Election Law @ Moritz

50 Questions for 5 Key States

50 Questions for 5 States

Illinois

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Note: The following is a compendium of election administration questions and answers identified by the EL@M team as important for the November, 2006 election. The information was gathered from publicly available sources, and is intended as an objective, nonpartisan summary. It is not intended to constitute legal advice. Those seeking legal advice should retain an attorney.

 

Eligibility and Registration

1. What are the requirements for eligibility to vote? [answer]

2. What procedures must eligible voters follow to register? [answer]

Registration and database maintenance

3. What process, if any, is the state following in matching voter records in its statewide registration database against Social Security and state motor vehicle records? [answer]

4. If a new voter registration card is rejected because the information it contains is slightly different than the information contained in other state databases concerning that same voter (suppose the bureau of voter vehicles has the name of the driver with that license number as "Andrew Smith" whereas the voter registration card with that license number provided as ID says "Andy Smith"), what opportunity does the voter have to correct that error, and will a provisional ballot cast by that voter count? [answer]

5. If a provisional ballot is rejected because the voter is unregistered according to records in the state's new centralized voter registration database, what additional procedures (if any) must state officials undertake to see if the omission of this voter from the database is erroneous? (For example, must the state election officials double-check with the state's bureau of motor vehicles to determine if any new registration forms, although submitted by the voter on time, were delayed in being transmitted to the board of elections?) [answer]

6. Before rejecting a provisional ballot on the ground that the voter is unregistered according to records in the state's new centralized voter registration database, what procedures (if any) does the state have for requiring its officials to check whether the voter is listed in the database under slightly different information than provided on the provisional ballot (for example, "Andy" instead of "Andrew"; middle name instead of middle initial; 125 Elm "Street" instead of 125 Elm "Road")? [answer]

7. If a provisional ballot is rejected because the signature on the ballot does not match the signature in the state's centralized voter registration database, does the state have any objective standards for making this signature-mismatching determination? [answer]

8. What opportunity in general does a voter have to determine whether the submission of a new registration form has successfully resulted in the voter's inclusion in the state's database of registered voters and, if the voter learns that the submission was unsuccessful, to rectify the problem before Election Day (thereby enabling the voter to cast a regular rather than provisional ballot)? [answer]

9. If it is determined that a new voter registration card was not included in the state's database of registered voters because of an error committed by a third-party registration group (for example, the group failed to deliver the card on time), will a provisional ballot cast by the voter count? [answer]

10. (A) When will a voter's registration be canceled? (B) What is the last date before an election on which state officials may purge voters from their voter registration database? (C) What kind of notice do officials need to have provided to a voter before purging a voter from the database? (D) What opportunity must officials give voters to challenge the purge (either prior to Election Day, or during the process of reviewing provisional ballots)? [answer]

11. What procedure has the state adopted to notify voters whether their provisional ballot was counted; what procedures if any has the state adopted to notify the public of the percentage of provisional ballots that have been rejected as ineligible and the specific ground for this rejection? [answer]

12. What types of regulations apply to third-party organizations and individuals who wish to help register voters? [answer]

Identification

13. What is the last date for the submission of new registration forms, and what ID must be submitted with these forms? [answer]

14. What ID must be submitted at the polls to cast a regular rather than provisional ballot? [answer]

15. What ID is necessary to receive an absentee ballot? What ID must be submitted when casting an absentee ballot in order for it to count? [answer]

Eligibility

16. In what circumstances if any are previously convicted felons eligible to vote? [answer]

17. In what circumstances, either prior to or on Election Day, may the eligibility of a registered voter be challenged by another voter or by an election officials? If challenged, what opportunity does the registered voter have to defend his or her eligibility, and is the consequence of an unsuccessful defense the obligation to cast a provisional ballot, or the denial of any ballot altogether? [answer]

Absentee/Early Voting

18. What if any specific need must a voter assert in order to receive an absentee ballot (or to vote early)? What are the earliest and latest dates by which a voter can submit an absentee ballot by mail, or in person? [answer]

19. If it were discovered that supporters of the winning candidate had paid (or otherwise improperly induced) voters to cast their absentee ballots for that candidate, and the number of "bought" absentee ballots exceeded that candidate's margin of victory, would the state judiciary invalidate the election result and rule the runner-up to be the rightful winner? [answer]

20. (A) What are the procedures for counting absentee/early ballots, as opposed to regular ballots? (B) Who, if anyone, can observe the counting of absentee ballots? (C) On what grounds may election officials reject an absentee ballot as ineligible for counting? (D) What notification, if any, must the election officials provide—either to the voters who cast these ballots or to the public—that these absentee ballots were rejected? [answer]

21. What pre-certification procedures, if any—in other words, separate from post-certification judicial contest of the outcome of the election itself—exist for disputing the exclusion of absentee ballots? [answer]

22. Under what circumstances if any may a voter who has requested an absentee ballot nonetheless cast a regular or provisional ballot at the polling place on Election Day? (Only when the voter has not received the requested absentee ballot, or for another reason, such as the voter wishes to change a vote from one candidate to another?). [answer]

23. What procedures if any does the state have for preventing double-voting by a voter who has cast both an absentee and an in-person ballot? [answer]

Poll Workers/Polling Procedures

24. Who may observe the voting process at polling places on Election Day? [answer]

25. What procedures and protocols, if any, does the state have in place to assure that poll workers and other local election officials follow statewide rules uniformly and do not engage in county-by-county, or even precinct-by-precinct, variation in the administration of rules concerning voter eligibility and the counting of ballots? [answer]

26. What rules exist determining the number of (A) voting machines, (B) the number of poll workers, and (C) the number of provisional ballots, for each precinct? (D) What additional procedures, if any, are in place to avoid long lines at polling places? (E) What contingency plans are in place if poll workers are unable to get voting machines to work according to their instructions? If poll workers do not report for duty on Election Day? [answer]

27. What rules are in place to ensure that disabled voters are able to cast a ballot at their polling places on Election Day? [answer]

28. In the event that problems arise on Election Day, who determines whether to keep polls open later than originally planned and what rules, if any, guide this determination? [answer]

29. (A) What rules if any does the state have to require election officials to notify voters of their correct polling places? (B) What remedies exist, if any, in the event that officials fail to comply with such rules? [answer]

Provisional Voting

30. Who cannot cast a regular ballot at the polls, but may cast a provisional ballot? [answer]

31. When will a provisional ballot be counted? [answer]

32. If a new voter registration card is rejected because of incomplete information (signature missing, for example), and a provisional ballot is cast by that voter, in what circumstances (if any) will the state count that provisional ballot as a valid vote? [answer]

33. (A) Who are the state officials that determine whether provisional ballots will count as valid votes? Are these officials elected, appointed, partisan, or non-partisan? (B) Is the review of provisional ballots conducted in public or behind closed doors? (C) How soon after Election Day must this review of provisional ballots be complete? (D) Is it subject to any form of administrative review or appeal? [answer]

34. If a voter is required to cast a provisional ballot because the voter lacks required ID when going to the polls, how much time (if any) is the voter permitted to provide the necessary ID in order for the provisional ballot to count? [answer]

