FILED

4/8/2019 2:40 PM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS DOROTHY BROWN
COUNTY DEPARTMENT, COUNTY DIVISION CIRCUIT CLERK
COOK COUNTY, IL
Deborah L. Mell, ) 2019COEL000032
) Calendar, 12
Petitioner, )
) 2019COEL000032
v. )
) 19 COEL 00
Rossana Sanchez, the Chicago Board of )
Election Commissioners, as the election )
authority and the canvass authority for the )
Municipal Runoff Election held on April 2, )
2019, and Marisel A. Hernandez, Chair, )
William J. Kresse, Commissioner, and )
Jonathan T. Swain, Commissioner, )
)
Respondents. )

VERIFIED ELECTION CONTEST COMPLAINT &

PETITION FOR A DECLARATORY JUDGMENT

NOW COMES the Petitioner, Deborah L. Mell, through her attorneys Michael J.

Kasper and James P. Nally, and presents this Verified Election Contest Complaint

pursuant to 65 ILCS 20/21-27 contesting the results of the April 2, 2019 Chicago

Municipal Supplementary (Runoff) Election for the office of Alderman of the 33rd Ward

of the City of Chicago, and Petition for Declaratory Judgment pursuant to 735 ILCS 5/2-

701that 65 ILCS 20/21-27 is unconstitutional as applied to candidates, including

Petitioner, in the April 2, 2019 Chicago Municipal Supplementary (Runoff) Election.

JURISDICTION & VENUE

1. The Court has jurisdiction over this matter pursuant to Section 20/21-27 of the

Revised Cities and Villages Act of 1941 (65 ILCS 20/21-27), and Section 2-701 of

the Illinois Code of Civil Procedure.

2. Section 21-27 of the Revised Cities and Villages Act (65 ILCS 20/21-27)

mandates that any action to contest the results of a Chicago aldermanic election must be
filed within 5 days of date of the contested election, despite the fact that the Respondent

Board of Election Commissioners continues tabulating provisional and vote-by-mail

ballots, and the fact that the election returns will not be final until the issuance of a final

Proclamation of Results on April 18, 2019.

3. As a result, Petitioner will file an Amended Complaint after completion of the

tabulation of returns, the issuance of a final proclamation, and after the conduct of a

discovery recount as permitted by Section 22-9.1 of the Illinois Election Code. 10 ILCS

5/22-9.1.

4. Venue is proper in this Court pursuant to 735 ILCS 5/2-101 because all of the

parties reside in Cook County and the Municipal Supplementary (Runoff) Election being

disputed occurred in Cook County.

PARTIES

5. Petitioner, Deborah L. Mell, is a candidate whose name appeared on the ballot for

the office of Alderman of the 33rd Ward of the City of Chicago at the April 2, 2019

Municipal Supplementary (Runoff) Election and who contests the election returns issued

by the Respondent Board of Election Commissioners indicating that Respondent Sanchez

appears, on the face of the returns, to have been elected Alderman from the 33rd Ward.

Petitioner is also a duly qualified elector of the 33rd Ward of the City of Chicago who

voted in the April 2, 2019 Municipal Supplementary (Runoff) Election, and who, as set

forth more fully and specifically below, in good faith and based on reasonable inquiry

which continues, alleges that mistakes, errors, fraud and illegal acts have been committed

in the casting and counting of ballots for the office of Alderman of the 33rd Ward of the

City of Chicago.

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6. Respondent, Rossana Sanchez, is the other candidate whose name appeared on

the ballot for election to the office of Alderman of the 33rd Ward of the City of Chicago

at the April 2, 2019 Municipal Supplementary (Runoff) Election.

7. Respondent, Chicago Board of Election Commissioners (“Board”), is the election

authority that conducted the Municipal Supplementary (Runoff) Election on April 2,

2019, and acts as the canvassing board that will conduct the official count of the ballots,

and proclaim the final results of the election for the office of Alderman of the 33rd Ward

of the City of Chicago. The Board will conclude its official count and issue a

proclamation declaring a winner of the election on April 18, 2019.

8. Respondents Marisel A. Hernandez, William J. Kresse and Jonathon T. Swain

are named in their official capacities as Board Commissioners.

