Difranco v. Fallon

228 N.E.3d 410

2023 IL App (1st) 220785

Frank R. DIFRANCO, Petitioner-Appellant,

v.Patricia M. FALLON, the Illinois State Board of Elections, and Karen A. Yarbrough, Cook County Clerk, Respondents

(Patricia M. Fallon and Karen A. Yarbrough, Cook County Clerk, Respondents-Appellees).

No. 1-22-0785

Appellate Court of Illinois, First District, Fourth Division.

Filed October 5, 2023

Appeal from the Circuit Court of Cook County. No. 20 COEL 032, Honorable Patrick T. Stanton, Judge, presiding.

Kenneth A. Michaels Jr., of Bauch & Michaels, LLC, of Chicago, for appellant.

Steven M. Laduzinsky and Natalie K. Wilkins, of Laduzinsky & Associates P.C., and Michael J. Kasper, of Kasper & Nottage, P.C., both of Chicago, for appellees.

OPINION

JUSTICE MARTIN delivered the judgment of the court, with opinion.

¶ 1 Frank DiFranco appeals the circuit court’s orders granting the respondents’ motion for summary judgment and denying his motion for leave to file an amended petition in his election contest.

¶ 2 I. BACKGROUND

¶ 3 Following the November 3, 2020, general election, the Illinois State Board of Elections (ISBE) certified Patricia Fallon as elected to the Office of Circuit Court Judge for the 12th Judicial Subcircuit of Cook County to fill the vacancy created by the retirement of Judge Kay Hanlon. It was a close election. In the final canvass, Fallon received 82,976 votes and DiFranco, 82,474—a margin of 502 votes. In percentage terms, Fallon received 50.15% and DiFranco 49.85% of the vote.

¶ 4 ISBE certified Fallon as elected on December 4, 2020. She took the oath and assumed office on December 7, 2020, and continues to serve as an elected Cook County circuit court judge.

¶ 5 Having received votes within 5% of Fallon’s total, DiFranco petitioned for a discovery recount in 52 precincts—approximately one-fourth of the subcircuit—under section 22-9.1 of the Election Code (10 ILCS 5/22-9.1 (West 2018)).¹ The discovery recount was conducted on December 22 and 23, 2020. Thereafter, DiFranco filed the present election contest on December 31, 2020, naming Fallon, ISBE, and Karen Yarbrough, the Cook County clerk (Clerk), as respondents. The Clerk was the local election authority responsible for administering elections in suburban Cook County, including the 12th Judicial Subcircuit.

¶ 6 DiFranco’s verified petition alleged "significant mistakes and fraud [were] committed in the casting and counting of ballots" and "had the legal votes been properly counted," he would have been elected Judge of the 12th subcircuit. DiFranco made no specific allegations of fraud. Instead, the specific allegations in his petition amounted to four claims: (1) ballots were counted past the statutory time limit, (2) the number of vote-by-mail (VBM) ballots counted exceeded the number of VBM ballots requested by 18,423, (3) another 3628 VBM ballots lacking the required return envelope were improperly counted, and (4) the Clerk prevented DiFranco from fully observing the discovery recount. DiFranco requested a complete recount of all ballots cast in the 12th subcircuit for the November 3, 2020, election, an order declaring him elected, and other just relief.

¶ 7 The 2020 general election was unique. As the COVID-19 pandemic was at its height, the Illinois General Assembly enacted emergency legislation to facilitate voting by mail. See Pub. Act 101-642 (eff. June 16, 2020). Many voters chose to use that method to cast their ballots—71,103 in this race. Of those, over 62% voted for Fallon, while DiFranco won a comparable percentage of the votes cast in person on or before Election Day. Hence, DiFranco’s election contest focused on ballots cast by mail.

¶ 8 DiFranco’s missing envelopes claim relied on results he purported from the discovery recount. His petition set forth the number of VBM ballots counted and the number of VBM return envelopes his "watchers" reported that the Clerk produced for each of the 52 precincts included in the discovery recount. According to his tallies, of the 22,461 VBM ballots counted from those precincts, 3628 were missing a return envelope, or approximately 16%. DiFranco acknowledged that the ballots were separated from the return envelopes, making it impossible to identify which ballots lacked a corresponding return envelope. For the same reason, it was impossible to determine whether improperly counted votes were cast for Fallon or DiFranco. DiFranco proposed a proportionate reduction method to ascertain the effect of improperly counted votes. That is, since Fallon received 62.85% of the total VBM votes and DiFranco received 37.15%, the candidates’ vote totals should be reduced by the same percentages applied to the 3628 improperly counted votes. In other words, subtract 62.85% of those ballots (2280) from Fallon’s total and 37.15% from DiFranco’s (1348). By his method, in the 52 precincts of the discovery recount alone, Fallon would lose more votes than DiFranco by a margin that overcomes Fallon’s certified 502-vote win. Thus, DiFranco asserted the discovery recount revealed a reasonable probability that a recount of all the subcircuit’s precincts would change the result of the election.

