When attorneys involved in the Rock Island mayoral recount meet again Wednesday afternoon, they will present arguments on several issues that Judge Mark VandeWiele will then have to rule on.
Among them is whether ballots that election judges forgot to initial or mistakenly numbered should count and whether the voter's intent on two over-votes, which were marked for both candidates, can be determined.
Mayor Dennis Pauley defeated David Levin in the April 7 election by a count of 3,066 to 3,053. Levin challenged the result with a lawsuit, which led to a court-ordered recount two weeks ago.
Levin and his attorney, Tom Benson, argue that they found enough evidence during the recount to declare Levin the winner by one vote. It will be up to VandeWiele to look at the evidence, hear arguments and make a final ruling.
Levin and Benson were in court Monday morning, along with Pauley's attorney, Robert Park, Rock Island County Clerk Richard Leibovitz and Rock Island County State's Attorney Jeff Terronez to review a recount report Leibovitz submitted last Thursday.
In the report, Leibovitz did not make a declaration on who he thinks won the race. Instead, he provided election totals with the ballots that came into question broken out along with the Touchscreen ballots.
Leibovitz, who had to hire an attorney prior to the recount, is now being represented by the state's attorney's office. Terronez told VandeWiele that his office didn't want to give the appearance of impropriety during the recount because he had endorsed Levin. Now that the recount is finished, he said, they no longer think that is an issue.
Michael Miller, chief of the state's attorney's civil division, who was also present Monday, will help represent Leibovitz as the case moves forward.
VandeWiele asked several questions Monday in preparation for the hearing Wednesday. He will eventually issue a written ruling on the case.
He asked Leibovitz if he could determine the intent of the voters in the two over-votes, and Leibovitz said he could not. On those ballots, the voters filled in the circles for both Levin and Pauley, then put marks over the vote for Pauley. Benson argues that the voters' intent to pick Levin was clear enough for Leibovitz and his staff to determine on Election Day.
VandeWiele then asked the county clerk if seven optical scan ballots, which mistakenly included a ballot style number instead of an election judge's initials should count. Leibovitz said they should and argued that it was likely a mistake made when the election judges were rotating in and out on what was a busy day.
Leibovitz also said he thinks the Touchscreen ballots, of which there were almost 600, should count, but separated them to point out that they also are not initialed by an election judge. Leibovitz told the judge he doesn't think it's right to exclude the 25 optical scan ballots that didn't contain a judge's initials, or had numbers instead, when there is no evidence of ballot stuffing or fraud.
VandeWiele said he's already been reviewing case law on the uninitialed ballots issue. While he found some exceptions, he said, the statute and several cases show that those votes should not count.
Park said that although he agreed prior to the recount that uninitialed ballots should not count, he has reviewed case law since that time and will now argue that they should.
"I believe not counting the uninitialed ballots is unconstitutional," he said. "I apologize to the court for changing my position, but I don't think that it's too late to do that."
Benson said that by changing his mind, Park is doing what he suggested Levin might do after the recount.
"Now that he believes the outcome has changed, he believes the law has changed," Benson said.
Park clarified that he thinks it's the application of the law, not the law itself, that was unconstitutional.
Leibovitz's previous attorney, Robert Noe, had agreed that the uninitialed ballots shouldn't count, but Leibovitz said he did not agree with him.
Terronez said he thinks testimony needs to be provided by Leibovitz Wednesday that details the voting process on Election Day. He said that would give a factual record for the appellate court to review in case there is an appeal. Benson will also have a chance to cross-examine Leibovitz.
Addressing other issues, the attorneys agreed that Leibovitz's report was right to take two votes away from Pauley because of an error in which a ballot-counting machine mistakenly counted a vote for Pauley three times.
VandeWiele also asked what would happen if he finds the election ended in a tie. Park and Benson agreed that by law the outcome would be determined by chance, possibly by drawing names from a hat.
The judge asked what would happen if he finds that Levin won. Benson said the judge would have to issue an order directing the election authority to declare Levin the victor. VandeWiele said if that is his ruling he would likely stay his decision - leave Pauley as mayor - giving Pauley time to appeal.
It is also possible for Levin to appeal if the judge decides the outcome of the election has not changed.