35. If a previously registered voter has moved within the same state, but has not updated the voter's registration, and if the voter casts a provisional ballot at the correct precinct for the voter's new address, will the provisional ballot count? [answer]

36. If a voter casts a provisional ballot at a precinct that is not the correct one for the voter's current address, will the provisional ballot count? [answer]

Recounts/Contests

37. What rules does the state have for protecting the chain of custody of ballots and voting counting equipment, and what remedies exist – including the possibility of ordering a new election – if those chain of custody rules are violated? [answer]

38. Are losing candidates and their supporters permitted to contest the results of an election on the ground that ineligible ballots were included in certified total, even if it is unknown for which candidate those ineligible ballots were cast? [answer]

39. How close must the result of a statewide election be in order for an automatic recount to occur? [answer]

40. (A) In what circumstances are losing candidates or their supporters entitled to request a (non-automatic) recount? (B) How is that done? What is the deadline for doing so? (C) When should the recount be completed? (D) Who pays for the recount? [answer]

41. In the event of a recount of votes cast on a DRE machine, is the record to be recounted electronic or paper? [answer]

42. Who are the state officials who conduct recounts? [answer]

43. In an election contest lawsuit, what is the contestant's burden of proof? [answer]

44. In an election contest lawsuit, will the court permit discovery, including depositions? [answer]

45. In an election contest lawsuit, how much evidence of wrongdoing must a contestant have to survive a motion to dismiss? [answer]

46. In an election contest lawsuit, what specific deadlines and timetable does state law provide for a trial? [answer]

47. Are the judges in the state themselves elected or appointed? [answer]

Other

48. What specific problems arose in connection with the voting process in this state during 2004? What remedies, if any, did the state adopt in response to those problems? [answer]

49. What pending litigation exists in the state concerning the voting process? [answer]

50. What voting machines are used in this particular state? What security measures are in place to prevent tampering with the voting machines? Insofar as DRE machines are used, is there a requirement that they produce a voter-verifiable paper trail? [answer]

Eligibility and Registration

1. What are the requirements for eligibility to vote?

To be eligible to register, citizens must show they will be eighteen or over on the date of the election in which they wish to vote. 10 ILCS 5/4-2; 5-2; 6-27; Orr v. Edgar, 283 Ill.App.3d 1088, 1090 (Ill.App.1 Dist., 1996). They must also show that on that date they will have lived in the relevant precinct for thirty days or more.

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2. What procedures must eligible voters follow to register?

Voters may follow any one of four procedures: Traditional in-person registration, mail-in registration, absentee registration, or grace period registration. Under some circumstances, military voters need not register at all before voting.

Traditional in-person registration

Voters seeking to register using the traditional procedure must appear at a registration place, answer questions put to them, present appropriate ID (see question 13), take an oath, and execute an affidavit of registration. 10 ILCS 5/4-10; 5-9; 6-37. Voters must register on or before the twenty-eighth day before the election. 10 ILCS 5/4-6; 5-5; 6-29; 2005 Election Handbook, page 4.

If the clerk is not satisfied that the applicant is qualified, the clerk shall notify the applicant in writing to appear before the clerk and complete registration. 10 ILCS 5/4-10; 5-9; 6-37. If the voter does not complete the registration on the original day he or she appeared, the clerk shall mark the application "incomplete" and the voter shall not be allowed to vote until completing the application. The applicant may complete and present to the clerk an authorized affidavit claiming he or she should have been registered. Upon receipt of such an application, officials must immediately "hear" the matter.

Mail-in registration

Any voter may register by mail by completing and mailing to local authorities a registration application. 10 ILCS 5/1A-16; Pamphlet, Registering to Vote in Illinois. To be effective for the upcoming election, the registration form must be postmarked prior to the close of registration. 10 ILCS 5/1A-16; 26 IL ADC 216.70; Pamphlet, Registering to Vote in Illinois. However, mail-in applications that do not contain postmarks will be construed as timely if they are received "not later than five days after the close of registration…." 10 ILCS 5/1A-16; 26 IL ADC 216.70.

Registering by mail precludes registrants from casting mail-in absentee ballots (but not in-person absentee ballots) in their first election. 10 ILCS 5/4-105; 5-105; 26 IL ADC 216.90. Pamphlet, Registering to Vote in Illinois. This preclusion does not apply to military or overseas voters. Voters who register using this procedure must send in with the completed application either (i) a copy of a current and valid photo identification or (ii) a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter. 10 ILCS 5/1A-16. Voters who do not include this information will have to present it at the polls.

Absentee registration

Voters who are absent from their county of residence may register by mail at the same time they request an absentee ballot. 10 ILCS 5/4-10; 5-9; 6-29.

Grace period registration

Using "grace period registration," voters may register "until the 14th day before" the upcoming election by appearing in person at a voter registration location. 10 ILCS 5/4-50, 5/5-50, 6-100. The statute does not state whether the grace period includes the fourteenth day before the election, or merely goes up to it and stops. Voters who use grace period registration may not vote at the polls on Election Day, but may vote using special procedures established at the discretion of the local election authority. 10 ILCS 5/4-50; 5-50; 6-100; Pamphlet, Registering to Vote in Illinois. These procedures may include, but need not include, both in-person or absentee voting procedures. 10 ILCS 5/4-50; 5-50; 6-100. Grace period ballots are not counted at precinct polling places like other ballots, but must be counted at the local election authority's central ballot-counting location.

Military voters

Voters who appear at the polls and produce "satisfactory evidence" that they were employed by the military within the last sixty days before the election shall be allowed to vote without registration if they are otherwise qualified. 10 ILCS 5/4-23; 6-67.01. However, to fit into this exception, the military voter must execute an affidavit stating that he or she is qualified to vote and did not have time to register due to military service. The affidavit must be accompanied by the affidavit of another voter who swears the military voter is qualified to vote.

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Voter Registration and Database Management

3. What process, if any, is the state following in matching voter records in its statewide registration database against Social Security and state motor vehicle records?

Illinois is making some effort to verify registration applications against information provided by the Illinois Department of Motor Vehicles, Department of Public Health, Department of Corrections, and the federal Social Security Administration. However, this effort is in the beginning stages and there are currently no statewide uniform rules governing this process.

Until uniform rules are established, local election authorities may be using their own procedures consistent with 10 ILCS 5/1A-16, which states that local election authorities "shall promulgate procedures for processing the voter registration form[s]." One survey nonetheless identifies Illinois as generally intending to use the "substantial match standard." Justin Levitt, et. al, Making the List: Database Matching and Verification Processes for Voter Registration, Brennan Center for Justice, Voting Rights & Elections Series, IL-2 (Mar. 2006). The basis for making this statement is unknown. If an applicant is not matched but otherwise eligible, registration is maintained but the voter will have to show identification on Election Day. Id.

An April 1, 2006 HAVA Plan memorandum indicates that the State Board of Elections has entered into agreements with the above-listed agencies for the purpose of verifying driver's license numbers, social security numbers, and other information submitted on registration applications (see page 7 of memorandum).