THE PRELIMINARY ELECTION RETURNS

9. The Preliminary Election Returns published by the Respondent Board on its

official website on the evening of Election Day, dated Tuesday, April 2, 2019

(attached as Exhibit A) indicated that, with all 28 precincts in the 33rd Ward

reporting their results, Petitioner Mell received 5,574 votes and Respondent Sanchez

received 5,598 votes, for a vote differential of 24 votes.

10. The next morning, April 3, 2019, the Preliminary Election Returns published

by the Respondent Board on its official website (attached as Exhibit B) indicated

that, still with all 28 precincts in the 33rd Ward reporting their results, Petitioner Mell

received 5,415 votes and Respondent Sanchez received 5,479 votes, for a vote

differential of 64 votes.

11. As a result, although no additional precincts reported results between

Tuesday evening (April 2, 2019) on Election Day, and the next morning,

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 Wednesday, April 3, 2019, both candidates somehow lost votes overnight.

Petitioner’s total vote tally was reduced by 59 votes and Respondent Sanchez’ vote

total was reduced by 119 votes. This is impossible without mistakes, errors or

inaccuracies.

12. On Saturday, April 6, 2019, after counting vote-by-mail, nursing home

ballots, and other ballots, the Board published returns showing the Petitioner has

received 5,717 votes and Respondent Sanchez has received 5,732 votes, for a current

differential of 15 votes. (Exhibit C).

13. As of this filing, there remain outstanding vote-by-mail ballots that have not

been returned and counted.

14. There also remain 22 provisional ballots that have not been completely

counted. (Exhibit D). Pursuant to the Election Code, voters have until Tuesday,

April 9, 2019, to submit the necessary documentation to have their provisional ballot

validated and counted. 10 ILCS 5/18A-15(b)(5).

15. There were several categories of mistakes, errors, inaccuracies, and illegal acts

committed during the election, in which numerous invalid ballots were wrongly counted,

numerous valid ballots were wrongly not counted, numerous duly qualified voters of the

33rd Ward of the City of Chicago were wrongfully denied the right to vote in the

election, and numerous persons who were not duly qualified voters of the 33rd Ward of

the City of Chicago were wrongly permitted to vote in the election. A recount of the

ballots, wherein all the legally cast ballots are counted and all illegally cast and ineligible

ballots are excluded from the election returns, will show a different result from that

reported by the Respondent Board, will change the results of the election, and

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Petitioner will be declared elected to the office of Alderman of the 33rd Ward of the City

of Chicago.

COUNT I – ELECTION CONTEST

A. VOTE-BY-MAIL BALLOTS WRONGLY

EXCLUDED.

16. Upon information and belief, certain voters of the 33rd Ward of the City of

Chicago properly requested and mailed in vote-by-mail ballots that were properly

post-marked prior to midnight on April 1, 2015 (the statutory deadline for such

ballots) and were timely received by the Board. However, the Board, through

mistake and error, improperly excluded each of these ballots from the election

returns. Because the Board’s conclusion in this regard was incorrect, each of the

ballots were improperly excluded from the election returns.

17. Inclusion of these improperly excluded vote-by-mail ballots in the official

returns will change the outcome of the election and result in Petitioner being declared

the duly elected Alderman of the 33rd Ward of the City of Chicago.

B. PROVISIONAL BALLOTS WRONGLY EXCLUDED

18. As of the date of this filing, a number of voters of the 33rd Ward of the City of

Chicago voted provisional ballots that were properly cast on April 2, 2019. (Exhibit D).

However, the Board, through mistake and error, has either not counted or only partially

counted, some of these ballots, thereby excluding them from the election returns.

19. Inclusion of these properly cast ballots in the official returns will produce an

election result different from the one indicated in the preliminary returns produced by the

Board and will, in conjunction with the other allegations herein, result in a declaration

that Petitioner was duly elected Alderman of the 33rd Ward of the City of Chicago.

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 C. INELIGIBLE VOTERS VOTED.

20. Upon information and belief, certain individuals improperly voted in the

election despite the fact that they do not reside in the 33rd Ward and did not

reside in the 33rd Ward on April 2, 2019, or at the time they voted and were not

residents of the 33rd Ward within 30 days of April 2, 2019. As a result, each of

these such voters was improperly and illegally registered to vote and improperly

and illegally voted in violation of the Illinois Election Code.

