Chapter 3 Ms. Pullen and one for Ms. Mulligan (the votes on 19 of those ballots were still impossible to determine). All told then, Penny Pullen beat Rosemary Mulligan by six votes, 7,392 to 7,386. A careful reading of this important case shows that the Illinois Supreme Court worked very hard to apply the legislative decisions reflected in the state election code in a way that allowed peoples’ votes to count. The supreme court’s approach to the principles it enunciated for interpreting the statutes recognizes that people make mistakes throughout the election process. Election officials make mistakes, and voters make mistakes. But it takes more than a mistake to decide that a candidate should not get the vote a person wanted that candidate to get. A decision to disregard that vote requires that the mistake affect the voter’s qualifications or the ballot’s legitimacy. E. Application of mandatory/directory principles to specific types of statutes. The distinction between mandatory and directory provisions in election law, and the principles underlying the distinction, are applied routinely in cases involving challenges to elections. Even though these cases affect many different aspects of election procedures, the courts use the mandatory/directory dichotomy as the basis of their decisions. However, while using the same principles, courts sometimes reach differing conclusions on similar facts. This can best be illustrated by the way the courts applied the distinction between mandatory and directory provisions to real-life fact situations involving four specific types of statutes commonly at issue in election challenges: • • • • initialing of ballots by election officials, handling ballots, candidate qualification procedures, and secrecy of the ballot. E.1. Initialing of ballots: Requirements that officials initial the ballots ensure the integrity of the election and can be considered mandatory In three cases—one from Minnesota in 1967, one from Indiana in 1985 and one from Mississippi in 1991—polling place officials failed to initial voters’ ballots as required by state law. In the first two cases, the initialing requirement was found to be mandatory and the uninitialed ballots were ruled to be invalid. In the third case, the initialing requirement was found to be a technical error, and therefore directory, because the integrity of the uninitialed ballots was not questioned, and the uninitialed ballots were counted (although a dissent in the case argued that the requirement was mandatory and that the deviation from the law meant that there was not a legal expression of the will of the voters). In 1967, the Minnesota Supreme Court decided Johnson v. Trnka, 154 N.W.2d 185, where Charles E. Johnson ran against Frank Trnka, the incumbent, for the office of county auditor in Isanti County. When the votes were counted, Mr. Johnson was ahead by four votes out of 5,082 total votes cast. But the election officials did not always follow the state law that required two election judges—polling place officials—to initial all of the ballots at the polling place before the polls opened. Six of the ballots in the ballot box at one precinct had not been initialed: four were for Mr. Johnson and two were for Mr. Trnka. In addition, while there were 505 registered voters in the precinct, there were 507 ballots in the ballot box, including the uninitialed ballots. In the subsequent challenge of the election, the trial court resolved the over-voting by simply drawing out two ballots at random from among all of the ballots counted, which left Mr. Johnson with a two-vote victory. But that victory was to be short lived. 65