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4. If a new voter registration card is rejected because the information it contains is slightly different than the information contained in other state databases concerning that same voter (suppose the bureau of voter vehicles has the name of the driver with that license number as "Andrew Smith" whereas the voter registration card with that license number provided as ID says "Andy Smith"), what opportunity does the voter have to correct that error, and will a provisional ballot cast by that voter count?

It is not clear that registration cards will be rejected if they differ slightly from information used in the verification process (see question 3). However, assuming the cards would be rejected, the voter should receive notice of the rejection and the reasons for rejection. 26 IL ADC 216.60; 26 IL ADC 216 EXH. D. The voter must submit another application to correct the defect.

Upon successful registration, the voter should receive a Voter ID card indicating successful registration. 26 IL ADC 216 EXH. D.

The only rule governing disposition of registration applications is that a registration application will be processed if it is "sufficient on its face to cause the applicant to be listed among the voters of the jurisdiction…" — otherwise it will be rejected. 26 IL ADC 216.70. Illinois can be expected to enact more detailed procedures as its implementation of its statewide voter registration system continues.

For information regarding whether a provisional ballot cast by such a voter would be counted, see question 5 (to be answered in a later installment of this article).

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5. If a provisional ballot is rejected because the voter is unregistered according to records in the state's new centralized voter registration database, what additional procedures (if any) must state officials undertake to see if the omission of this voter from the database is erroneous? (For example, must the state election officials double-check with the state's bureau of motor vehicles to determine if any new registration forms, although submitted by the voter on time, were delayed in being transmitted to the board of elections?)

To determine whether a provisional voter is registered, officials must look at information culled from the voter (including any supplementary information submitted by the voter within two calendar days of the election), the election judges, the statewide voter registration database, the records of the county clerk or board of election commissioners, and the records of the Secretary of State.  ILCS 5/18A-15. 

Officials must identify and record whether this information is available and, when it is, they must “seek to obtain” it until they become “satisfied,” based on at least one of the above sources, that the voter is registered.  Id.  Conflicts amongst the sources are resolved based on the totality of the circumstances.  If theinformation equally supports and opposes valid registration, then the voter shall be deemed validly registered.    If either the statewide voter database or the records of county clerk support proper registration and the other does not, then the voter is deemed properly registered.

Beyond the sources of information described above, there is no requirement that officials communicate with any outside entity or search any other records. 

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6. Before rejecting a provisional ballot on the ground that the voter is unregistered according to records in the state's new centralized voter registration database, what procedures (if any) does the state have for requiring its officials to check whether the voter is listed in the database under slightly different information than provided on the provisional ballot (for example, "Andy" instead of "Andrew"; middle name instead of middle initial; 125 Elm "Street" instead of 125 Elm "Road")?

No publicly available information is available regarding this topic.

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7. If a provisional ballot is rejected because the signature on the ballot does not match the signature in the state's centralized voter registration database, does the state have any objective standards for making this signature-mismatching determination?

Probably not. 

The law does not describe what method should be used to compare provisional ballot application signatures with those on file.  However, in the context of regular voting signature comparisons, it seems clear that officials merely “eyeball” the signatures.  The statute does not direct officials to use any kind of technology or expert to compare the signatures, but merely indicates that the judges shall allow the person to vote if they are “satisfied” based on the signatures that the person is who he or she claims to be.  10 ILCS 5/4-22.  There is no reason to think that a different procedure applies to provisional ballot comparisons.

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8. What opportunity in general does a voter have to determine whether the submission of a new registration form has successfully resulted in the voter's inclusion in the state's database of registered voters and, if the voter learns that the submission was unsuccessful, to rectify the problem before Election Day (thereby enabling the voter to cast a regular rather than provisional ballot)?

Voters should receive mail notice of acceptance or rejection of their registration applications. 26 IL ADC 216.60. If the application is rejected, the notice will include the reason why it was rejected. 26 IL ADC 216 EXH. D. The voter must submit another application to correct the defect. If the application was accepted, the voter should receive a Voter ID card indicating successful registration. 26 IL ADC 216 EXH. D.

Unlike some states, Illinois does not have a statewide database of registered voters available on the internet. However, Cook County, Champaign County, and possibly others have taken it upon themselves to provide this information. In addition, voters may search computer records by appearing in person at the State Board of Elections main office in Springfield. 10 ILCS 5/1A-25.

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9. If it is determined that a new voter registration card was not included in the state's database of registered voters because of an error committed by a third-party registration group (for example, the group failed to deliver the card on time), will a provisional ballot cast by the voter count?

No. 

Provisional ballots will not be counted unless the voter was registered.  10 ILCS 5/18A-15.  Registration applications received within twenty-seven days of an upcoming election will not be effective for that election.  10 ILCS 5/4-6; 5-5; 6-29; 2005 Election Handbook, page 4.  No exception could be found for when a third-party registration group, rather than the voter himself, causes a registration attempt to fail.

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10. (A) When will a voter's registration be canceled?

The Illinois administrative rules state that voter registrations may be canceled only in five situations: cancellation at the request of the voter, cancellation for criminal conviction, cancellation for mental incapacity, cancellation for death, cancellation for change of address. 26 IL ADC 216.50; 42 USCA s 1973gg-6(a)(3). However, the same administrative rule indicates a registration may be cancelled when officials learn a voter is not qualified to vote. Furthermore, the Illinois code provides for cancellation for failure to vote and cancellation after the accidental destruction or loss of registration records. The code permits special investigation and canvassing procedures to help officials determine who should be cancelled.

The State of Illinois has previously admitted in court that it cancels voters' registrations for reasons other than those permitted by the NVRA. Association of Community Organizations for Reform Now v. Edgar, 880 F.Supp. 1215, 1224 (N.D.Ill. 1995). That admission and other failures to comply with the NVRA led to an injunction ordering the state to comply with the NVRA. Association of Community Organizations for Reform Now v. Edgar, 56 F.3d 791, 797 (C.A. 7, 1995).

By request of voter

Officials will cancel a voter's registration upon request. 10 ILCS 5/4-8; 26 IL ADC 216.50. A written acknowledgement by the voter that he or she has moved from the jurisdiction will be construed as a request for cancellation, as will any attempt to register in another jurisdiction. The statute does not provide for notice confirming the registration has been cancelled.

Upon criminal conviction

A voter's registration will be canceled upon receipt of a notice that the voter has been incarcerated for a felony conviction. 10 ILCS 5/6-55; 26 IL ADC 216.50. The statute does not explicitly provide for notice.

Mental incapacity

Although 26 IL ADC 216.50 permits officials to cancel registrations for mental incapacity, no procedure for doing this was found.

Cancellation upon death

The Illinois Department of Health, Office of Vital Records periodically files with each county clerk a list of recent deaths of persons residing in that county. 410 ILCS 535/1 et seq. The county clerk must examine these records each month and cancel the registrations of all newly deceased voters. 10 ILCS 5/4-14.1; 5-9.1; 6-55. See also 26 IL ADC 216.50. Unlike in some other states, the statute does not provide for notice confirming the cancellation.

