Pullen v. Mulligan (138 Ill. 2d 21, 1990)

JUSTICE WARD

delivered the opinion of the court:

This appeal arises out of an election contest which the appellant, Penny Pullen, filed pursuant to section 7— 63 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 63). A primary election was held on March 20, 1990, to determine the Republican nominee for the office of Representative in the General Assembly for the 55th Representative District. Rosemary Mulligan, the appellee here, was declared elected as the nominee and so certified by the State Board of Elections on April 9, 1990, as having received a majority of the votes cast, 7,431, for such office. Penny Pullen, the appellant here, was certified by the State Board of Elections as having received the second highest number of votes cast, 7,400, for such office. Pullen and Mulligan each filed a petition for a discovery recount, pursuant to section 22 — 9.1 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 22 — 9.1).

On April 19, 1990, 10 days after the State Board certified Mulligan as the Republican candidate, Pullen filed a “Petition of Election Contest” in the circuit court of Cook County, naming Mulligan as the respondent. The petition alleged various irregularities as to the voting procedure and count and asked the court to declare Pullen the winner of the election. Mulligan filed responsive pleadings, including a motion to dismiss the petition and a counterclaim alleging certain irregularities in tabulation. The motion to dismiss alleged that the petition had not been filed within the statutory time limit for filing such petitions (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 63) and challenged the jurisdiction of the trial court to hear the contest. The trial court denied the motion to dismiss, and commenced trial on the issue of whether Pullen could demonstrate a reasonable likelihood, that a recount would change the results of the election. After reviewing the results of a discovery recount and hearing evidence and the arguments of the parties, the trial court ordered a recount of all the Republican ballots cast in the election.

After the recount, each of the parties filed a number of motions urging the court to consider certain categories of ballots and to disregard other categories of ballots, in determining the result of the recount. After hearing evidence and arguments on these motions, the trial court entered an order specifying which categories of ballots would be considered in the recount. After entering this order, the court determined that the recount resulted in a net gain of 1 vote for Pullen and a loss of 30 votes for Mulligan. The trial court then determined that each candidate had received 7,387 votes, producing a tie vote. The trial court then directed the State Board of Elections to conduct a lottery pursuant to section 7— 59 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 59), to determine the nominee. A lottery by coin flip was held on July 18, 1990, and resulted in Mulligan’s favor. Accordingly, the trial judge entered an order declaring Mulligan the winner of the primary election. Pullen appealed and Mulligan cross-appealed certain rulings in Pullen’s favor. We allowed Pullen’s petition for leave to appeal directly to this court (107 Ill. 2d R. 302(b)).

We first consider whether Pullen timely filed her petition to contest the primary election. Courts have no inherent power to hear election contests, but may do so only when authorized by statute and in the manner dictated by statute. (In re Contest of Election for Governor (1983), 93 Ill. 2d 463; Young v. Mikva (1977), 66 Ill. 2d 579.) Section 7 — 63 of the Election Code (Ill. Rev. Stat., 1989, ch. 46, par. 7 — 63) contains the enabling language and procedural requirements for an action challenging a candidate’s nomination in a primary election. That section provides:

“Any candidate whose name appears upon the primary ballot of any political party may contest the election of the candidate or candidates nominated for the office for which he or she was a candidate by his or her political party, *** by filing with the clerk of the circuit court a petition in writing, setting forth the grounds of contest, which petition shall be verified by the affidavit of the petitioner or other person, and which petition shall be filed within 10 days after the completion of the canvass of the returns by the canvassing board making the final canvass of returns. The contestant shall also file with that canvassing board (and if for the nomination for an office, certified tabulated statements of the returns of which are to be filed with the State Board of Elections, also with the county canvassing board), a notice of the pendency of the contest.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 63.)

Failure to timely file an election contest prohibits the court from proceeding with the contest. Patterson v. Crowe (1944), 385 Ill. 514; Orbach, v. Axelrod (1981), 100 Ill. App. 3d 973.

Here we must consider whether the trial court correctly determined that Pullen’s election contest petition was filed within 10 days after the completion of the canvass by the canvassing board making “the final canvass of returns.” (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 63.) The appellant, Penny Pullen, argues that the State Board of Elections made the final canvass of returns on April 9, 1990. She argues that her petition was timely filed on April 19, 1990, 10 days after the State Board made its canvass of the returns. The appellee, Rosemary Mulligan, argues that the canvassing board making the final canvass of returns in this case was the Cook County Canvassing Board (County Canvassing Board), which completed its canvass on March 23, 1990. She argues that the petition was not timely filed because it was not filed within 10 days after the County Canvassing Board canvassed the returns. Accordingly, the specific issue which we must address here is whether the Cook County Canvassing Board or the State Board of Elections was the canvassing board making “the final canvass of returns” for the office in question.

A general overview of the relevant provisions of the Election Code is helpful in addressing this issue. The Election Code codifies the laws governing primary and general elections in this State. Article 7 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 1 et seq.) regulates the primary election process. In primary elections candidates compete for nomination as their party’s candidate for State, congressional, judicial, city, county, village, municipal district, township, and other governmental offices. Precinct, township, ward and State central committeemen are also elected in primary elections, as well as delegates to national nominating conventions. Article 7 specifies the time for holding primary elections, the qualifications and registration of persons who vote in primary elections, nomination of candidates who run in primary elections, procedural aspects of the primary election, and the procedures governing post-election contests.