21. Upon information and belief, a number of voters cast ballots from addresses at

which they either did not reside, or were not registered to vote in violation of the Illinois

Election Code. As a result, the election returns should be adjusted to reflect the

exclusion of these improper and illegally cast ballots.

22. Investigation continues and results of that investigation and the evidence obtained

during discovery recount permitted under Section 22-9.1 of the Election Code will be

used to amend the Election Contest Complaint & Petition will additional facts and greater

specificity.

COUNT II – DECLARATORY JUDGMENT

23. Section 21-27 of the Revised Cities and Villages Act requires unsuccessful

candidates in Chicago Aldermanic elections to contest the results of those elections

within 5 days of the election. 65 ILCS 20/21-27. This statute is unconstitutional as

applied to the April 2, 2019 Chicago Municipal Supplementary (Runoff) Election for two

reasons: (1) it is not supported by a rational basis, and (2) it violates the Equal Protection

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and Free and Equal Elections clauses of Article I, Section 2, and Article III, Section 3 of

the Illinois Constitution. ILL. CONST. 1970, art. I, § 2; art. III, § 3.

24. First, there is no rational basis for requiring a candidate to contest an election

prior to the proclamation of results, and indeed, even before the Board has concluded

counting the ballots. In this case, the Board has indicated that it will continue counting

ballots until April 16, 2019, eight days after the deadline to contest the election. Thus,

the statute requires candidates to contest an election before the outcome of that election

has been determined. The five-day filing deadline is perfectly rational as applied to the

February, Municipal General Election because the Board must quickly determine whether

a run-off election will be necessary in the very short six weeks before the date of the

April 2, 2019 Supplementary (Runoff) Election. However, no such justification exists for

applying the five-day deadline to the April 2, 2019 Municipal Supplementary (Runoff)

Election.

25. Section 21-27 of the Revised Cities and Villages Act also violates the Equal

Protection and Free and Equal Elections clauses of Article I, Section 2, and Article III,

Section 3 of the Illinois Constitution. ILL. CONST. 1970, art. I, § 2; art. III, § 3.

Candidates in Chicago Aldermanic elections must contest those elections within five days

of the election, but every other candidate who appeared on the ballot at the same April 2,

2019 election for every other office in the State has 30 days after the proclamation of the

results to contest their election results. 10 ILCS 5/23-20 (election contest must be filed

within “thirty (30) days after the person whose election is contested is declared elected. .

.”). In this case, that would result in an election contest deadline of May 20, 2019. (The

thirtieth day after April 18, 2019 is Saturday, May, 18, 2019, resulting in the Monday,

May 20, 2019 filing deadline). There is no rational basis for treating Chicago Municipal

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candidates so differently from all other candidates by requiring them to contest the

results of the same election six weeks earlier than all other candidates, and by doing so

Section 21-27 (65 ILCS 20/21-27) violates Article I, Section 2, and Article III, Section 3

of the Illinois Constitution. ILL. CONST. 1970, art. I, § 2; art. III, § 3.

CONCLUSION

WHEREFORE, Petitioner Deborah L. Mell respectfully prays for entry of an Order

(a) establishing an expedited discovery schedule in this matter; (b) directing a full and

complete recount of all ballots cast in the 33rd Ward of the City of Chicago at the April

2, 2019 Municipal Supplementary (Runoff) Election, including all ballots that were

improperly rejected and not included in the election returns and an examination of all

relevant election equipment and records, including poll books, data logs and records,

paper ballots, ballot applications, electronic voting machine records and data, affidavits,

vote-by-mail ballot applications and records, provisional ballots and records relating

thereto, early voting records and all other relevant materials from the 33rd Ward of the

City of Chicago; (c) adjusting the official election returns and changing the results of the

election; (d) declaring and proclaiming Petitioner Deborah L. Mell as the duly elected

Alderman of the 33rd Ward of the City of Chicago; (d) declaring Section 21-27 of the

Revised Cities and Villages Act (65 ILCS 20/21-27) unconstitutional as applied to the

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April 2, 2019 Chicago Municipal Supplementary (Runoff) Election and (e) granting such

other relief as may be just and proper.

Respectfully submitted,
Deborah L. Mell

By: /s/ Michael J. Kasper

One of Her Attorneys

Michael J. Kasper
151 North Franklin Street, Suite 2500
Chicago, Illinois 60606
312.704.3292
mjkasper60@mac.com
Attorney No. 33837