Calloway v. Chicago Board of Election Commissioners
155 N.E.3d 509
Ill. App. Ct.2020Background
- William Calloway and Leslie Hairston were runoff candidates for 5th‑ward alderman on April 2, 2019; Hairston was declared the winner by ~170 votes.
- Calloway filed an election contest within five days, later amending to allege four precincts (5, 10, 17, 35) had missing or incomplete election‑night certificates (Form 80).
- Calloway argued completion of Form 80 is mandatory under the Election Code and that missing forms prevent verification, justifying new elections in affected precincts.
- Hairston and the Chicago Board of Election Commissioners moved to dismiss under sections 2‑615 and 2‑619 (via 2‑619.1), arguing Form 80 completion is directory and statutory retabulation/audit procedures remedy discrepancies; they also cited a discovery recount.
- The circuit court dismissed with prejudice, holding Form 80 completion is directory and Calloway alleged only speculative harms; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is completing a Form 80 on election day mandatory or directory? | "Shall" in 10 ILCS 5/18‑14 makes completion mandatory; missing Form 80 voids precinct results. | Section 18‑14 and §24B/24C‑15 together show BOE may retabulate/audit; no statutory penalty means directory. | Directory — completion is not mandatory; retabulation/audit remedies exist. |
| Did Calloway plead sufficient facts under §2‑615 to contest the election? | Not required to plead an actual discrepancy; statutory breach alone suffices. | Complaint is conclusory/speculative and fails to allege how outcomes were affected. | Insufficient — pleadings lack non‑conclusory facts showing integrity was undermined. |
| Does an affirmative matter (discovery recount) defeat the complaint under §2‑619? | Disputed — plaintiff contends recount selection limited and not dispositive. | Recount confirmed results in selected precincts, defeating the claim. | Appellate court did not reach §2‑619 because it affirmed dismissal on §2‑615 grounds. |
| Is the proper remedy a new election for precincts with missing/incomplete Form 80s? | New election in affected precincts; failure to complete Form 80 voids ballots. | No; statutory scheme authorizes retabulation/audit to correct discrepancies — not a new election. | New election not warranted; statutory retabulation/audit is the appropriate remedy. |
Key Cases Cited
- Pullen v. Mulligan, 138 Ill. 2d 21 (1990) (distinguishes mandatory vs. directory election provisions)
- Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376 (2004) (pleading sufficiency under §2‑615)
- Delvillar, People v., 235 Ill. 2d 507 (2009) (de novo review of statutory construction)
- Brennan v. Illinois State Board of Elections, 336 Ill. App. 3d 749 (2002) (use of "shall" may be directory depending on legislative intent)
- Foster v. Chicago Board of Election Commissioners, 176 Ill. App. 3d 776 (1988) (election contest pleadings alleging directory violations without fraud are dismissible)
- Andrews v. Powell, 365 Ill. App. 3d 513 (2006) (invalidating elections is a drastic remedy; must show pervasive errors)
- Time Savers, Inc. v. La Salle Bank, N.A., 371 Ill. App. 3d 759 (2007) (conclusory allegations insufficient to survive §2‑615)