Article 8 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 8 — 1 et seq.) is similar to article 7 in many respects, except that article 7 regulates the nomination and election of candidates for all elective offices considered in the primary, while article 8 specifically regulates the nomination and election of candidates for the General Assembly. The first 14 sections of article 8 specify the dates on which primary elections for legislative candidates shall be held, how petitions for nominations of legislative candidates may be filed, and generally describe the pre-election procedures for primary elections in which candidates for legislative offices are chosen. Article 8 does not, however, specifically delineate how primary elections involving legislative candidates shall be conducted, nor does it delineate the procedures for contesting the results of such primary elections. Section 15 of article 8 states that, except as article 8 expressly provides otherwise, article 7 “shall, so far as the same may be applicable, apply to and govern primary elections and contests thereof held under the provisions of this Article 8.” (Ill. Rev. Stat. 1989, ch. 46, par. 8-15.) Section 8-15 also states:

“The returns of such primary [in which candidates for legislative offices are nominated] shall be made to the county clerk or board of election commissioners as the case maybe ***.

Tabulated statements of the returns of the primary for the nomination of candidates for legislative offices shall be made to the State Board of Elections, canvassed by the Board, proclamation of the result thereof made, and certificates of nomination issued, as in the case of other tabulated statements of returns made to the State Board of Elections, and the election of any person nominated may be contested by filing with the clerk of the circuit court a petition in writing and filing notice in writing with the proper canvassing boards as required by Article 7 hereof.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 46, par. 8 — 15.

Pullen points out that section 8 — 15 specifically requires the State Board to canvass the tabulated statement of returns which it receives from the County Canvassing Board before proclaiming the result of the primary election. She argues that section 8 — 15 is consistent with provisions in article 7 which delineate how the returns in primary elections in which candidates for legislative offices are nominated shall be canvassed.

Section 7 — 56 specifies the manner in which returns shall be canvassed in primary elections.' The first sentence of section 7 — 56(5) provides:

“The officers who are charged by law with the duty of canvassing returns of general elections made to the county clerk, shall also open and canvass the returns of a primary made to such county clerk.” (Ill. Rev. Stat. 1989, ch. 46, par. 7-56(5).)

Section 22 — 1 of the Election Code identifies the officers who are charged with the duty of canvassing returns of general elections. That section states:

“Within 7 days after the close of the election at which candidates for offices hereinafter named in this Section are voted upon, the county clerks of the respective counties, with the assistance of the chairmen of the county central committees of the Republican and Democratic parties of the county, shall open the returns and make abstracts of the votes on a separate sheet for each of the following: * * *

H. For Senators and Representatives to the General Assembly.” (Ill. Rev. Stat. 1989, ch. 46, par. 22 — 1.)

Reading section 7 — 56(5) and section 22 — 1 together, it is clear that the County Canvassing Board, which is responsible for canvassing the returns of general elections in which candidates for Representatives to the General Assembly are elected, is also responsible for canvassing such returns in primary elections. Section 7 — 56(5) outlines what the County Canvassing Board must do after it completes the canvass of returns. That section provides:

“Upon the completion of the canvass of the returns by the county canvassing board, said canvassing board shall make a tabulated statement of the returns for each political party separately, stating *** the total number of votes cast in said county for each candidate for nomination by said party ***. Within two (2) days after the completion of said canvass by said canvassing board the county clerk shall mail to the State Board of Elections a certified copy of such tabulated statement of returns. *** [S]aid officers shall also determine and set down as to each precinct the number of ballots voted by the primary electors of each party at the primary.” Ill. Rev. Stat. 1989, ch. 46, par. 7 — 56(5).

The appellee, Mulligan, argues that, under section 7— 56(5), the canvassing process is completed once the County Canvassing Board canvasses the returns and sends a certified tabulated statement of returns to the State Board of Elections. She argues that, once the County Canvassing Board sends a certified tabulated statement of returns to the State Board, the State Board’s only function is to proclaim the result. She argues that in the primary election at issue here, the County Canvassing Board was the only board which canvassed the returns and, thus, was the canvassing board which conducted “the final canvass of returns” within the meaning of section 7 — 63.

The appellant, Pullen, points out, however, that section 7 — 56(6) of the Election Code specifies that the State Board must canvass the certified tabulated statement of returns which it receives from the County Canvassing Board. Section 7 — 56(6) states:

“In the case of the nomination of candidates for offices, *** certified tabulated statement of returns for which are filed with the State Board of Elections, said returns shall be canvassed by the board.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 56(6).)

Pullen argues that section 7 — 56(6) is consistent with section 8 — 15, which also states that the State Board of Elections shall canvass the certified tabulated statements of returns which are filed with the State Board.

Mulligan concedes that section 8 — 15 and section 7— 56(6) require the State Board to canvass tabulated statements of returns. She argues, however, that the State Board did not, in fact, act as a canvassing body in this instance. Because the 55th Representative District is solely within suburban Cook County, she argues that the votes cast in that race are canvassed solely by the Cook County Canvassing Board, and that the State Board’s only duty was to proclaim Mulligan the winner after it received a tabulated statement of returns from the Cook County Canvassing Board. As authority for her argument, Mulligan cites the opinion of the presiding judge of the county division of the circuit court of Cook County in McDunn v. Williams (Cir. Ct. Cook County), Docket No. 90 — CO—116.

In McDunn v. Williams, the petitioner, Susan McDunn, brought an action to contest the primary election of James Williams, who was declared the Democratic nominee for the office of judge of the circuit court, Cook County Judicial Circuit. The petitioner in the McDunn case, as in this case, filed her election contest petition 10 days after the State Board of Elections certified Williams as the Democratic nominee for the judicial office. The trial court dismissed the petition as untimely, holding that it was not filed within 10 days after the completion of the canvass by the canvassing board making “the final canvass of returns,” as required by section 7 — 63 of the Election Code.

In its memorandum opinion dismissing the petition in McDunn v. Williams, the trial court explained that only voters residing in the City of Chicago voted in the particular race at issue. The court determined that, under section 7 — 56(7) of the Election Code, the board of election commissioners for the City of Chicago was responsible for canvassing the returns of the judicial office in question. That section provides:

“Where in cities or villages which have a board of election commissioners, the returns of a primary are made to such board of election commissioners, said return shall be canvassed by such board, and, excepting in the case of the nomination for any municipal office, tabulated statements of the returns of such primary shall be made to the county clerk.” (Ill. Rev. Stat. 1989, ch. 46, par. 7-56(7).)