Voter not qualified

Upon receipt of a certified copy of a court judgment in which it was found that the voter lacked qualifications to vote — either at the time of the judgment or at the time the voter registered — officials will cancel the voter's registration. 26 IL ADC 216.50. This may cause a voter's registration to be cancelled for lack of citizenship, in-state residency, lack of sufficient age, or other problems. The statute does not explicitly provide for notice.

Bad address/change of address

Cancellation after change of address

In counties of less than 500,000 residents that have not elected to use the special procedures outlined by Illinois' City Election Law, precinct registration locations shall notify the county clerk of any voters the precinct registration location knows has moved or has a basis for believing has moved from the precinct. 10 ILCS 5/4-14. This notice shall be treated as an application to remove the voter from the rolls (a challenge procedure described in question 17). The county clerk will set a hearing and send notice to the voter to appear at the hearing and defend his or her right to vote. If the voter does not successfully defend, the county clerk will cancel the registration.

There is a similar procedure for when the county clerk obtains change of address information from utility companies, government records, the post office or other sources. 10 ILCS 5/4-8; 4-12; 4-16.

Cancellation after canvass of voters lacking permanent residence

At least forty-nine days before the election, the county clerk shall send a request for confirmation of address to all registered voters who lack a permanent residence. 10 ILCS 5/4-18.01; 5-25.01; 6-59.01. If the voter does not respond by mailing back a pre-stamped postcard on or before the twenty-sixth day before the election, his or her registration will be cancelled.

Cancellation after failure to respond to registration confirmation

Upon registration or transfer of registration, the county clerk shall send a certificate to the voter confirming the information contained in the registration file. 10 ILCS 5/4-15; 5-21; 6-57. If the notice is returned undeliverable, the county clerk will send a notice to the same address requiring the voter to appear before the county clerk within five days and answer questions regarding registration. If the voter does not appear or fails to show he or she should be registered, the clerk "shall mark his registration card as incomplete and he shall not be permitted to vote until his registration is satisfactorily completed." 10 ILCS 5/4-15. In counties of 500,000 people or more, the registration will not be marked incomplete; it will be canceled. 10 ILCS 5/5-21.

Cancellation for failure to vote

Every four years, the county clerk shall send notice to all voters who have not voted during those four years informing them that their registrations will be canceled unless they apply for reinstatement within thirty days. 10 ILCS 5/4-17; 5-24. The clerk will cancel the registrations of those voters who do not respond. However, those voters may simply re-register by the applicable deadline if they desire to vote. Also, the clerk will reinstate the old registration at any time within two years of the initial cancellation if "there is sufficient subsequent showing that he is a duly qualified elector." Id.

This procedure began in 1946 and repeats every four years, so that it should occur after the 2006 and 2010 elections. 10 ILCS 5/4-17. However, in counties of 500,000 or more, it began in 1944 and should occur after the 2008 election. 10 ILCS 5/5-24. For jurisdictions using the City Election Law, the procedure began in 1940 and should occur after the 2008 election. 10 ILCS 5/6-58.

Cancellation after loss or destruction of registration records

When voters' registration records are lost or destroyed, the county clerk shall mail them a notice requesting they execute a new registration affidavit. 10 ILCS 5/4-19; 5-26; 6-64. The clerk shall cancel the registrations of voters who fail to execute an affidavit within thirty days of receiving the notice.

Cancellation after investigation

Required investigations

The Illinois code requires the county clerk to conduct at least one canvass every two years. 10 ILCS 5/4-30; 5-25. The clerk may perform this canvass by appointing two agents of opposite parties to physically canvass the area, by sending out non-forwardable written requests for verification of address, or by any other method submitted in writing and approved by the State Board of Elections. If any of these methods cause the clerk to believe a person is no longer qualified to vote, the clerk will schedule a cancellation hearing and send notice as described in the previous paragraph.

In Cook County and other counties with a population of 500,000 or more, following the close of registration officials will physically canvass each precinct, inquire at each residence listed in the registration lists, and attempt to determine whether each voter registered should remain registered. 10 ILCS 5/5-11; 5-17. Officials will record the names of all voters who no longer live at the residence on file and will send a notice to those residences requiring the voters to appear and show cause why they should not be removed from the rolls. 10 ILCS 5/5-12. This procedure is also followed by jurisdictions that have elected to follow Illinois' "City Election Law," a special set of election laws. 10 ILCS 5/6-39; 6-40. If the challenged voter does not appear at the hearing, his registration will be cancelled. 10 ILCS 5/6-41.

In jurisdictions that have bound themselves to the special procedures outlined in Illinois' City Election Law, nursing homes, hotels, boarding houses and certain other residences must file reports with officials listing information regarding residents of each nursing home. 10 ILCS 5/6-56. Unless the local election authority has decided to do a physical canvass of precincts that year, officials will compare this list with the official voter registration list for address and name discrepancies. Voters whose records show a discrepancy will be sent a notice requiring them to appear and show cause why their registrations should not be cancelled. Voters whose names are removed may make an appeal "as in other civil cases." 10 ILCS 5/6-56; 6-47.

Discretionary investigations

In jurisdictions with less than 500,000 residents that have not enacted Illinois' City Election Law, the county clerk may investigate or "canvass" registration lists. 10 ILCS 5/4-18. If a clerk finds any registered person is not a qualified voter, the clerk shall mail a notice requiring the person to appear within five days and show cause why the registration should not be cancelled. If the person does not appear for the hearing, the registration will be cancelled. If the person does appear, he or she shall execute an affidavit swearing to be registered and eligible. However, the statute does not state that signing such an affidavit precludes the clerk from finding the person is not registered and eligible and canceling the application. Any individuals employed by the clerk as "canvassers" during this process are governed by the same rules that apply to election judges.

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10. (B) What is the last date before an election on which state officials may purge voters from their voter registration database?

A review of Illinois statutes and regulations reveals no statewide timetable for purging. The wide discretion provided to local election authorities might signify that any time table, if existent, is locally determined and varies among jurisdictions.

The National Voter Registration Act requires states to complete "systematic" cancellation efforts ninety or more days before federal elections, but the Illinois code and administrative rules do not reflect this. 42 USCA s 1973gg-6. However, Illinois provides for systematic removals of names of individuals for change of address as late as forty-nine days before the election, and may conduct other removals after the NVRA deadline. 10 ILCS 5/4-18.01; 5-25.01; 6-59.01.

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10. (C) What kind of notice must the state provide voters before purging their registrations from the database?

The notice required depends on the cancellation procedure used.

Voter registrations may not be cancelled "without following the procedures and providing the notice of suspension or cancellation required" by the NVRA. 26 IL ADC 216.50. As described in part (A), supra, the procedures that cancel registrations for change of address or failure to vote comply with the NVRA by providing notice prior to cancellation. However, the procedures for cancellation due to the request of the voter, death, incapacity, criminal conviction, lack of voter qualifications, or loss or destruction of voter records include no explicit requirements of notice. It is unknown whether officials are actually sending out notice in these situations.

