After hearing almost two hours of testimony Wednesday, two questions still stood out for Circuit Judge Mark VandeWiele as he tries to decide who really won the April 7 Rock Island mayoral election.

Should 25 ballots that election judges forgot to initial be included in the count, as they already were, and should two over votes that didn't count before, be included and who should they go to.

VandeWiele said he will issue a written ruling and distribute it to the parties and media via e-mail. He hopes to have it finished within a week, but could not make that a guarantee.

"This will be my top priority," he said, noting he has a lot of information to review.

Dennis Pauley, who was seated as mayor in early May, won the election over David Levin by a count of 3,066 to 3,053. During a court-ordered recount Pauley lost two votes because one ballot in his favor was mistakenly fed into the machine three times.

When the 25 ballots that weren't initialed by an election judge, or were mistakenly numbered, were totalled, Pauley lost 10 more votes. There were also two over votes found where the voters filled in the circles for both Pauley and Levin and then made marks over the vote for Pauley.

Levin now contends that he won the race by one vote and he and attorney Tom Benson made that argument to VandeWiele Wednesday.

"I think my attorney has made a very good case," Levin said after the hearing. "The statute from the Illinois Legislature clearly shows what the election authority should do" with uninitialed ballots and over votes.

Benson added that ignoring the statute could set a bad precedent.

Pauley didn't see any other issues in the race beyond the uninitialed ballots and the over votes.

"It still comes down to the fact they have these uninitialed ballots (and whether they should count) or is the election going to be determined by two over votes," he said. "The judge heard a lot of testimony, now he has to make the decision."

Both Pauley and Levin said after the hearing that they have not decided if they will appeal VandeWiele's eventual ruling.

On both issues VandeWiele heard testimony from Rock Island County Clerk Richard Leibovitz who told the judge he thinks the uninitialed ballots should count and that there is no way to determine the voters' intent on the two over votes.

Leibovitz stopped the court ordered recount for two days after getting frustrated with the attorneys for deciding to exclude the ballots without an election judge's initials. He said the practice of initialing ballots is outdated and the machines that count the votes can now safeguard against voter fraud and ballot stuffing, which is why election judges had to initial the ballots in the past. He noted that touchscreen ballots do not require a judge's initials.

"It makes no sense to me that we have two standards (for the optical scan and touchscreen ballots) when he have a check and balance system in place," he said. "Everyone knows that we're (disenfranchising) voters who came and registered and went through the process and did everything correctly."

VandeWiele made it a point to ask Leibovitz why he stopped the recount. The judge asked if he understood that he was given the discretion to conduct the recount, not to stop it and Leibovitz said he understood.

On the over votes one occurred at the polling place and should have been rejected by the machine, Leibovitz said. The machines will reject the ballot at first and give the voter the option to spoil the ballot and get a new one. If they choose not to do that, the ballot will be fed into the machine and counted as an over vote, Leibovitz said.

The second over vote was on an absentee ballot and there was no option to ask the voter if they wanted to submit a new ballot, Leibovitz said. Benson asked Leibovitz if he understood that state law directs the election authority to make a determination on over votes. Leibovitz said that was not his understanding.

"I'm heading down a slippery slope that there is no end to if I try to determine a voter's intent," Leibovitz said.

VandeWiele noted that it will now be up to him to make that determination.

Benson and Pauley's attorney, Robert Park, debated whether state statute on not counting uninitialed ballots is mandatory or directory. Leibovitz testified that he thought it was directory.

Benson argued that the election judge sits 8-to-10 feet, according to Leibovitz's testimony, from the ballot box when the voters feed them into the machine after they're finished. From there they are supposed to observe any suspicious activity and whether an election judge initialed the ballot earlier. He says that's too far away to be sure of anything and that the state statute is still necessary.

"There is no fraud allegation (in this election), but we have no way of knowing" for sure, Benson said. "These initials are all we have to protect the voters."

Park argued that the process isn't like it was years ago when election judges would take all of the ballots out and count them at the end of the day. They are now counted as soon as they're entered in the machine.

"Technology has changed," he said. Someone can't "come in after the poles have closed and stuff in some extra ballots."