The trial court observed that, although the Election Code did not define the term “canvass,” Black’s Law Dictionary defined that term as “the act of examining and counting the returns of votes cast at a public election to determine authenticity.” (As we shall point out, application of such a limited definition of canvass is simplistic in interpreting the significance of the term “canvass” in the statutory scheme here.) The court then concluded that, because all votes cast in the primary for the office at issue were cast in Chicago, the Chicago board of election commissioners was the only canvassing board which actually examined and counted the votes for the office in question. The court held that the Chicago board of election commissioners was, therefore, the “final canvassing board” within the meaning of section 7 — 63 of the Election Code.

The court determined that the State Board of Elections did not examine and count the returns, but simply proclaimed and certified the result of the election. The court concluded that the State Board’s function was entirely different from that performed by the “final canvassing board” which “has the responsibility of counting the votes.” The trial court determined that the State Board of Elections acts as the final canvassing board only in elections for offices which encompass more than one county, since, in such elections, the State Board must count the votes on the statements of returns received from various county canvassing boards in order to determine the outcome of the election.

The opinion in the McDunn case cannot be viewed as authority here, however, because it failed to consider the State Board’s statutory duty to canvass primary election returns. (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 56(6).) Instead, it adopted a simplistic definition of the term “canvass” and determined that only those boards which examine and count the returns are canvassing boards within the meaning of section 7 — 63 of the Election Code. Applying that definition, the trial court in the McDunn case concluded that the Chicago board of election commissioners was the only body that canvassed the returns for the office in question and, thus, was the board conducting the final canvass of returns.

The court in McDunn v. Williams found the appellate court’s decision in Orbach v. Axelrod (1981), 100 Ill. App. 3d 973, controlling. Mulligan likewise cites Orbach as authority for her argument that the County Canvassing Board was the final canvassing board. Orbach, however, did not consider or decide which canvassing board conducted “the final canvass of returns” within the meaning of section 7 — 63. Rather, the issue in that case was whether the petitioner was required to file his election contest petition under the 10-day time limit specified in section 7 — 63, which pertains to election contests in primary elections, or under the 30-day time limit set out in section 23 — 20 of the Election Code, which pertains to election contests in general elections. The appellate court determined that the provisions of section 7— 63 applied. Accordingly, the court dismissed as untimely the election contest petition which Orbach filed 28 days after the board of election commissioners declared Axelrod elected as the Democratic ward committeeman for Chicago’s 46th Ward.

Moreover, in Orbach, the Chicago board of election commissioners was the only, and thus the final, canvassing board. Orbach was an election contest challenging the primary election of a candidate to the office of ward committeeman. The Chicago board of election commissioners was required under section 7 — 56(7) of the Election Code to canvass the returns of the primary election of ward committeemen and to send a tabulated statement of returns from such election to the county clerk. Unlike the primary election at issue here, however, the Election Code does not require the Cook County Canvassing Board to canvass the tabulated statement of returns for the office of ward committeeman which the Chicago board of election commissioners sends to the county clerk. See Ill. Rev. Stat. 1989, ch. 46, pars. 7— 56(5), 22-1.

The State Board of Elections likewise had no statutory duty to canvass the returns of the election at issue in Orbaeh. Section 7 — 56(6) specifies that “returns shall be canvassed” by the State Board of Elections only “[i]n the case of the nomination of candidates for offices, certified tabulated statement of returns for which are filed with the State Board of Elections.” Section 7 — 56(5) specifically states that tabulated statements of returns of votes cast for the office of ward committeeman shall not be certified to the State Board of Elections. Thus, neither the County Canvassing Board nor the State Board of Elections was required by statute to canvass the returns at issue in Orbaeh. Because the board of election commissioners was the only canvassing board required by statute to canvass the election returns for ward committeemen, it was the board conducting “the final canvass of returns” within the meaning of section 7 — 63. Accordingly, the 10-day period for filing an election contest began after the board of election commissioners performed its canvass.

Orbaeh cannot be viewed as controlling authority in circumstances where the State Board of Elections is required by statute to canvass election returns. Here, sections 7 — 56(5) and 22 — 1 of the Election Code, construed together, require the Cook County Canvassing Board to canvass the primary election returns for the Republican candidate for the office of Representative to the General Assembly for the 55th Representative District. (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 56(5).) Under section 7 — 56(5) of the Election Code, the county clerk has a duty to file a certified copy of the tabulated statement of returns prepared by the County Canvassing Board for that office with the State Board of Elections. (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 56(5).) Section 7 — 56(6) of the Election Code (111. Rev. Stat. 1989, ch. 46, par. 7 — 56(6)) imposes a duty upon the State Board of Elections to canvass any certified tabulated statement of returns which it receives from the county clerk.

Mulligan nevertheless argues that the Cook County Canvassing Board was the only board which canvassed the returns in question. She argues that the 55th Representative District lies entirely within Cook County and that the Cook County Canvassing Board was the only board which examined and counted the returns. She argues that the County Canvassing Board therefore conducted the final canvass of returns within the meaning of section 7 — 63. She argues that the State Board did not perform any canvassing function because it received a tabulated statement of returns from only one county canvassing board, and neither counted nor tallied any votes. She claims that the State Board’s only function was to certify the result of the election.

As support for this argument, Mulligan cites section 7 — 58 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 58), which requires each canvassing board, upon completion of its canvass of the returns, to make and transmit to the State Board of Elections a proclamation of the results of the primary. Mulligan argues that the County Canvassing Board must be the board conducting the final canvass of returns because it has authority to proclaim the results of the primary election. She argues that the State Board’s only function is to certify the results of the election.