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10. (D) What opportunity must the state give voters to challenge the purge of their registration (either prior to Election Day, or during the process of reviewing provisional ballots)?

The opportunity voters have to prevent the purge depends on the reason for the purge (see part (A), supra). The opportunity is generally limited to those situations in which voters receive notice prior to cancellation, as in the procedures canceling registrations for change of address or failure to vote. In some cases, there may be no notice or opportunity to prevent the purge, although the voter may re-register.

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11. What procedure has the state adopted to notify voters whether their provisional ballots were counted; what procedures if any has the state adopted to notify the public of the percentage of provisional ballots that have been rejected as ineligible and the specific ground for this rejection?

Officials must establish a “uniform free access information system” to allow voters to determine whether their provisional ballots counted and why.  10 ILCS 5/18A-20.  When voters cast provisional ballots, election judges must give them written notices that describe the free access system.  10 ILCS 5/18A-5.  Voters may determine whether their ballots counted either by calling the State Elections Board at 1-866-513-1121 or by searching the Board’s website using a special identification number associated with their provisional ballots.

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12. What types of regulations apply to third-party organizations and individuals who wish to help register voters?

Third-party registration organizations must register with the state and obtain appointments and training for all registration workers. The Illinois code and administrative regulations do not contain explicit rules for individuals working alone to help register voters. It is unclear whether such individuals must become appointed deputy registrars before engaging in registration activity.

Certification of third-party registration groups

Third-party voter registration groups, before engaging in registration activity, must become certified as "bona fide" registration groups; Deputy Registrar Guidelines, page 3. Applications for certification must be received ninety or more days before the election, and will be processed within seven days. Applications must state that the organization has an interest in registering voters and desires to certify its members as deputy registrars, must describe how the organization is qualified to perform this task, must include a copy of the organization's charter or other foundational documents, and must list the addresses and telephone numbers of all the organization's offices within the state and all the organization's principal officers (including information regarding parent organizations, if any). 26 IL ADC 207.50; Daniel White's memo re: Application for Certification as a "bona fide State civic organization". These rules do not apply to "bona fide labor organizations." Deputy Registrar Guidelines, page 3. Deputy Registrar Guidelines, page 4.

To qualify as a bona fide registration group, the group must meet the following requirements:

  1. The organization's articles of incorporation or other foundational documents must state that one of the purposes of the organization is to increase participation in government;
  2. The organization must conduct its activities primarily within Illinois;
  3. The organization must be a not-for-profit organization;
  4. The organization must maintain an office and telephone number in Illinois;

26 IL ADC 207.50; Daniel White's memo re: Application for Certification as a "bona fide State civic organization". If the organization files a proper application and meets all of these requirements, the State Board of Elections shall certify the organization. Id. If the State rejects the application, it will notify the organization in writing and state the reasons for rejection. Notified organizations may dispute the determination by requesting and attending a hearing before the Board of Elections at which the organization may present and be asked to present evidence on the issue. Id. The Board may suspend an organization's certification upon determining the organization no longer satisfies the above requirements, in which case the organization will receive written notice and may request a hearing in front of the Board.

Appointment and training of deputy registrars to help register voters

Furthermore, before having its individual members engage in registration activity, bona fide registration groups must obtain appointments for those individuals so they may serve as deputy registrars. 10 ILCS 5/4-6.2; 5-16; 6-50. The election authority may limit the number of appointments to a reasonable number. The State Board of Elections has instructed officials to take the following facts into consideration when determining whether and how much to limit appointments: population of the jurisdiction, size of the third party registration organization, geographic size of the jurisdiction, convenience to the public, the location of existing deputy registrars, existing number of deputy registrars in the jurisdiction, existing number of registrars in the organization, the need to appoint deputy registrars to assist with the registration of non-English speaking individuals; the goal, in terms of registration activities, of the organization. When officials deny the application of an organization seeking to have its members appointed, officials shall send notice within ten days explaining the reason for the denial. 10 ILCS 5/5-16.2; Deputy Registrar Guidelines, page 6. When officials appoint deputy registrars from political parties, they must appoint an equal number to each of the two major political parties. Deputy Registrar Guidelines, page 6. Appointments of deputy registrars generally expire after two years, with some exceptions. 10 ILCS 5/5-16.2; Deputy Registrar Guidelines, page 6.

Deputy registrars must complete special training under the local election authority. 10 ILCS 5/5-16.2.; Deputy Registrar Guidelines, page 7. Training should include information about office procedures used to process registration applications, explanations for changes of voters' names and addresses, voter eligibility, deadlines for submitting completed applications, and other matters. Deputy Registrar Guidelines at 7, 8.

Deputy registrars may be removed for cause. 10 ILCS 5/4-6.2(b), 5-16.2(b), 6-50.2(b).

Rules for submitting completed voter registration forms

At least in counties with 500,000 residents or more and counties that use the Illinois' City Election Law, deputy registrars must return completed registration forms to the appointing election authority within seven days. 10 ILCS 5/5-16.2; 6-35.03. However, completed registrations received within a week of close of registration must be submitted within forty-eight hours. Deputy registrars may not promote any candidate or cause while registering voters.

Third-parties that submit applications on behalf of others should submit the applications together with a form called the Voter Registration Application Transmittal. 26 IL ADC 216.70. While applications submitted without the form will be processed, they will be processed as mail-in applications, precluding the voter from using the mail-in absentee voting procedure.

Limitation on voter registration events

Voter registration events must focus exclusively on voter registration and may not be combined with electioneering or campaigning. Deputy Registrar Guidelines, page 4.

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Identification

13. What is the last date for the submission of new registration forms, and what ID must be submitted with these forms?

The type of ID required depends on whether the voter registers in person or by mail.

Registration in person

To register in person, voters must present two forms of identification. 10 ILCS 5/4-10; 5-9; 6-37; Deputy Registrar Guidelines, page 11. One of these must contain the voter's address, unless the voter is homeless. Acceptable forms of identification "include, but are not limited to," the following:

  1. driver's license;
  2. social security card;
  3. public aid identification card;
  4. utility bill;
  5. employee or student identification card;
  6. credit card;
  7. civic, union, or professional association membership card.

Id; Pamphlet, Registering to Vote in Illinois.

Homeless individuals need not have a current address on their identification, but must have some proof of residence. This may include a piece of mail or a "statement from a person authorizing use of the mailing address…." 10 ILCS 5/3-2; 4-10; 5-9; 6-37.

Registration by mail

Voters who register using this procedure must send in with the completed application either (i) a copy of a current and valid photo identification or (ii) a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter. 10 ILCS 5/1A-16; Pamphlet, Registering to Vote in Illinois. Voters who do not include this information will have to present it at the polls.

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14. What ID must be submitted at the polls to cast a regular rather than provisional ballot?

Only early voters and first-time voters who registered by mail have to present identification.  In other cases, all that voters must do to obtain a ballot is provide a signature that officials are able to match with the one contained on the voter registration card or precinct register.  10 ILCS 5/4-22, 5/5-29, 5/6-66.

