Calloway v. Chicago Board of Election Commissioners

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Appellate Court Date: 2020.10.30

06:00:58 -05'00'

Calloway v. Chicago Board of Election Commissioners,

2020 IL App (1st) 191603

Appellate Court WILLIAM CALLOWAY, Plaintiff-Appellant, v. THE CHICAGO

Caption BOARD OF ELECTION COMMISSIONERS, MARISEL A.

HERNANDEZ, in Her Official Capacity as Commissioner and Chair

of the Chicago Board of Election Commissioners; WILLIAM J.

KRESSE and JONATHAN T. SWAIN, in Their Official Capacities as

Commissioners of the Chicago Board of Election Commissioners;

LANCE GOUGH, in His Capacity as Executive Director of the

Chicago Board of Election Commissioners; and LESLIE HAIRSTON,

Defendants-Appellees.

District & No. First District, Fifth Division

No. 1-19-1603

Filed January 17, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 19-COEL-34; the

Review Hon. LaGuina Clay-Herron, Judge, presiding.

Judgment Affirmed.

Counsel on Joshua Burday, Matthew Topic, and Merrick Wayne, of Loevy &

Appeal Loevy, of Chicago, for appellant.

Ed Mullen, of Mullen Law Firm, of Chicago, and Michael Kreloff, of

Northbrook, for appellee Leslie Hairston.

Adam Lasker, of Lasker Law LLC, of Chicago, for other appellees.

Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the

court, with opinion.

Justices Connors and Rochford concurred in the judgment and

opinion.

OPINION

¶1 The plaintiff, William Calloway, appeals from an order of the circuit court of Cook County

dismissing his complaint contesting the results of the election for the office of alderman of the

fifth ward held on April 2, 2019. On appeal, the plaintiff argues that the circuit court erred in

dismissing his complaint because he sufficiently alleged that four precincts in the fifth ward

failed to comply with a mandatory provision of the Election Code. For the reasons that follow,

we affirm.

¶2 On April 2, 2019, the plaintiff and Leslie Hairston were candidates in the runoff election

for the office of alderman of the fifth ward. Preliminary results indicated that Hairston had won

the election by a margin of 170 votes.

¶3 On April 8, 2019, the plaintiff filed a complaint contesting the election pursuant to section

21-27 of the Revised Cities and Villages Act of 1941 (65 ILCS 20/21-27 (West 2018)) and

Article 23 of the Election Code (10 ILCS 5/23-1.1a et seq. (West 2018)). The complaint named

Hairston and the Board of Election Commissioners for the City of Chicago (BOE) as

defendants and alleged various irregularities as to the voting procedure and count. The plaintiff

stated that he was alleging “generalities subject to later amendment” because the relevant

statute required him to file the complaint within five days after the election. The plaintiff

sought, inter alia, a full recount of the vote in all precincts of the fifth ward and a determination

that he was the winner of the election.

¶4 On April 18, 2019, the BOE declared Hairston the winner by a margin of 176 votes. The

next day, on April 19, 2019, the plaintiff invoked his statutory right to a discovery recount of

up to 25% of the precincts. The plaintiff selected the following precincts: 3, 7, 9, 10, 11, 22,

27, 28, 33, and 35. On May 17, 2019, the plaintiff filed his amended complaint contesting the

election. Therein, he alleged, inter alia, that four precincts in the fifth ward—5, 10, 17, and

35—had a missing or incomplete election night certificate of results, also known as a “Form

80,” and thus failed to comply with sections 18-9 and 18-14 of the Election Code (id. §§ 18-9,

18-14). A Form 80 is completed by election judges for each precinct and “certifies” the

following information: the hours the polls were open; the number of paper ballots received

from the BOE; the number of provisional paper ballots received from the BOE; the number of

voters; the number of unused ballots; the number of spoiled or damaged ballots; the number of

ballots cast from public counters; the number of ballots cast from the “card activator”; and the

number of write-in candidates and votes. The plaintiff alleged that the four precincts’ failure

to complete a Form 80 means that “the results could have been tampered with” because the

results “cannot be verified or certified.” The plaintiff further alleged that completing an

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election night Form 80 is mandatory and that the remedy for failing to comply with mandatory

provisions of the Election Code is to void the election and require a new election in each of the

four affected precincts.

