CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 8/15/2023 1

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 election 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 signature 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 participate after the plaintiff’s 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 immediate relief at the second hearing. After certifying both plaintiff 

and defendant classes, the district judge determined that state procedures violated due process. 

Subject: Absentee and early voting. Topics: Absentee ballots; 

signature matching; laches; class action; attorney fees. 

A Lake County voter filed a federal class-action complaint in the Northern 

District of Illinois on April 1, 2005, four days before a scheduled election, 

charging that Illinois’s absentee voting system did not comply with the 

Fourth Amendment’s due-process requirements.1 The plaintiff’s 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 voterregistration signature.2

 The plaintiff filed a motion for an emergency injunction on April 4.3

Judge David H. Coar heard the plaintiff’s motion on election day.4

 When 

asked why the case had been filed so close to an election, the plaintiff’s attorney said that he had been preparing the complaint when he realized a byelection was at hand, so he promptly filed the case.5

 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. 

Judge Coar retired on December 31, 2010. Federal Judicial Center Biographical Directory 

of Article III Federal Judges, www.fjc.gov/history/judges. 

5. Apr. 5, 2005, Transcript, supra note 4, at 3–4. 

6. Id. at 2, 4. 
Rejecting Absentee Ballots Without Notice an Opportunity to Be Heard 

2 Federal Judicial Center 8/15/2023 

At the second hearing, Judge Coar denied the plaintiff emergency relief.7

Because he voted in person two days previously, he was not in need of emergency relief.8

The case proceeded, and Judge Coar certified both plaintiff and defendant classes on March 7, 2006.9

 On March 13, Judge Coar determined that Illinois’s procedures violated due process.10 He ordered the parties to “submit 

proposed procedures for providing timely notice and pre-deprivation hearing to absentee voters whose ballots have been rejected.”11

Judge Coar decided on October 10 that July 3 amendments to Illinois’s 

election code did not moot the case.12 On June 11, 2007, he determined that 

the preamendment statute was unconstitutional and the plaintiff was a prevailing party entitled to attorney fees on that issue.13 The court of appeals, 

however, decided that litigation on the preamendment statute had been 

mooted by the amendments.14

Illinois’s election code later provided that rejecting an absentee ballot required notice to the voter “within 2 days after the rejection but in all cases 

before the close of the period of counting provisional ballots” with an opportunity to be heard within fourteen days of the election.15

7. Transcript, Zessar, No. 1:05-cv-1917 (N.D. Ill. Apr. 7, 2005, filed June 3, 2005), D.E. 19 

[hereinafter Apr. 7, 2005, Transcript]; Minutes, id. (Apr. 7, 2005), D.E. 9. 

8. Apr. 7, 2005, Transcript, supra note 7, at 5–6, 9. 

9. Opinion, Zessar, No. 1:05-cv-1917 (N.D. Ill. Mar. 7, 2006), D.E. 85, 2006 WL 573889. 

10. Summary-Judgment Opinion, supra note 2; Zessar v. Keith, 536 F.3d 788, 791 (7th 

Cir. 2008); see Abdon M. Pallasch, Judge: Nixed Absentee Votes Due Appeal, Chi. Sun-Times, 

Mar. 14, 2006, at 36. 

11. Summary-Judgment Opinion, supra note 2, at 19; Zessar, 536 F.3d at 791. 

12. Opinion, Zessar, No. 1:05-cv-1917 (N.D. Ill. Oct. 10, 2006), D.E. 124, 2006 WL 

2916825; Zessar, 536 F.3d at 791. 

13. Opinion, Zessar, No. 1:05-cv-1917 (N.D. Ill. June 11, 2007), D.E. 157, 2007 WL 

1703915; Zessar, 536 F.3d at 792. 

14. Zessar, 536 F.3d 788, cert. denied, 556 U.S. 1268 (2009). 

15. Id. at 792 (quoting the statute); see 10 ILCS 5/19-8(g-5).