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CASE STUDIES IN EMERGENCY ELECTION LITIGATION
Rejecting Absentee Ballots Without Notice
and an Opportunity to Be Heard
Zessar v. Helander (David H. Coar, N.D. Ill. 1:05-cv-1917)
A 2005 federal class action filed four days before a scheduled elec-
tion charged that the state's absentee voting system did not comply
with due process requirements; an absentee vote cast in 2004 was
not counted because of an erroneous conclusion that the ballot sig-
nature did not match the registration signature. The district judge
initially heard a motion for emergency relief on election day, but set
the matter for hearing two days later when defendants could partic-
ipate after the plaintiffs attorney acknowledged difficulties arising
from his filing the case so close to an election. Because the plaintiff
voted in person on election day, the district judge denied him im-
mediate relief at the second hearing. After certifying both plaintiff
and defendant classes, the district judge determined that state pro-
cedures violated due process.
Subject: Absentee and early voting. Topics: Absentee ballots;
signature matching; laches; class action.
A Lake County voter filed a class action complaint on April 1, 2005, four
days before a scheduled election, charging that Illinois's absentee voting sys-
tem did not comply with the Fourth Amendment's due process require-
ments.' The plaintiffs absentee vote in the 2004 general election had not
been counted because of an erroneous conclusion that his signature on the
ballot did not match his voter registration signature.2 The plaintiff filed a
motion for an emergency injunction on April 4.
Judge David H. Coar heard the plaintiffs motion on election day. When
asked why the case had been filed so close to an election, the plaintiffs attor-
ney said that he had been preparing the complaint when he realized a by-
election was at hand, so he promptly filed the case.' The attorney agreed that
his motion could be heard two days later when the defendants would be
available to attend.6
1. Complaint, Zessar v. Helander, No. 1:05-cv-1917 (N.D. Ill. Apr. 1, 2005), D.E. 1,filed
as Ex. A, Preliminary Injunction Motion, id. (Apr. 4, 2005), D.E. 6; Zessar v. Keith, 536 F.3d
788, 790-91 (7th Cir. 2008).
2. Zessar, 536 F.3d at 790; Summary Judgment Opinion at 2, Zessar, No. 1:05-cv-1917
(N.D. Ill. Mar. 13, 2006), D.E. 87, 2006 WL 642646.
3. Preliminary Injunction Motion, supra note 1.
4. Transcript, Zessar, No. 1:05-cv-1917 (N.D. Ill. Apr. 5, 2005, filed June 3, 2005), D.E. 19
[hereinafter Apr. 5, 2005, Transcript]; Minutes, id. (Apr. 5, 2005), D.E. 8.
5. Apr. 5, 2005, Transcript, supra note 4, at 3-4.
6. Id. at 2, 4.
Federal Judicial Center 11/16/2018
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