¶5 On May 23, 2019, Hairston filed a combined motion to dismiss the plaintiff’s amended

complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-

619.1 (West 2018)). 1 Hairston argued that the plaintiff failed to state a cause of action pursuant

to section 2-615 of the Code (id. § 2-615) for the following reasons: (1) the plaintiff made no

assertion that the missing or incomplete Form 80s actually impacted the outcome of the

election; (2) an incomplete or missing Form 80 does not impact the final proclamation because

there is a statutory procedure for the Board of Elections to follow to resolve issues when there

are discrepancies with the election night Form 80 and the ballots cast; (3) section 18-4 of the

Election Code does not provide for a new election as a remedy when election judges fail to

properly complete a Form 80; and (4) the remedy of a new election would disenfranchise a

substantial portion of the total vote because the allegations concerning Form 80 are

inapplicable to early votes, vote-by mail ballots, and provisional votes. Hairston also argued

that the plaintiff’s amended complaint should be dismissed pursuant to section 2-619(a)(9) of

the Code (id. § 2-619(a)(9)) because the plaintiff’s amended complaint is defeated by an

affirmative matter, namely, the discovery recount that confirmed the vote count for the 10

selected precincts, including one precinct alleged to have no Form 80.

¶6 The plaintiff responded to Hairston’s motion to dismiss, contending that he was not

required to allege that there was an actual discrepancy in the vote total because completing a

Form 80 is a mandatory requirement and is necessary to preserve the integrity of the election.

The plaintiff also maintained that Hairston failed to allege an affirmative defense and,

therefore, did not meet the standard for a motion to dismiss under section 2-619(a)(9).

¶7 On July 19, 2019, the circuit court dismissed the plaintiff’s amended complaint with

prejudice. In its oral pronouncement, the circuit court stated that failure to complete a Form 80

on election day was directory, not mandatory, because the General Assembly did not expressly

declare it to be mandatory or essential to the validity of the election. The circuit court further

stated that the plaintiff failed to allege “specific errors or particularities” to support his

contention that the failure to complete a Form 80 raises questions regarding the accuracy and

integrity of the election. The circuit court noted that the complaint did not “allege how the

election was affected at all.” The circuit court concluded that “the [complaint] is insufficient

under the law under 2-615 and it is defeated by affirmative matters under 2-619.” In its written

order, the circuit court stated that “[t]his is a final and appealable judgment order disposing of

all issues raised.” This appeal followed.

¶8 On appeal, the plaintiff contends that the circuit court erred in dismissing his amended

complaint because he sufficiently stated a claim contesting the election. Specifically, he

contends that his amended complaint sufficiently alleged that the plain language of section 18-

14 of the Election Code (10 ILCS 5/18-14 (West 2018)) makes completion of Form 80 by

election judges on election day mandatory and that, without a completed Form 80, the election

results could not be verified or certified, undermining the integrity of the election.

¶9 Hairston’s motion to dismiss was brought pursuant to section 2-619.1 of the Code, which

permits a party to move for dismissal under both sections 2-615 and 2-619 of the Code. 735

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The BOE adopted the arguments made in Hairston’s combined motion to dismiss.

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ILCS 5/2-619.1 (West 2018). A section 2-615 motion to dismiss attacks the legal sufficiency

of a complaint. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29. A motion brought pursuant to

section 2-619 admits the sufficiency of the complaint but asserts an affirmative matter that

avoids or defeats the claim. Id. We review a dismissal under either section 2-615 or section 2-

619 de novo. Id.

