Calloway v. Chicago Board of Election Commissioners , 2020 IL App (1st) 191603 ( 2020 )

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Appellate Court Date: 2020.10.30
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Calloway v. Chicago Board of Election Commissioners,
2020 IL App (1st) 191603Appellate 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
1
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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