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No change in outcome of judge race after recount

Published: Tuesday, April 29, 2014 6:54 p.m. CDT • Updated: Tuesday, April 29, 2014 7:35 p.m. CDT

AURORA – The outcome of the discovery recount Monday in the circuit judge race between Marmarie Kostelny and D.J. Tegeler has not changed the result, said Linda Fechner, executive director of the Aurora Election Commission.

That is despite an objection by Kostelny's attorney that one of the ballots could not be counted in the machine, she said.

The ballot "was not marked as other ones, but it was clearly marked. It was put to the side," Fechner said. "We decided – we all agreed by consensus – to put the ballot aside and close the results."

At issue is a single ballot from the 12th precinct, in which a voter marked choices with a check mark instead of filling in the oval, she said.

Fechner said it is known that ballot was counted on primary election day March 18 because the check-marked ballot was rejected by the optical scanning equipment during the recount, reducing the total by one. 

"If we had continuously resent it, it would have gone through," Fechner said. "It did count on Election Day. When we did the recount and did not put that ballot in, obviously we were short a ballot. We knew that, and we all agreed the ballot should have counted."

Neither Kostelny nor her attorney returned messages seeking comment.

Kostelny, a Kane County associate judge, lost to Geneva attorney Tegeler by seven votes, 6,220 to 6,213, for the Republican nomination to fill a vacancy to be left by Judge Karen Simpson, who plans to retire Oct. 6. Associate judges are appointed. Circuit judges are elected.  

Kostelny is seeking another discovery recount of 16 precincts at the Kane County Clerk's office, scheduled to begin Monday and continue through May 7. 

Tegeler attorney Ken Shepro said the check-marked ballot at issue in Aurora is a good ballot.

"The election code clearly says that with an optical scan system, a check mark is a valid mark and must be counted," Shepro said. "In addition, it also says if the intent of the voter can be clearly ascertained, the ballot is counted – no matter what kind of mark is used."

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