However, one of the legislation's most signifcant changes may apply to the way in which state law allows county clerks and election authorities to count mail-in ballots.
The language was inserted through an amendment introduced by State Sen. Don Harmon, D-Oak Park, the Senate President and one of the two most powerful lawmakers in the state.
Previously, under the law, Illinois lawmakers had required vote counters to ensure mail-in ballots were genuinely cast by eligible registered voters by comparing the signatures on the returned ballots against the voter registration card, signed by the actual voter, and kept on file by the local election authority, whether the county clerk or a city election board.
That requirement made the vote-by-mail verifcation process essentially equivalent to the signature comparison election judges require for those who vote in person.
However, under the changes, county clerks and election officials will now be allowed, or perhaps even directed to compare signatures on mail-in ballots to the signature that had appeared on the application to request a mail-in ballot.
The change to the law specifically deletes language requiring the “election authority” to compare the signature on the mail-in ballot “with the signature on the official registration record card.”
Instead, the law directs the “election authority” to verify whether the ballot is authentic by comparing the ballot to “the applicant’s signature on file with the office of the election authority.”
In a different paragraph, the legislation changes the Election Code to specify that election judges “shall compare the voter’s signature on the certification envelope of that vote by mail ballot with the voter’s signature on the application” that had been verified by election officials at the time someone applied for a mail-in ballot.
The legislation does not include any language indicating the changes were intended to merely clarify the earlier intent of the lawmakers who had placed the language concerning the registration cards into the state Election Code in prior years.
In 2021, for instance, the Illinois General Assembly included such language when they changed the Illinois Health Care Right of Conscience Act. At that time, people throughout the state had filed lawsuits challenging Covid-19 vaccine mandates on the grounds the mandates violated their rights under the Right of Conscience Act.
In response to those lawsuits, and at the urging of Gov. JB Pritzker, the Democratic supermajority in the General Assembly passed legislation to explicitly state the Right of Conscience Act should not be interpreted to allow people to refuse vaccines mandated by the government. However, when they made the changes, lawmakers claimed the changes were not meant to actually change the law, but were made merely to “clarify” the original intent of the lawmakers who had passed the law.
However, no such language was included in HB45 regarding the changes to the Election Code.
The changes come amid a court fight over that very language, as a former Republican state lawmaker has sued the DuPage County Clerk, who is a Democrat, over the process by which the clerk counted mail-in ballots in a razor thin contest.
In the lawsuit, then-State Rep. Deanne Mazzochi, R-Elmhurst, accused DuPage County Clerk Jean Kaczmarek of violating the state law in how her office was counting mail-in ballots in her contest to retain her seat in the 45th State House District.
As has become routine since 2020, on Election Night, Mazzochi raced out to a lead over her opponent, Democrat Jenn Ladisch Douglass. However, as mail-in ballots were counted, Douglass erased Mazzochi’s lead and ultimately pulled 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 establishing they were mailed by Election Day, as the law requires.
With less than 370 votes separating Mazzochi and Douglass and ballots still allegedly being counted, Mazzochi filed suit in DuPage County Circuit Court, accusing Kaczmarek of illegally verifying signatures on the mail-in ballots using sources other than the official voter registration records, as the law required.
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. The lawsuit claimed Kaczmarek’s election judges, with the assistance of Kaczmarek’s staff, particularly relied on the signatures included on the vote-by-mail applications.
In multiple court filings responding to the lawsuit, Kaczmarek did not deny Mazzochi’s allegations.
Rather, Kaczmarek asserted the lawsuit itself was illegal, because no one under Illinois law is allowed to sue over the counting of ballots until after election officials say they’ve finished counting, and courts can’t intervene until after the counting is completed.
In court, DuPage County Judge James Orel ruled differently. He granted Mazzochi a temporary restraining order, directing Kaczmarek’s office to use only voter registration records to validate mail-in ballots, as the law required.
In his ruling, Orel particularly noted that allowing mail-in ballots to be verified using the same signature provided on the vote-by-mail application, as Kaczmarek did, “would be an obvious way to commit ballot fraud.”
Kaczmarek then appealed to the Illinois Third District Appellate Court, and reiterated her belief that election officials can count ballots however they believe the law allows without fear of court oversight, until after the counting process has been completed.
Kaczmarek argued Orel had overreached by improperly claiming authority to step into an election controversy, which she said was an “unlawful intrusion” into the election process.
Mazzochi countered that reading the law in such fashion would essentially allow election officials to operate lawlessly, if they so chose.
In their decision, however, the judges said Mazzochi could sue after the election was completed, and challenge the results on the grounds that Kaczmarek had broken the law by verifying ballots using sources other than the voter registration records, as the law required.
“We express no opinion on the merits of this issue,” wrote Third District Appellate Justice Lance Peterson. “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,” Peterson said.
Just weeks later, Harmon and his fellow Democrats who control the Illinois General Assembly changed the Election Code to specifically allow for the kinds of ballot verification procedures that Kaczmarek was accused of illegally conducting.
Mazzochi’s lawsuit remains pending in DuPage County court.