Analysis of section 7 — 60 of the Election Code demonstrates, however, that the proclamation of the State Board of Elections, rather than that of the County Canvassing Board, is determinative. Section 7 — 60 provides:

“Not less than 67 days before the date of the general election, the State Board of Elections shall certify to the county clerks the names of each of the candidates who have been nominated as shown by the proclamation of the State Board of Elections as a canvassing board *** and direct the election authority to place upon the official ballot for the general election the names of such candidates ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 46, par. 7-60.)

The proclamation of the County Canvassing Board is determinative only for those offices for which tabulated statements of returns are not filed with the State Board of Elections (e.g., precinct, township and ward committeemen). In such cases, the County Canvassing Board’s proclamation is determinative because the State Board is not required by statute to canvass the election returns for such offices. See Ill. Rev. Stat. 1989, ch. 46, pars. 7-56(5), 7-58, 7-60.

Mulligan also argues that the decision in Young v. Washington (1984), 127 Ill. App. 3d 1094, supports her position that the State Board of Elections simply proclaims the result of the election. Young involved an election contest between candidates for the Democratic party nomination for the office of Representative in the General Assembly for the 24th Representative District. The 24th Representative District is wholly within the City of Chicago, in Cook County. Thus, in Young, the Chicago board of election commissioners was the board which initially canvassed the returns received from each precinct. Mulligan notes that the petitioner in Young filed the election contest petition seven days before the State Board issued its proclamation. In Young, however, both the majority and the dissenting opinions calculated the 10-day period specified in section 7 — 63 for filing an election contest petition as running from the date on which the State Board of Elections proclaimed the winner of the election. (Young, 127 Ill. App. 3d at 1095, 1098.) Thus, the Young opinion actually supports Pullen’s claim that the 10-day filing period specified in section 7 — 63 began after the State Board canvassed the returns.

Mulligan finally argues that this court should construe the phrase “canvassing board making the final canvass of returns” in section 7 — 63 as referring to the canvassing board which “examines and counts” the returns because such a construction would promote prompt resolution of primary election contests. It is true that adopting Mulligan’s definition of “canvass” might expedite the contest procedure, by requiring the party contesting the election to file his or her petition earlier. An election contest proceeding, however, is instituted by one who claims to have been elected against one who has been declared elected, and therefore cannot proceed until it is known who has been declared elected. In the case of candidates for legislative offices, it is not until the canvass is made by the State Board of Elections that the result can be officially known. Moreover, to adopt Mulligan’s definition of canvass would require us to ignore the clear language of sections 7 — 56(6) and 8 — 15 of the Election Code, which state that the State Board of Elections shall canvass the certified tabulated statements of returns which it receives from the County Canvassing Board.

We cannot ignore the fact that the County Canvassing Board did not actually “count” the votes in the election here. After the polls closed, the election judges in each precinct entered the ballots into automatic tabulating equipment, which counted the ballots and recorded the votes for each candidate. The automatic tabulating equipment then generated a precinct return, which was certified by the judges of election and sent to the county clerk as the official returns. (See Ill. Rev. Stat. 1989, ch. 46, par. 24A — 10.1.) Thus, the votes were “counted” in each precinct. The County Canvassing Board simply opened these precinct returns and tabulated the results.

We consider that Mulligan adopts too restricted a construction of the term “canvass.” Webster’s dictionary defines the term “canvass” to mean “to examine in detail: subject to scrutiny or investigation; specif: to examine (votes) officially for authenticity.” (Webster’s Third New International Dictionary 329 (1986).) Applying this definition of the term “canvass,” it is clear that both the County Canvassing Board and the State Board of Elections canvassed the returns of the primary election at issue here. The County Canvassing Board examined the returns it received from each precinct and prepared a tabulated statement of returns stating the number of votes cast for Mulligan and Pullen individually and the total number of ballots voted for the Republican party in the primary. This tabulated statement of returns was then certified to the State Board of Elections. In the statutory electoral scheme, it is the function of the State Board then to examine or canvass this tabulated statement of returns before proclaiming the results of the election. Had the certified tabulated statement of return contained an obvious error, such as indicating more votes cast for the candidates than the total number of ballots voted, the State Board certainly would have investigated the matter before it proclaimed one candidate elected. Neither canvass is any more a canvass than the other. Under the clear language of the statute, the State Board of Elections is the canvassing board which makes the final canvass of the returns. There is nothing in the statute demanding a different construction, and this view of it renders the Election Code, as a whole, consistent and harmonious, while to hold otherwise must lead to uncertainty and confusion. Accordingly, we hold that the trial court properly denied Mulligan’s motion to dismiss the election contest petition as untimely.

We next consider whether the trial court should have counted certain contested ballots in determining which candidate was elected as the Republican nominee for Representative of the 55th Representative District. Although we will consider each of the seven categories of contested ballots separately, a brief discussion of the general principles applicable to all such challenges is appropriate. The Election Code is a comprehensive scheme which regulates the manner in which elections shall be carried out. Strict compliance with all applicable provisions in the Election Code is not necessary, however, to sustain a particular ballot. Rather, our courts draw a distinction between violations of “mandatory” provisions and violations of “directory” provisions. Failure to comply with a mandatory provision renders the affected ballots void, wheréas technical violations of directory provisions do not affect the validity of the affected ballots. Hester v. Kamykowski (1958), 13 Ill. 2d 481.