¶ 10 We turn first to Hairston’s motion to dismiss pursuant to section 2-615 of the Code. When

reviewing the sufficiency of the pleadings under a section 2-615 motion to dismiss, the circuit

court must look at the allegations of the complaint when viewed in a light most favorable to a

nonmoving party. 735 ILCS 5/2-615 (West 2018); Borowiec v. Gateway 2000, Inc., 209 Ill. 2d

376, 382 (2004). Under a section 2-615 motion, a circuit court should dismiss the cause of

action “only if it is clearly apparent that no set of facts can be proven which will entitle the

plaintiff to recovery.” Borowiec, 209 Ill. 2d at 382-83.

¶ 11 The Election Code is a comprehensive scheme that regulates the way elections are to be

carried out. Pullen v. Mulligan, 138 Ill. 2d 21, 46 (1990). Strict compliance with all applicable

provisions in the Election Code is not necessary, however, to sustain a particular ballot. Id.

Rather, our courts draw a distinction between violations of “mandatory” provisions and

violations of “directory” provisions. Id. Failure to comply with a mandatory provision renders

the affected ballots void, whereas technical violations of directory provisions do not affect the

validity of the affected ballots. Hester v. Kamykowski, 13 Ill. 2d 481, 487 (1958). Whether a

statute is mandatory or directory is a question of statutory construction, which we review

de novo. People v. Delvillar, 235 Ill. 2d 507, 517 (2009).

¶ 12 The plaintiff alleged that four precincts failed to complete a Form 80 as required by section

18-14 of the Election Code and that a new election should be held in those precincts. Section

18-14 states the following:

“At the nonpartisan and consolidated elections, the judges of election shall make a

tally sheet and [Form 80] for each political subdivision as to which candidates or public

questions are on the ballot at such election ***. The judges shall sign, seal in a marked

envelope and deliver them to the county clerk with the other certificates of results

herein required. ***

Within 2 days of delivery of complete returns of the consolidated and nonpartisan

elections, the board of election commissioners shall transmit an original, sealed tally

sheet and [Form 80] from each precinct in its jurisdiction in which candidates or public

questions of a political subdivision were on the ballot to the local election official of

such political subdivision where a local canvassing board is designated to canvass such

votes. Each local election official, within 24 hours of receipt of all of the tally sheets

and [Form 80s] for all precincts in which candidates or public questions of his political

subdivision were on the ballot, shall transmit such sealed tally sheets and [Form 80s]

to the canvassing board for that political subdivision.” 10 ILCS 5/18-14 (West 2018).

¶ 13 According to the plaintiff, the plain language of section 18-14 makes it mandatory for

election judges to fill out a Form 80 on election day, as evidenced by the General Assembly’s

use of the word “shall” in combination with a specific requirement regarding the timing for

when the Form 80 is to be transmitted to local election officials and the canvassing board

(“within 2 days of delivery” and “within 24 hours of receipt,” respectively). The plaintiff

further argues that, because completion of a Form 80 ensures the validity and integrity of the

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election results, the proper remedy for a precinct’s failure to complete one is a new election in

those precincts.

¶ 14 The defendants do not dispute that four precincts in the fifth ward either filed an incomplete

Form 80 or failed to complete one at all. Rather, the defendants contend that completion of a

Form 80 on election night is directory, not mandatory, because the General Assembly did not

expressly provide for a penalty for noncompliance. The defendants also maintain that the

plaintiff misunderstands the purpose behind the election Form 80 and how it relates to other

relevant provisions of the Election Code. Specifically, the defendants contend that the

plaintiff’s reliance on section 18-14 is misplaced, as sections 24B-15 and 24C-15 of the

Election Code are the relevant provisions because they provide the procedures to be followed

when, as here, votes are cast using optical scan paper ballot equipment or touch screen

equipment. See id. §§ 24B-15, 24C-15.

