Calloway files appeal in continuing challenge to 5th Ward aldermanic race

William Calloway (Herald file photo)

Staff writer

William Calloway, who lost to Ald. Leslie Hairston (5th) in the April 2 runoff election, is continuing his challenge to the results.

The Chicago Board of Elections certified that Hairston won the runoff by 176 votes. She was sworn in for another term in May. In July, Circuit Court Judge LaGuina Clay-Herron dismissed Calloway’s suit, and in August Calloway said he would appeal.

On Sept. 30, Matthew Topic, Calloway’s current attorney in the election challenge, filed the brief with the Chicago-based 1st District of the Illinois Appellate Court.

At issue is the fact that precinct election judges did not complete Form 80 certification of results in four 5th Ward precincts. Clay-Herron dismissed the case, saying that the forms were directive, not mandatory, and that Calloway had not produced any evidence of election fraud.

Calloway’s attorney argues that filing a Form 80 is mandatory both by state law and because failing to do so compromises an election’s integrity.

The Elections Board has stated repeatedly that ballot-counting discrepancies are publicly investigated and rectified as returns are canvassed.

In interviews with the Herald throughout the six-month election challenge, Elections Board spokesman Jim Allen has said that the authority has found no evidence of fraud or miscounted ballots. A discovery recount of 10 precincts found no major discrepancies after the runoff election.

“When it comes down to it, there’s a suggestion here that, if the judges make a mistake or don’t complete all the paperwork, we should discount the hundreds of voters who did cast legitimate ballots,” Allen said. “The fact is that the law provides for reviewing any discrepancies and resolving them, any problems with incomplete forms or forms that have mistakes. The solution is not to throw out the election.”

He said there is no precedent for a revote “anywhere, in the election code or in case law.”

While state law does not impose a penalty of a Form 80 is not filed, Calloway’s attorney argues that the language of the law shows it to be mandatory: the pertinent section reads “the judges shall sign, seal in a marked envelope and deliver them to the county clerk.”

“The General Assembly is not merely directing the election judges to complete the certificate of results, but rather is explicitly declaring that the certificate of results is required,” Calloway’s attorney wrote. “Thus, this clear and explicit requirement is mandatory.”

The Form 80 records the opening and closing times of a polling place and the numbers of ballots received from the Elections Board, voters, unused ballots, spoiled or damaged ballots and ballots cast from public counters. Without a Form 80, Calloway’s attorney argues “a nefarious actor could choose not to count a ballot because of the candidate being voted for on that ballot.”

Calloway asks that the appeals court order a new election in the four precincts — 5 (which is split between Woodlawn and South Shore, where Calloway won 178-125), 10 (Woodlawn-South Shore, Calloway 119-117), 17 (South Shore, tied 138-138) and 35 (East Hyde Park roughly from the Midway to 55th Street between the railroad viaduct and Stony Island Avenue, Hairston 235-197).

Runoff turnout was 39.44% in 5th Precinct (308 ballots cast out of 781 registered voters), 29.33% in the 10th (242 of 825), 33.77% in the 17th (285 of 844) and 52.51% in the 35th (450 of 857).

Ed Mullen, Hairston’s attorney will file a response to the brief, which Calloway’s attorney can answer. Mullen said the court will then decide the case based on the briefs and evidence already presented.

Topic is Calloway’s third attorney, replacing Frank Avila, who in turn replaced Liz Homsy, who filed the original election challenge. Topic’s firm, Loevy & Loevy, 311 N. Aberdeen St., represented Calloway in his court cases against the Chicago Police for materials related to the murder of Laquan McDonald and the killing of Harith Augustus.