There is no universal formula for distinguishing between mandatory and directory provisions. Rather, whether a particular statutory provision is mandatory or directory depends upon the intent of the legislature, which is ascertained by examining the nature and object of the statute and the consequences which would result from any given construction. (Carr v. Board of Education (1958), 14 Ill. 2d 40, 44.) Of course, the language of the statute is often the most reliable evidence of the legislature’s intent. Thus, where a statute, in prescribing the duties of the election officials, expressly states that failure to act in the manner set out in the statute will void the ballot, that statute will generally be given a mandatory construction. However, if the statute 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, then the statute generally will be given a directory construction. (Carr v. Board of Education (1958), 14 Ill. 2d 40, 44; Hester v. Kamykowski (1958), 13 Ill. 2d 481, 485; People ex rel. Cant v. Crossley (1913), 261 Ill. 78, 102; see 2A A. Singer, Sutherland on Statutory Construction §57.08, at 658 (Sands 4th ed. 1984).) Accordingly, as the court stated in Craig v. Peterson (1968), 39 Ill. 2d 191, 196:

“[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.”

We do not mean to suggest, of course, that election officials may simply ignore directory provisions of the Election Code. All of the provisions of the Election Code are mandatory in the sense that election officials are obligated to comply with their terms. It does not follow, however, that every failure to comply should invalidate the ballot in question. Literal compliance "with directory provisions will not be required if it appears that the spirit of the law has not been violated and the result of the election has been fairly ascertained. (Hester v. Kamykowski (1958), 13 Ill. 2d 481, 485; People ex rel. Woods v. Green (1915), 265 Ill. 39.) Applying the foregoing principles, we consider the particular challenges which the parties raise here.

1. Uninitialled Absentee Ballots

We first consider whether the trial court erred in counting absentee ballots which did not contain the initials of an election judge. The parties stipulated at trial that 27 in-precinct ballots and 55 absentee ballots did not contain the initials of an election judge. The parties agreed at trial that the uninitialled in-precinct ballots would not be counted. They disagreed as to the admissibility of the uninitialled absentee ballots. Prior to the recount, the appellee argued that the uninitialled absentee ballots should be considered, and the appellant argued that they should not. The trial court ruled in the appellee’s favor. After the recount, the positions of the parties changed as to this issue, and the appellee asked the trial court to reconsider its ruling that the uninitialled absentee ballots should be counted. The trial court granted the motion to reconsider, and again ruled that the uninitialled absentee ballots should be counted.

Section 7 — 44 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 44) provides that the election judge shall give a voter a primary ballot, on the back of which the primary judge shall endorse his initials. Sections 19— 9 and 24A — 10.1 of the Election Code extend this requirement to absentee ballots. Section 24A — 10.1 specifies:

“Immediately after the closing of the polls, the absentee ballots delivered to the precinct judges of election by the election authority shall be examined to determine that such ballots comply with Sections 19 — 9 and 20 — 9 of this Act and are entitled to be deposited in the ballot box; those entitled to be deposited in the ballot box shall be initialed by the precinct judges of election and deposited in the ballot box.” (Ill. Rev. Stat. 1989, ch. 46, par. 24A— 10.1.)

Section 7 — 51 of the Election Code specifies that “[n]o primary ballot, without the endorsement of the judge’s initials thereon, shall be counted.” (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 51.) Section 24A — 10.1 also provides that the judges of election shall examine all ballot cards in the ballot box to determine whether they contain the initials of an election judge. If any ballot card or ballot card envelope is not initialled, it must be marked “Defective” on the back and not counted. Ill. Rev. Stat. 1989, ch. 46, par. 24A-10.1.

Our courts have held that the statutory requirement that judges of election initial each ballot before placing it in the ballot box is mandatory, and that no ballot without such initials may be counted. (Tuthill v. Rendelman (1944), 387 Ill. 321, 330 (rejecting uninitialled in-precinct ballots); Morandi v. Heiman (1961), 23 Ill. 2d 365 (rejecting uninitialled absentee ballots).) In Craig v. Peterson (1968), 39 Ill. 2d 191, however, the court held the initialling requirement directory and allowed the counting of uninitialled absentee ballots. The trial court here, relying upon Craig, allowed the uninitialled absentee ballots to be counted.

In Craig, the plaintiff argued that the absentee ballots returned from 14 precincts should be invalidated because none of them contained the initials of an election judge. The defendant responded that the statutory requirement of initialling was directory, rather than mandatory, and that the ballots should be counted. The Craig court acknowledged that the application of the statutory initialling requirement is mandatory in the usual case, because it enables the election judges to identify those ballots which they have personally placed in the ballot box, and therefore is an effective safeguard against fraudulent practices such as “stuffing” a ballot box. The court found, however, that statutory requirements which deprive qualified voters of their right to have their vote counted, without fault on the part of the voters, are constitutionally suspect where such requirements do not contribute to the integrity of the election process. The court concluded that application of the initialling requirement to absentee ballots at issue in Craig was unnecessary to ensure the integrity of the election and, therefore, construed the initialling requirement as directory in that case.

In Craig, all voters who voted in person at the polling place used voting machines. Therefore, the election judges did not initial in-precinct ballots. The only paper ballots used in the election were those cast by absentee voters. None of the absentee ballots were initialled. The court concluded that, under the circumstances, the initialling requirement did not contribute to the integrity of the election process. The court observed that the initial-ling requirement did not “assist in separating the illegally cast from the legally cast ballots for there were no other paper ballots *** and there is no claim that these absentee ballots were altered, tampered with or in any way improperly preserved — in fact it is stipulated that these are the identical ballots received by the absentee voters from the county clerk.” Craig, 39 Ill. 2d at 199.

The court concluded that mandatory application of the initialling requirement to the absentee ballots in such circumstances would disfranchise a substantial number of qualified voters who had done everything in their power to comply with the law, without actually contributing to the integrity of the election. In fact, application of the initialling requirement might enable corrupt election judges to deliberately refrain from initialling ballots of those absentee voters who they had reason to believe voted other than the way the judges desired. Although the court noted that this possibility always exists as to absentee ballots, courts permitted this risk in other elections only because there was no other means of separating legally from illegally cast ballots. In Craig, on the other hand, no such justification existed. Because the initialling requirement was not necessary to ensure the integrity of the election at issue, the court in Craig counted the uninitialled absentee ballots.