First-time voters who registered by mail

Pursuant to HAVA, with certain exceptions first-time voters who registered by mail will have to present some form of identification unless they submitted it already with their registration applications.  10 ILCS 5/1A-16.  Any of the following forms of identification are acceptable:  A copy of current and valid photo identification, a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.  Id.; 42 U.S.C.A. 15483(b)(1).

Early voters

Voters who wish to use Illinois’ early voting procedure must present one of the following to obtain an early ballot:  “an Illinois driver’s license, a non-driver identification card issued by the Illinois Secretary of State, or another government-issued identification document containing the applicant’s photograph.”  10 ILCS 5/19A-35. 

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15. What ID is necessary to receive an absentee ballot? What ID must be submitted when casting an absentee ballot in order for it to count?

Generally, no identification is required to receive or to cast an absentee ballot. 

However, individuals who registered by mail and are voting for the first time may not cast a mail-in absentee ballot at all.  10 ILCS 5/4-105; 5/5-105; 5/6-105.  Still, they may vote an absentee ballot in person if they first provide officials “with sufficient proof of identity by the person's driver's license number or state identification card number or, if the person does not have either of those, by the last four digits of the person's Social Security number, a copy of a current and valid photo identification, or a copy of any of the following current documents that show the person's name and address: utility bill, bank statement, paycheck, government check, or other government document.”  Id.

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Eligibility

 

16. In what circumstances if any are previously convicted felons eligible to vote?

The Illinois Constitution expressly disenfranchises those convicted of felonies or otherwise "under sentence in a correctional institution." ILCS Const. Art. 3, § 2; Jones v. Edgar, 3 F.Supp.2d 979, 980 (C.D. Ill. 1998). However, voting rights are restored automatically following completion of sentence. 730 ILCS 5/5-5-5. Voting rights are not automatically restored for those on furloughs or work release programs. 730 ILCS 5/3-11-1; 3-13-2.

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17. In what circumstances, either prior to or on Election Day, may the eligibility of a registered voter be challenged by another voter or by an election officials? If challenged, what opportunity does the registered voter have to defend his or her eligibility, and is the consequence of an unsuccessful defense the obligation to cast a provisional ballot, or the denial of any ballot altogether?

Before an election, challenges may be filed by any voter against any other voter. In this case, challenged voters may defend themselves by appearing at a hearing scheduled by the clerk. At the polls, challenges may be brought by pollwatchers and election judges. Voters challenged on Election Day may defend themselves by answering questions to the satisfaction of the judges or, if that is unsuccessful, by signing an affidavit and providing either identifying documents or affidavit evidence of qualifications to vote. Voters who cannot overcome a challenge may cast a provisional ballot.

Challenges before Election Day

Any registered voter may file an application with the county clerk to remove the name of any other registered voter. 10 ILCS 5/4-12; 5-15; 6-44. The challenger must swear the challenged voter is not qualified and state why. The clerk shall set a time and place for a hearing in front of the clerk, and shall mail notice to the challenged voter at least four days before the hearing. The challenging voter shall also receive notice. If the challenger does not appear for the hearing or does not show that the challenged voter's registration should be removed, the clerk may dismiss the challenge. If the clerk decides to remove the registered voter from the rolls, the voter may appeal to the circuit court. 10 ILCS 5/4-13; 6-47; 6-52. The statutes do not contain a provision enabling the circuit court appeal in counties of 500,000 that have not elected to use a special set of election laws known as the City Election Law.

Challenges on Election Day

Pollwatchers may challenge a person's right to vote for cause. 10 ILCS 5/7-34; 17-23; Gribble v. Willeford, 190 Ill.App.3d 610, 617 (Ill.App. 5 Dist., 1989). The statute does not explicitly state that election judges may also challenge voters, but that may be the case. When challenging voters, pollwatchers must state a specific reason for the challenge. Guide for Pollwatchers, page 10. Legitimate reasons for bringing a challenge include: the voter no longer resides at the registered address, the person attempting to vote is an impostor, the person attempting to vote has already voted, or the person is not registered to vote. Id. In addition to challenging a voter at the polls, challengers may at the time the ballot is counted attack a ballot cast by these voters for any of the following irregularities: the mark indicating the voter's choice on an issue or candidate is not "valid" (the Guide for Pollwatchers gives pictorial examples of valid and invalid marks), the ballot has been marked to identify the voter who cast it, the ballot has not been initialed by an election judge. Id. At this time, absentee ballots may be challenged for any of the following reasons: the certificate on the ballot envelope is incomplete, the signature on the ballot does not correspond with that on file, the person is not a qualified voter, the voter has already voted, or the ballot envelope has been opened and resealed. Id.

Although a pollwatcher may initiate the challenge, only a majority of election judges can sustain it. Guide for Pollwatchers at 16; 10 ILCS 5/18-5. At least in jurisdictions that have elected to use the procedures outlined in Illinois' City Election Law, election judges will question the voter under oath regarding his or her identity and qualifications to vote, and will then decide whether the challenged is sustained. 10 ILCS 7/18-5. The pollwatcher may also ask questions, at least under the City Election Law procedure. A voter who is successfully challenged may still cast a regular ballot if the voter signs an affidavit affirming proper qualifications and either (A) presents two forms of identification showing current address or (B) obtains a supporting affidavit signed by a registered voter in the same precinct. 10 ILCS 5/7-45; 17-9; 17-10; 18-5. A voter who does not fulfill these requirements may cast a provisional ballot. 10 ILCS 5/18A-5.

The ability to challenge absentee ballots includes the ability to challenge when a voter casts an in-person absentee vote or early vote. 10 ILCS 5/19-10; 19A-60; Guide for Pollwatchers at 13. It probably also includes the ability to challenge when a voter casts a grace period vote, because grace period voting is conducted in a manner "substantially similar" to other types of voting. 10 ILCS 5/6-100.

For rules concerning the appointment of pollwatchers, see question 24, infra.

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Absentee/early voting

 

18. What if any specific need must a voter assert in order to receive an absentee ballot (or to vote early)? What are the earliest and latest dates by which a voter can submit an absentee ballot by mail, or in person?

Absentee voting

Voters seeking to vote absentee must assert one of the following reasons:  They expect to be absent from their counties of residence on Election Day; they will serve as election judges in a precinct other than the one in which they live; they are physically unable to get to the polls; they are observing a religious holiday or religious principles prevent them from going to the polls; they cannot get to the polls due to their duties working for one of the various government offices that conduct elections; they have jury duty; they are students who are away from their homes due to school; they are prisoners awaiting trial; they are government employees who used to live in the jurisdiction but had to move due to their employment.  10 ILCS 5/19-1, 19-5; 2006 Absentee Voting pamphlet.

Absentee ballots generally must be received by officials before the closing of the polls on Election Day to count.  10 ILCS 5/19-8; 2006 Absentee Voting pamphlet.  However, mailed-in absentee ballots received after the close of polls will be counted if postmarked by midnight the day before the election and received before the period for counting provisional ballots cast at that election, which is fourteen days after the election.  10 ILCS 5/19-8; 18A-15.