¶ 15 Section 24B-15 states that

“[t]he precinct return printed by the automatic Precinct Tabulation Optical Scan

Technology tabulating equipment shall include the number of ballots cast and votes

cast for each candidate and proposition and shall constitute the official return of each

precinct. In addition to the precinct return, the election authority shall provide the

number of applications for ballots in each precinct, the write-in votes, the total number

of ballots counted in each precinct for each political subdivision and district and the

number of registered voters in each precinct. However, the election authority shall

check the totals shown by the precinct return and, if there is an obvious discrepancy

regarding the total number of votes cast in any precinct, shall have the ballots for that

precinct retabulated to correct the return. *** In those election jurisdictions that use in-

precinct counting equipment, the [Form 80], which has been prepared by the judges of

election after the ballots have been tabulated, shall be the document used for the

canvass of votes for such precinct. Whenever a discrepancy exists during the canvass

of votes between the unofficial results and the [Form 80], or whenever a discrepancy

exists during the canvass of votes between the [Form 80] and the set of totals which

has been affixed to the [Form 80], the ballots for that precinct shall be retabulated to

correct the return.” Id. § 24B-15.

¶ 16 Similarly, section 24C-15 states that

“[t]he precinct return printed by the Direct Recording Electronic Voting System

tabulating equipment shall include the number of ballots cast and votes cast for each

candidate and public question and shall constitute the official return of each precinct.

In addition to the precinct return, the election authority shall provide the number of

applications for ballots in each precinct, the total number of ballots and vote by mail

ballots counted in each precinct for each political subdivision and district and the

number of registered voters in each precinct. However, the election authority shall

check the totals shown by the precinct return and, if there is an obvious discrepancy

regarding the total number of votes cast in any precinct, shall have the ballots for that

precinct audited to correct the return. *** The certificate of results, which has been

prepared and signed by the judges of election after the ballots have been tabulated, shall

be the document used for the canvass of votes for such precinct. Whenever a

discrepancy exists during the canvass of votes between the unofficial results and the

certificate of results, or whenever a discrepancy exists during the canvass of votes

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between the certificate of results and the set of totals reflected on the certificate of

results, the ballots for that precinct shall be audited to correct the return.” Id. § 24C-15.

¶ 17 The defendants argue that, although these provisions still instruct election judges to

complete a Form 80, the General Assembly expressly provided a statutory process whereby

the BOE, prior to the proclamation of the final certified election results, is to correct any

discrepancy discovered regarding a Form 80 during the postelection canvass by retabulating

the ballots and correcting the Form 80. Defendants, therefore, maintain that there is no statutory

basis for ordering a new election based on an incomplete or missing election night Form 80.

¶ 18 “There is no universal formula for distinguishing between mandatory and directory

provisions.” Pullen, 138 Ill. 2d at 46. Whether a particular statutory provision is mandatory or

directory is determined by the legislature’s intent, “which is ascertained by examining the

nature and object of the statute and the consequences which would result from any given

construction.” Id. (citing Carr v. Board of Education of Homewood-Flossmoor Community

High School District No. 233, 14 Ill. 2d 40, 44 (1958)). “The use of the word ‘shall’ is generally

regarded as mandatory when used in a statutory provision but can be construed as directory

depending on the legislative intent.” Brennan v. Illinois State Board of Elections, 336 Ill. App.

3d 749, 759 (2002). As our supreme court explained, a statute in the Election Code may

generally be given a mandatory construction if it “expressly states that failure to act in the

manner set out in the statute will void the ballot,” whereas a statute may generally be construed

as directory if it “simply prescribes the performance of certain acts in a specific manner, and

does not expressly state that compliance is essential to the validity of the ballot.” Pullen, 138

Ill. 2d at 46. As such, “[i]n construing statutory provisions regulating elections the courts

generally have tended to hold directory those requirements as to which the legislature has not

clearly indicated a contrary intention, particularly where such requirements do not contribute

substantially to the integrity of the election process.” (Internal quotation marks omitted.) Id. at

47.