The Craig court stated that its decision was not inconsistent with the result in Morandi v. Heiman (1961), 23 Ill. 2d 365, where uninitialled absentee ballots were not counted. The court noted that Morandi involved an all-paper-ballot election in which identical ballots were used by in-precinct and absentee voters. Thus, in Morandi, unlike Craig, there was no satisfactory method of separating the absentee ballots from the illegally cast in-precinct ballots. Although the respondent in Morandi attempted to show that the absentee ballots could be distinguished from the in-precinct ballots, because they had been folded differently than the in-precinct ballots, the court in Morandi concluded that attempting to distinguish “ ‘a validly cast ballot from an illegal one upon such fortuitous circumstance would be a dangerous rule.’ ” Craig, 39 Ill. 2d at 198, quoting Morandi v. Heiman (1961), 23 Ill. 2d 365, 374.

Two appellate court decisions have considered the statutory requirement that ballots must be endorsed by an election judge in light of Craig. (Snow v. Natzke (1986), 140 Ill. App. 3d 367; Goble v. Board of Education (1980), 83 Ill. App. 3d 284.) In Goble, the court applied Craig to an all-paper-ballot election and held that nine absentee ballots could be counted even though they were not endorsed by an election judge. The court noted that the parties had stipulated to the absence of fraud and that the sole irregularity complained of was the failure to initial the absentee ballots. -The court concluded that the initialling requirement must be held directory in circumstances where the exclusion of the uninitialled ballots would disfranchise innocent voters without contributing to the integrity of the election process.

In Snow v. Natzke (1986), 140 Ill. App. 3d 367, the court refused to count ballots which did not bear the initials of an election judge. The court concluded that the rule in Craig did not apply unless the evidence positively demonstrated that the uninitialled ballots were cast by absentee voters rather than persons voting in person at the polling place.

As stated, the trial court here, relying upon Craig, concluded that the initialling provisions were directory and counted the uninitialled absentee ballots. In so holding, the trial court concluded that the uninitialled ballots were absentee ballots and that those ballots were validly cast. The appellee argues that Craig does not apply here. She argues that Craig is limited to machine elections in which the only paper ballots used are absentee ballots. She argues that this election was an all-paper-ballot election because both the in-precinct and the absentee ballots were paper punch card ballots. The appellee also argues that Craig is not applicable here because the parties did not enter into a stipulation that the absentee ballots were authentic.

The appellant responds that Craig applies to any election in which the uninitialled absentee ballots can be readily identified and distinguished from uninitialled, and thus invalidly cast, in-precinct ballots. She argues that the expert trial testimony of Robert Logay, director of elections for the county clerk, established that the absentee ballots used in this election are readily identifiable because they contain handwritten precinct numbers. The in-precinct ballots, on the other hand, contain preprinted precinct numbers. The appellant also argues that the fact that the parties did not enter into a stipulation is irrelevant here, because neither party raised any allegation of fraud or questioned the authenticity of the disputed absentee ballots.

We conclude that the trial court correctly allowed the uninitialled absentee ballots to be counted. Under Craig, uninitialled absentee ballots may be counted only if: (1) the absentee ballots can be identified and distinguished from in-precinct ballots; and (2) the initialling requirement does not contribute to the integrity of the election process.

In Craig, ballots cast by absentee voters were readily identifiable, because voters at the polling place used voting machines. Here too, ballots cast by absentee voters are readily identifiable and distinguishable from ballots cast by voters at the polling place. The testimony at trial established that all absentee ballots have handwritten precinct numbers, while in-precinct ballots have preprinted precinct numbers. Because the uninitialled absentee ballots can be readily distinguished from uninitialled in-precinct ballots, the first prong of Craig is satisfied. Cf. Morandi v. Heiman (1961), 23 Ill. 2d 365 (uninitialled absentee ballots could not be distinguished from the uninitialled in-precinct ballots).

The question of whether application of the initialling requirement to absentee ballots is necessary to maintain the integrity of the election process is a closer question. Applying the initialling requirement to in-precinct ballots is certainly necessary to preserve the integrity of the election, because the initials provide the only means by which the election officials can identify and separate the legally cast from the illegally cast in-precinct ballots. Thus, here, as in Craig, application of the initialling requirement to in-precinct ballots prevented fraudulent practices, such as stuffing the ballot box.

Because absentee ballots are not cast in the polling place, and are not opened until after the polls have closed, application of the initialling requirement to such ballots is not necessary to prevent voters from fraudulently stuffing the ballot box. Here, as in Craig, neither party questioned the legitimacy of the uninitialled absentee ballots or alleged any fraud or other irregularity. Accordingly, under the reasoning adopted in Craig, application of the initialling requirement is not necessary to preserve the integrity of the election process.

The appellee argues, however, that this case is distinguishable from Craig because the parties in Craig stipulated that the absentee ballots were the identical ballots that the absentee voters received from the county clerk. She claims that no such stipulation exists here. Accordingly, she argues that application of the initialling requirement safeguards the integrity of the election process because it guards against the possibility that some unauthorized person fraudulently replaced the genuine initialled absentee ballots with substitute uninitialled ballots sometime after the genuine ballots were deposited in the ballot box. Basically, the appellee argues that application of the initialling requirement is necessary to ward against the possibility that someone tampered with the absentee ballots after election night.