Individuals casting an absentee ballot in person may cast it starting on the twenty-second day before the election up to and through the day before the election.  10 ILCS 5/19-2.1.

Early voting

Illinois allows voters to vote early without providing any reason.  10 ILCS 5/19A-5; 2006 Early Voting Pamphlet.  Early voting can occur starting the twenty-second day before the election up to and including the fifth day before the election.  10 ILCS 5/19A-15.

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19. If it were discovered that supporters of the winning candidate had paid (or otherwise improperly induced) voters to cast their absentee ballots for that candidate, and the number of "bought" absentee ballots exceeded that candidate's margin of victory, would the state judiciary invalidate the election result and rule the runner-up to be the rightful winner?

Unclear.  There is considerable confusion in this area of law.  The question may depend on whether the challenge is brought as an action in quo warranto or as a traditional election contest.

Quo warranto action

In a quo warranto action, any remedy would be provided at the discretion of the court.

Quo warranto is one proper procedure to oust an incumbent who has illegally obtained a public office.  735 ILCS 5/18-101; City of Highwood v. Obenberger, 238 Ill.App.3d 1066, 1079 (Ill.App.2d, 1992).  In a quo warranto proceeding, the burden of proof lies on the defendant, not the plaintiff, to show that the defendant is entitled to the disputed office.  People ex. rel. Ryan v. Village of Hanover Park, 243 Ill.App.3d 515, 521 (Ill.App. 1 Dist., 1999).  Though no cases could be found that parallel the situation described above, the vote-buying candidate, who obtained office through outright fraud, would not be able to meet his or her burden of proof in a quo warranto action and the court would be empowered to remove him or her.  735 ILCS 5/18-108. 

However, this does not necessarily mean that the runner-up would be installed into office.  Remedies in quo warranto come at the discretion of the court, which must consider the public interest in prescribing a remedy.  People ex. Rel. Adamowski v. Wilson, 170 N.E.2d 605, 611 (Supreme Court of Illinois, 1960).  Instead of installing the runner-up, the court might decide to hold a special election to fill the office.  Theoretically speaking, the court might even decide to use its discretion to keep the vote-buying incumbent in office, but this seems extremely unlikely considering how it might injure the public’s faith in government.

Election contest

In an election contest, the court would probably install the runner-up in office.

Though no cases could be found considering whether quo warranto was the exclusive remedy for testing title to public office, case law holds that it is not the exclusive remedy for testing title to private office—a rule that might carry over into the public domain, since the statute does not treat the two situations differently with respect to the exclusiveness of the remedy.  Watson v. Waste Management of Illinois, Inc., 363 Ill.App.3d 1101, 1105 (Ill.App. 3 Dist., 2006) citing Department of Disabled Am. Veterans v. Bialczak, 349 N.E.2d 897, 900 (Ill.App. 1976).  This means that, in addition to quo warranto, an election contest is an equally appropriate remedy.

In an election contest grounded upon an allegation of illegal voting, the contestant bears the burden of showing that the contested votes were illegal and that they were sufficient to change the results of the election.  Jordan v. Officer, 170 Ill.App.3d 776, 788 (Ill.App. 5 Dist., 1988).  Under the facts described above, the contestant should have no problem meeting this burden of proof, assuming that all of the evidence is presented.  Upon that showing, the court shall install the rightful candidate into office.  10 ILCS 5/23-26.

10 ILCS 5/23-29 provides that in an election contest, the judiciary will not install the runner-up, but will invalidate the entire election.  However, this provision only applies in an action where the person who receives the highest number of legal votes is found not to possess the qualifications necessary to hold office.  That is different than the situation described above, where the vote-buying candidate only receives the highest number of votes when illegal votes are included in the total.  For that reason, this provision poses no barrier to installing the runner-up into office.

Contests for state senate and house of representatives

In these contests, the senate or house of representatives will make their own determination of the winner.  10 ILCS 5/23-2.

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20. (A) What are the procedures for counting absentee/early ballots, as opposed to regular ballots?

Absentee ballots and early ballots shall be counted in a central ballot-counting location established by local authorities.  10 ILCS 5/19-8; 10 ILCS 5/19A-50; 10 ILCS 5/19A-25.5.

Counting of absentee ballots will begin after 7 p.m. and no later than 8 p.m.  10 ILCS 5/19-8.  It shall be conducted by a panel or panels of appointed election judges.  The counting shall continue without stopping until all ballots are counted.

Counting of early ballots will not begin until the close of polls.  10 ILCS 5/19A-25.5; 2006 Early Voting pamphlet.

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20. (B) Who, if anyone, can observe the counting of absentee ballots?

Appointed pollwatchers may observe the counting of absentee ballots at the central counting office.  10 ILCS 5/19-10; 10 ILCS 5/24B-13; 2006 Pollwatcher’s Guide, page 7. 

These pollwatchers may also be present at the polling place on Election Day when absentee ballots are received, and may challenge the ballots for cause just as if the voter had voted in person.  10 ILCS 5/24B-13.  However, if the challenge is sustained by the election judges, notice must be mailed to the voter’s residence.  Pollwatchers may also observe the casting of in-person absentee ballots.  10 ILCS 5/19-10. 

The statutes do not state that people other than pollwatchers shall be excluded from the central counting office.  However, the fact that the legislature found it necessary to specifically indicate pollwatchers are allowed into the office may indicate that other people are not.

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20. (C) On what grounds may election officials reject an absentee ballot as ineligible for counting?

Absentee ballots will be counted unless they suffer from one of eight defects:

1.  Officials compare the signature on the certification envelope with the signature on file, and determine that the two signatures do not match;

2.  Officials determine that the voter is not qualified to cast an absentee ballot;

3.  The ballot envelope is open or has been opened and resealed;

4.  The voter has already cast an early or grace period ballot;

5.  The voter has already cast a ballot in person on Election Day;

6.  The voter is not registered in the precinct;

7.  The voter has died since he or she cast the absentee ballot;

8.  The ballot should not be counted for “any other basis set forth in this Code.”

10 ILCS 5/19-8; 19-11.  No defects falling into the catch-all provision (#8) were found in the code.

Like absentee ballots, early ballots will be rejected if the voter dies between the time when the ballot is cast and Election Day.  10 ILCS 5/19A-65.  However, unlike absentee ballots, there are no further rules governing the counting of early ballots, except those that apply to the counting of ballots generally.    

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20. (D) What notification, if any, must the election officials provide—either to the voters who cast these ballots or to the public—that these absentee ballots were rejected?

A voter whose absentee ballot was rejected must be notified within two days after the rejection.  10 ILCS 5/19-8.  The notice must state the reasons for rejection.  In addition, the State Board of Elections will compile statistics showing the number of absentee ballots cast, counted, rejected, and disputed using the procedure described in question 21, below.  10 ILCS 5/19-20.

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21. What pre-certification procedures, if any—in other words, separate from post-certification judicial contest of the outcome of the election itself—exist for disputing the exclusion of absentee ballots?

