Do Absentee Ballot Application Have to Specify the Reason for Physical Incapacity ?
In People ex rel. Ciaccio v. Martin, 220 Ill. App. 3d 89, 580 N.E.2d 930, 162 Ill. Dec. 747 (1991), although 25 absentee ballot applicants failed to state a reason for their physical incapacity as the application required, the county clerk apparently ignored that failure and issued ballots nonetheless. Ciaccio, 220 Ill. App. 3d at 91. the petitioner argued that the court should not disenfranchise the voters since they were not at fault. Ciaccio, 220 Ill. App. 3d at 91.
The Ciaccio court disagreed, concluding that the language of section 19-3 was "mandatory and the ballots should not have been issued based on the incomplete applications." Ciaccio, 220 Ill. App. 3d at 91.
In this regard, the court stated that the "legislature intended that the procedures for obtaining and using an absentee ballot be scrupulously followed" to "enhance the integrity of the electoral process." Ciaccio, 220 Ill. App. 3d at 91.
Accordingly, the Ciaccio court concluded that the trial court properly deducted the ballots from the electoral count. Ciaccio, 220 Ill. App. 3d at 92.
In In re Purported Election of Bill Durkin, 299 Ill. App. 3d 192, 700 N.E.2d 1089, 233 Ill. Dec. 381 (1998), relied upon by both parties, the petitioner challenged 185 absentee ballots because the voters failed to state on their applications the reason for their incapacity. Durkin, 299 Ill. App. 3d at 194.
In addressing the issue, the Durkin court noted that one case had previously directly addressed the issue, citing Ciaccio.
Although the Durkin court agreed with the Ciaccio court's determination "that the requirement that a voter applying for an absentee ballot on the basis of physical incapacity must specify the reason for the physical incapacity on the application form is a mandatory requirement under the Election Code," the Durkin court nonetheless concluded that the circumstances present in Ciaccio were distinguishable from those in the case before it. Durkin, 299 Ill. App. 3d at 197.
Specifically, the appellate court agreed with the trial court's finding that, "unlike the absentee ballot applications used in Ciaccio, the absentee ballot applications used in Durkin did not indicate that the applicants should specify the reason for their physical incapacity." Durkin, 299 Ill. App. 3d at 197.
In this regard, the Durkin court found that the "the voters who completed the forms did nothing wrong in completing the incorrectly prepared forms," and, thus, their votes should not be disenfranchised. Durkin, 299 Ill. App. 3d at 197-98.
In addition, the Durkin court agreed with the trial court's finding that Ciaccio was distinguishable because in Ciaccio there were allegations of voter fraud, whereas in Durkin there were no such allegations. Durkin, 299 Ill. App. 3d at 198.
In this regard, the Durkin court stated as follows:
"We also note that the trial court stated that its research revealed that in Ciaccio the same person had written 24 of the 25 challenged absentee ballot applications in that case." Durkin, 299 Ill. App. 3d at 198.
Ultimately, the Durkin court concluded that the "mandatory requirements of section 19-3 are overcome by the equitable principle of disenfranchisement avoidance" in the case before it. Durkin, 299 Ill. App. 3d at 198.