We must reject the appellee’s attempt to distinguish Craig on this ground. The parties here entered into a stipulation that any and all ballots sought to be admitted into evidence at trial, including the uninitialled absentee ballots questioned here, had been properly preserved from election night to the time of their presentation in court, and that their preservation was in accordance with the provisions of the Election Code and other applicable statutory provisions. Because the appellee stipulated that the uninitialled absentee ballots were properly preserved, she is now precluded from arguing that application of the initialling requirement is necessary to ensure that there was no tampering with the absentee ballots before they were presented to the court. This stipulation, like the stipulation in Craig, removed any concern that other ballots were. substituted for the authentic absentee ballots after election night.

Because the uninitialled absentee ballots are readily identifiable and distinguishable from in-precinct ballots, and because application of the initialling requirement is not necessary to safeguard the integrity of the election process, we conclude that Craig applies. Accordingly, the trial court properly counted the uninitialled absentee ballots.

2. Ballots Lacking Precinct Numbers

The appellant argues that 14 absentee ballots without precinct numbers are invalid and should not have been counted. These 14 ballots may be divided into two categories: (1) 10 ballots in which the sole irregularity complained of is the absence of a precinct number; and (2) four ballots which, in addition to not having a precinct number, also bear the title “Niles Township.” Only the first category of ballots is addressed in this section. The second category of ballots is discussed in the next section, which considers the validity of ballots with the wrong precinct number.

Section 7 — 20 of the Election Code states that “[o]n the back or outside of the primary ballot of each precinct, so as to appear when folded, shall be printed the words ‘Primary Ballot,’ followed by designation of said precinct, the date of the primary and a facsimile of the signature of the election authority who furnished the ballots.” Ill. Rev. Stat. 1989, ch. 46, par. 7 — 20.

There has not been as yet a construction of section 7 — 20, but a number of decisions have interpreted a similar provision in the Election Code which sets out the form, contents and manner of printing of ballots used in general elections. (Ill. Rev. Stat. 1989, ch. 46, par. 16— 3.) Section 16 — 3 specifies that “there shall be printed on the back of each ballot card *** the words ‘Official Ballot,’ followed by the number of the precinct or other precinct identification, *** the date of the election and a facsimile of the signature of the election authority who has caused the ballots to be printed.”

At first, our courts gave section 16 — 3 a mandatory construction and held that ballots which did not strictly comply with all of the printing requirements set out in that section were invalid. See, e.g., People ex rel. Matingly v. Snedeker (1918), 282 Ill. 425 (election void because the ballots used did not contain the words “Official Ballot,” followed by the designation of the polling place for which the ballot was prepared, the date of the election and the facsimile signature of the officer who caused the ballots to be printed); People ex rel. Vance v. Bushu (1919), 288 Ill. 277 (election voided because ballots did not contain the facsimile signature of the town clerk on the back thereof); People ex rel. Childress v. Illinois Central R.R. Co. (1921), 298 Ill. 516 (ballots which did not designate the polling place were invalid).

In Hester v. Kamykowski (1958), 13 Ill. 2d 481, however, the court overruled decisions which held all such requirements mandatory, and held that failure to strictly comply with statutory requirements as to the form of the ballot will not necessarily render a ballot void. The court conceded that printing errors which interfere with the voters’ ability to freely exercise their choice (e.g., ballots which do not provide for write-in candidates) or which destroy the secrecy of the ballot (e.g., translucent envelopes) will invalidate the affected ballots. The court concluded, however, that unintentional errors in printing will not void the ballot where they do not affect the merits of the election. Applying these principles to the facts before it, the Hester court stated:

“In the instant case the form of ballot failed to disclose on the back or outside the words ‘Official Ballot’ and the date of the election, nor did it anywhere designate the polling place for the particular ballot although there were four polling places in the election. *** We are of the opinion that under the present circumstances these irregularities, standing alone, would not, of themselves, justify throwing out the entire number of ballots. [Citation.] Expressions of this court to the contrary *** insofar as they construe the requirements as mandatory regardless of the circumstances and effects in the particular case, represent an unduly strict application and can no longer be accepted as correctly stating the rule. By enforcing with too great technical exactness the provisions concerning the form of ballots the very object of those provisions in securing a fair election may be defeated.” (Hester, 13 Ill. 2d at 487-88.)

Under Hester, technical irregularities, including the absence of a precinct designation on the ballot, do not justify voiding the affected ballot.

The appellant argues that Hester should not be controlling because the court did not consider section 17 — 16 of the Election Code, which states:

“No ballot without the official endorsement shall be deposited in the ballot box, and none but ballots provided in accordance with the provisions of this Act shall be counted.” (Ill. Rev. Stat. 1989, ch. 46, par. 17 — 16.)

The appellant argues that the second clause in section 17 — 16 makes the printing requirements set out in section 16 — 3 mandatory, in that it specifically prohibits election judges from counting ballots which do not strictly comply with the provisions of the Election Code.

Section 17 — 16, however, applies only to general elections and precludes the counting of ballots defective as described which may be used in such elections. Here, we are considering ballots used in a primary election. Section 7 — 51 of the Election Code, which regulates primary elections, simply states that no primary ballots without the endorsement of a judge’s initials thereon shall be counted. That section, unlike section 17 — 16, does not have a general provision that only ballots provided in accordance with the provisions of the act shall be counted.

Moreover, the appellant’s claim that the second clause of section 17 — 16 was intended to include a prohibition of the counting of ballots which do not contain a precinct number is unconvincing. The second clause of section 17 — 16, stating that “none but ballots provided in accordance with the provisions of this Act shall be counted,” does not void every ballot with printing irregularities. Rather, that clause was designed to require the use of only official ballots provided by the election authorities and to invalidate unofficial ballots which might be supplied by candidates, political parties or indeed prepared by the voters themselves for a personal touch.