¶ 19 Here, we conclude that the completion of a Form 80 by election judges on election day is

directory rather than mandatory. Although section 18-14 states that the election judges “shall”

complete a Form 80, the General Assembly failed to provide for a consequence in the event of

noncompliance, which is generally required for a provision to be deemed mandatory. See

Brennan, 336 Ill. App. 3d at 759-60 (finding an election provision that stated the BOE “shall

render its final judgment within 60 days of the date the complaint is filed” directory because

the provision did not expressly provide for a penalty if the BOE failed to comply with the 60-

day provision (internal quotation marks omitted)). Moreover, we agree with the defendants

that the procedures outlined in sections 24B-15 and 24C-15 of the Election Code are further

evidence that the General Assembly did not intend for an incomplete or missing Form 80 to

result in a new election. Put simply, the General Assembly could have stated that completing

a Form 80 is mandatory and failure to do so would void the impacted ballots; instead, it

empowered the BOE to retabulate the actual ballots cast to resolve any discrepancies prior to

the official proclamation. Therefore, the solution for when a precinct files an incomplete Form

80, or fails to complete one entirely, is for the BOE to follow the “obvious discrepancies”

procedures outlined in sections 24B-15 and 24C-15 and retabulate the ballots.

¶ 20 The plaintiff nevertheless argues that, even though the statute does not provide for a penalty

for noncompliance, the completion of a Form 80 by election judges on election day is

mandatory because it ensures the validity and integrity of the election. See Pullen, 138 Ill. 2d

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at 47 (“[I]n construing statutory provisions regulating elections the courts generally have

tended to hold directory those requirements as to which the legislature has not clearly indicated

a contrary intention, particularly where such requirements do not contribute substantially to

the integrity of the election process.” (Emphasis added and internal quotation marks omitted.)).

The thrust of the plaintiff’s argument in this regard is that, without a completed Form 80, “there

is an obvious opportunity for an unauthorized person to tamper with the election results” and

“a nefarious actor could choose not to count a ballot because of the candidate being voted for

on that ballot.” The defendants counter that the absence of a Form 80 does not create an

opportunity for tampering or nefarious conduct in an election with modern voting systems that

store results electronically in memory packs and where the BOE is empowered to audit,

correct, and retabulate results. We agree with the defendants.

¶ 21 “Invalidating an election is *** an extremely drastic measure, and we must distinguish

between garden-variety election irregularities and those errors that are so pervasive as to

undermine the integrity of the vote.” Andrews v. Powell, 365 Ill. App. 3d 513, 522-23 (2006)

(citing Graham v. Reid, 334 Ill. App. 3d 1017, 1024 (2002)). Here, the plaintiff has not alleged

sufficient facts to demonstrate how a lack of a Form 80 could allow for such “nefarious”

conduct, and the plaintiff certainly does not allege that such conduct occurred here. Though

we accept all well-pled facts when reviewing a section 2-615 motion to dismiss, a complaint

will not survive this analysis if it consists only of conclusory or speculative allegations. Time

Savers, Inc. v. La Salle Bank, N.A., 371 Ill. App. 3d 759, 767 (2007). We, therefore, conclude

that the plaintiff failed to allege sufficient facts to establish how completing a Form 80 on

election night ensures the validity and integrity of the election and, consequently, the circuit

court did not err in dismissing his complaint because the completion of a Form 80 is not

mandatory. See Foster v. Chicago Board of Election Commissioners, 176 Ill. App. 3d 776, 779

(1988) (“[P]leadings in an election contest charging violations of directory rather than

mandatory provisions of the [Election] Code, without sufficient allegations of fraud, are

subject to dismissal.”).

¶ 22 In sum, we affirm the circuit court’s dismissal of the plaintiff’s amended complaint

pursuant to section 2-615 of the Code because the plaintiff failed to sufficiently state a claim

contesting the April 2, 2019, election for the office of alderman of the fifth ward. As a result

of our disposition of this case, we need not address the arguments for dismissal pursuant to

section 2-619 of the Code.

¶ 23 Affirmed.

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