¶ 9 The respondents moved to dismiss DiFranco’s petition. They argued that (1) the statutory two-week deadline is directory, not mandatory, and the Clerk was otherwise required to count ballots received before that date (see Pullen v. Mulligan, 138 Ill. 2d 21, 46, 149 Ill.Dec. 215, 561 N.E.2d 585 (1990) ("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.")), (2) the more VBM ballots counted than requested claim was not set forth with sufficiently specific allegations and relied on a directory provision, (3) the statutory requirement of a return envelope is directory, and (4) alleged improprieties in the discovery recount are irrelevant to whether a recount would likely change the result of the election. In addition, the respondents objected to DiFranco’s proposed method for apportioning improperly counted votes. Instead of applying the percentage of VBM votes each candidate received, the respondents argued that any apportionment should use the percentage of total votes each candidate received—50.15% and 49.85%. They contended DiFranco could not overcome his 502-vote deficit even if he could show ballots were improperly counted.

¶ 10 In response, DiFranco explained that his allegations regarding the discovery recount were provided only for background information and maintained that his other allegations were sufficient to state a cause of action. He likewise maintained that his apportionment method was appropriate.

¶ 11 The trial court dismissed the claim regarding ballots counted beyond the statutory time limit, finding that the limit was directory, not mandatory. However, the court found the statutory requirement for an application to request a VBM ballot (see 10 ILCS 5/19-2 (West 2018)) and the requirement to submit VBM ballots with the return envelope (see id. §§ 19-6, 19-8(g)) to be mandatory. Accordingly, the court found DiFranco’s claims of 18,423 excess ballots and 3628 ballots without envelopes were sufficient to demonstrate a reasonable likelihood that a recount would change the outcome of the election. Thus, the court denied the motion to dismiss as to those claims. The court observed that Illinois law did not provide a "bright line rule" for apportioning illegal votes. Since DiFranco’s proposed method was "technically and realistically plausible," the court accepted that method in its analysis, viewing the allegations in the light most favorable to the nonmoving party. The court interpreted DiFranco’s explanation that his discovery recount allegations were "background information" as a concession that this claim was not an independent basis to contest the election.

¶ 12 The respondents filed a motion for summary judgment in August 2021.² To refute the claim that more VBM ballots were counted than requested, the motion attached an affidavit from Edmund Michalowski, the Cook County deputy clerk for elections. Michalowski attested that a voter would only receive a VBM ballot if requested and only VBM ballots returned by verified voters were counted. Regarding DiFranco’s allegations of ballots counted without return envelopes, the respondents contended his claim was "factually incorrect and false." In support, the Clerk provided the court and DiFranco with hyperlinks and USB flash drives containing over 22,000 images of ballot return envelopes for the 52 precincts included in the discovery recount. The area for the voter’s signature was redacted on each of the digital images. According to the respondents, this production of images demonstrated that only 117 return envelopes were missing, approximately 0.5%—far fewer than the 3628 claimed by DiFranco and too few to justify a recount since it could not alter the result.³

¶ 13 Before responding to the motion for summary judgment, the court allowed DiFranco to depose Michalowski.⁴ Michalowski testified that the Clerk reviewed applications for VBM ballots to verify the requesting voter was registered to vote. Upon verification, a VBM ballot was mailed to each voter with a return envelope. Voters could return VBM ballots by mailing their ballot through the post office or depositing their ballot in a drop box. He explained that after the Clerk received VBM ballots in envelopes, they were run through a machine that scanned the images of the envelopes and collected information. Then, the ballots were reviewed by a three-judge panel to compare signatures with voter signatures on file and otherwise verify the voter was qualified. Michalowski believed some ballots were rejected for nonmatching signatures, but he did not know how many. If not rejected, the envelopes were run through a second machine to collect information to record that the voter submitted a ballot in...