The appellant also relies upon Pinkston v. Holland (1971), 113 Ill. App. 2d 865, for the proposition that ballots which do not bear a precinct designation are invalid. In Pinkston, the court voided an election for village officers because the ballots lacked a printed facsimile of the signature of the clerk who caused the ballot to be printed, as required by section 16 — 3 of the Election Code. Instead, the clerk had manually signed her name on the ballots on the evening before the election. The court concluded that the printed facsimile requirement specified in section 16 — 3 was mandatory in nature.

The question here was not involved in Pinkston. Moreover, the court in Pinkston did not attempt to distinguish this court’s Hester decision, which construed the printing requirements in section 16 — 3 as directory. Instead, the court relied upon a series of cases which were impliedly overruled in Hester.

Under this court’s holding in Hester the absence of a precinct identification on certain ballots, standing alone, did not invalidate those ballots. Section 7 — 20 must be regarded as directory only.

3. Ballots with the Wrong Precinct Designation

The appellant next argues that the trial court should not have counted five ballots because they bore the wrong precinct number. Three of these ballots were absentee ballots, with the wrong precinct number manually written on the ballot, and two ballots were in-precinct ballots, which had the wrong precinct number printed thereon. The appellant also argues that four ballots without precinct numbers should not have been counted because those ballots bear the title “Niles Township.” The appellant notes that no part of Niles township is within the 55th Representative District. We address each of these claims separately.

The appellant filed a motion in the trial court to have these ballots excluded from the recount, but the trial court denied the motion, relying upon the decision in Hester v. Kamykowski (1958), 13 Ill. 2d 481. The appellant contends that the trial court’s reliance on Hester was misplaced. She argues that Hester did not consider whether ballots cast in the wrong precinct should be counted. Appellant also argues that, under Hester, ballots which do not have a precinct number are invalid when those ballots also have other irregularities.

The appellee argues that the record contains no evidence of illegal voting or proof that these ballots were cast in the wrong precinct. She argues that these ballots involve a ministerial error on the part of an election judge.

Section 7 — 43 of the Election Code, which defines the qualifications of voters at primary elections, specifies that every person who is a United States citizen of 18 or more years of age, and who has resided in the State for 6 months and in the precinct for 30 days before the primary, shall be entitled to vote at the primary. (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 43.) Nothing in the Election Code specifically states that a ballot cast in the wrong precinct is invalid.

The appellant argues, however, that in Boland v. City of LaSalle (1938), 370 Ill. 387, and Thornton v. Gardner (1964), 30 Ill. 2d 234, our court held that ballots cast in the wrong election jurisdiction should not be counted in the election results. In Boland, a resident of the City of LaSalle’s 7th Ward cast her ballot in the 6th Ward. The court refused to count her vote, concluding that the vote “was clearly illegal because cast in the wrong ward, [and] it cannot now be counted either for or against the third proposition.” (Boland, 370 Ill. at 398.) In Thornton v. Gardner (1964), 30 Ill. 2d 234, 235, the court stated that the votes of seven persons who voted at the wrong polling place were determined to be illegal votes. Because there was no evidence as to how these seven voted, the court held that it was appropriate to deduct the votes on a pro rata basis. See also Tuthill v. Rendelman (1944), 387 Ill. 321, 346 (where undisputed evidence established that the voter did not live in the precinct in which she sought to vote, the trial court did not err in refusing to count that vote).

The appellant argues that Boland and Thornton are controlling here, and that ballots which bear the wrong precinct designation may not be counted. Although we agree that, under Boland and Thornton, ballots cast in the wrong precinct are invalid, the facts in this case are distinguishable. The evidence in Boland and Thornton established with certainty that one or more voters voted at the wrong polling place. Here, on the other hand, there is no evidence that any voter cast a ballot in the wrong precinct. The evidence established only that certain ballots bore the wrong precinct number.

We also disagree with the appellee’s contention that the court’s decision in Hester v. Kamykowski (1958), 13 Ill. 2d 481, is controlling. In Hester, the court held that the absence of a precinct designation, standing alone, is not sufficient to invalidate a ballot. The nine ballots disputed here are not simply missing a precinct number. Rather, five of those ballots have the wrong precinct number either written or printed thereon, and four ballots, in addition to not having a precinct number, bear a township designation outside the 55th Representative District.

Thus, the two categories of ballots here fall somewhere in between the ballots held valid in Hester and the ballots invalidated in Boland and Thornton. Accordingly, we must consider the policy considerations underlying each of those decisions in determining whether the trial court properly counted the ballots questioned here. In Boland and Thornton, the evidence established that voters improperly went to the wrong polling place to cast their ballots. The error was therefore attributable to the fault of the voter, and the voters, basically, disfranchised themselves. In Hester, on the other hand, the court repeatedly stated that ignorance, inadvertence or mistake on the part of the election officials should not be permitted to disfranchise an election district or to defeat the will of the electorate. (Hester, 13 Ill. 2d at 487-88.) Accordingly, the court held that irregularities in the form of the ballot, which occur because of the honest mistake of election officials, will not, by themselves, invalidate the election. Other decisions have likewise expressed a reluctance to construe statutory requirements so as to deprive fully qualified voters of their right to have their votes counted, simply because of a mistake on the part of election officials. Craig v. Peterson (1968), 39 Ill. 2d 191, 196; Boland v. City of LaSalle (1938), 370 Ill. 387, 391.

At the same time, courts have not hesitated to invalidate the ballots of voters who were not qualified to vote in the election in question (Tuthill v. Rendelman (1944), 387 Ill. 321, 346; Boland v. City of LaSalle (1938), 370 Ill. 387; Thornton v. Gardner (1964), 30 Ill. 2d 234), or who knowingly violated election laws (Boland v. City of LaSalle (1938), 370 Ill. 387 (invalidating ballot on which voter wrote obscenity)).

Applying the foregoing observations to the ballots questioned here, we conclude that the trial court properly counted the five ballots with the wrong precinct number. There is no allegation or evidence that these ballots were fraudulently cast. The appellant does not claim th