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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

An Overview of Illinois Recount Procedure and Some Considerations for a Hypothetical Recount


After over 3.5 million votes cast in the Illinois gubernatorial race, approximately 8,000 votes separate the incumbent Pat Quinn from challenger Bill Brady. That difference represents a mere 0.2% of votes cast in the race with 93% of the precincts reporting. Regardless of who wins the election, this margin would be enough, in most states, to trigger an automatic recount. However, Illinois has no provision that establishes a threshold requirement for an automatic recount. 

Instead, Illinois allows a losing candidate to initiate a “discovery recount” if he or she received at least 95% of the votes received by the winning candidate. Discovery recounts allow losing candidates to conduct limited review of voting operations in up to 25% of the precincts involved in the election. Discovery recounts can never change the result of an election. Instead, any irregularities, evidence of fraud, or discrepancies in vote tallying must be brought before the State Supreme Court in order for the court to decide whether an actual total recount is necessary. Alternatively, candidates can forego the discovery recount phase and file a claim directly with the State Supreme Court. Based on the claims the Court can then order a full recount.

If the Court orders a full recount, Illinois statute calls for the appointment of a State Circuit judge to oversee the recount in the precinct where they sit.

Only these court-ordered recounts can change the results of an election. A fuller explanation of Illinois recount law can be found at http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=001000050HArt.+23&ActID=170&ChapAct=10%26nbsp%3BILCS%26nbsp%3B5%2F&ChapterID=3&ChapterName=ELECTIONS&SectionID=36653&SeqStart=72500000&SeqEnd=76800000&ActName=Election+Code.

Given the peculiarities of the Illinois recount procedure; the following may enter into a challenging candidate’s recount calculus:

1. If deciding to conduct a discovery recount, which limited number of precincts should be recounted?

2. Complaints filed with the court require the losing candidate to state with particularity the exact precincts and exact mistake, fraud, or irregularity that allegedly took place as well as show that the mistake, fraud, or irregularity was material. Without this kind of evidence a candidate will likely be denied a court-ordered full recount

3. This procedure has yet to be tested in court and the State Supreme Court in the past has, on constitutional grounds, overturned statutes directing how the court should conduct a recount. See In re Contest of Election for Offices of Governor, 93 Ill.2d 463 (1983). Accordingly, the State Supreme Court could reject the current law—requiring the Supreme Court to appoint Circuit Judges to oversee the election—to the extent that it is “an attempt by the legislature to alter the basic character of the circuit courts.” Id. at 473.

4. Without alleging any partisanship or impropriety on the part of the State Supreme Court Justices, it is at least relevant to note that four out of the seven Justices ran on the democratic ticket in Illinois’ partisan judicial elections. This could be relevant if the numbers stay the way they are now because the losing candidate, currently Bill Brady, is a Republican. Thus, four democrat Justices could serve in a gatekeepers role, possibly preventing Brady from even receiving a full recount.


Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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