If an absentee ballot is rejected, voters have a right to notice and a hearing to dispute its rejection.

A voter whose absentee ballot was rejected must be notified within two days after the rejection.  10 ILCS 5/19-8.  The notice must state the reasons for rejection.  The voter may then appear before a three-judge panel on or before the fourteenth day following the election to show the judges why his or her vote should be counted.  The voter may show evidence supporting the validity of the ballot.  In making its decision, the panel must consider the contested ballot, application, and certification envelope, and any additional evidence presented by the voter. 

The panel is appointed by the local election authority and may contain no more than two judges from the same political party.  Id.  The panel’s decision is not reviewable “either administratively or judicially.”  Id.  Each political party, candidate, and “qualified civic organization” may appoint one pollwatcher to observe the conduct of these panels.

If the vote is deemed valid, it will be counted with the other ballots from that precinct before the time expires to count provisional ballots (fourteen days after the election).  Id.

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22. Under what circumstances if any may a voter who has requested an absentee ballot nonetheless cast a regular or provisional ballot at the polling place on Election Day? (Only when the voter has not received the requested absentee ballot, or for another reason, such as the voter wishes to change a vote from one candidate to another?).

A voter who has requested an absentee ballot will only be allowed to vote at the polling place on Election Day if one of the following two situations apply:

1.  The voter presents the ballot to election judges for cancellation;

2.  If the voter is unable to submit the ballot, the voter does one of the following:

(a) The voter submits a portion of a torn or mutilated absentee ballot;

(b) The voter completes an affidavit asserting that (i) an absentee ballot was never received or (ii) an absentee ballot was completed and returned but never received by the election authority.  

10 ILCS 5/17-9, 18-5.  A person issued an early ballot will not be able to vote at the polls on Election Day. Id.

Polling place officials should know whether a person appearing to vote on Election Day has been issued an early or absentee ballot, because each local election authority maintains a list of voters who have been mailed absentee ballots.  10 ILCS 5/19-4.  This list is distributed to each polling place before the opening of the polls.  Officials also distribute a list of registered voters who have voted by early ballot.  10 ILCS 5/19A-5.

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23. What procedures if any does the state have for preventing double-voting by a voter who has cast both an absentee and an in-person ballot?

See question 22.

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24. Who may observe the voting process at polling places on Election Day?

Only pollwatchers. 

Pollwatchers are allowed to “observe all proceedings and view all reasonably requested records relating to the conduct of the election…” 10 ILCS 5/17-23; Guide for Pollwatchers, third page. 

Each established political party and each candidate is entitled to appoint two pollwatchers per precinct. 10 ICLS 5/17-23; Guide for Pollwatchers, pp. 3-4.  In addition, each organization of citizens interested in investigating or prosecuting election frauds may appoint one pollwatcher per precinct.  Organized groups supporting or opposing ballot propositions may also appoint one pollwatcher per precinct. 

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25. What procedures and protocols, if any, does the state have in place to assure that poll workers and other local election officials follow statewide rules uniformly and do not engage in county-by-county, or even precinct-by-precinct, variation in the administration of rules concerning voter eligibility and the counting of ballots?

Illinois trains its election judges and regulates the content of election training materials to attempt to achieve some procedural uniformity across the state.

Election Judge Training

In each county the Board of Election Commissioners or clerk shall establish a training course for judges of elections.  10 ILCS 5/13-2.1; 5/14-4.1.  The course must consist of at least four hours of instruction and an examination that tests reading skills, ability to work with poll lists, ability to add, and knowledge of election laws governing the operation of polling places.  10 ILCS 5/13-2.2.  Failure to attend this course “shall subject such judge to possible removal from office at the option of the election authority.”  10 ILCS 5/13-3; 10 ILCS 5/14-5.

Guidance from State Board of Elections

The State Board must “[d]isseminate information to and consult with election authorities concerning the conduct of elections and registration….”  10 ILCS 5/1A-8.  This includes distributing before each election “a manual of uniform instructions… which shall be used by election authorities in the preparation of the official manual of instruction to be used by the judges of election in any such election.”  Id.  The final manual distributed to local election judges must be approved before use, either by default or by affirmative act, by the State Board.  The final manual is approved by default if the State Board does not approve or disapprove of it within sixty days of submission.

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26. (A) What rules exist determining the number of voting machines?

Each polling place must have one machine for each 400 voters or fraction thereof at all elections.  10 ILCS 5/24-1.  Another code section states that the State Board may prescribe any number of voting machines for the various types of voting systems.  10 ILCS 5/24C-17.  However, as of January 15, 2006, the Board does not have any such regulations on the books.

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26. (B) What rules exist to determine the number of poll workers?

Polling places must have five election judges each. 10 ILCS 5/13-1; 5/13-2; 5/14-1.  In addition, a team of five judges may be appointed where “neither voting machines nor electronic, mechanical or electric voting systems are used….”  Id.  The team must be appointed where the number of registered voters in the precinct exceeds 600.

Furthermore, in addition to precinct judges, officials shall appoint a number of special three-judge panels.  Id.  The number is determined by State Board of Elections regulations and is tied to the number of registered voters and the number of absentee ballots voted at recent elections.  However, as of January 14, 2007, the State Board has no such regulations on the books.

Judges may leave the polling places during voting hours, but only one judge at a time, and only “when necessary…”.  10 ILCS 5/17-17.

In counties that have Boards of Election Commissioners

In a county that has a Board of Election Commissioners, the Board may appoint an additional two election judges per precinct for each group of 200 voters in excess of 600 in that precinct.  10 ILCS 5/14-1.  There is no analogous provision in the code sections dealing with counties that do not have such Boards.

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26.(C) What rules exist to determine the number of provisional ballots?

No information could be found regarding this topic.

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26. (D) What additional procedures, if any, are in place to avoid long lines at polling places?

Voters may not occupy a voting booth for more than five minutes if there are other voters waiting, and may not occupy a booth for more than ten minutes under any circumstances.  10 ILCS 5/17-11.  A separate provision states that voters may not occupy a booth that contains a voting machine for more than four minutes.  10 ILCS 5/24-8.

Some individual voting district election judge handbooks specifically state that voters standing in line at closing time must be allowed to vote.  See City of Chicago 2006 Judge of Election Handbook.  However, no basis in law could be found for this assertion.

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26. (E) What contingency plans are in place if poll workers are unable to get voting machines to work according to their instructions? If poll workers do not report for duty on Election Day?

Where voting equipment breaks down, officials will repair or replace it immediately or, where that is not possible, will issue paper ballots to incoming voters.  10 ILCS 5/24-11.  Officials may purchase as many extra voting machines as they deem necessary for replacement purposes, and will supply enough paper ballots to allow 20% of the registered voters in the precinct to use.

When equipment breaks down, officials will re-test it before resuming its use.  26 IL ADC 207.120.  If the machine fails re-test, it shall not be used until officials determine what caused it to fail, even if subsequent tests show the machine to be working properly.  If no cause can be determined, the machine must be replaced with another that is tested before use.

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27. What rules are in place to ensure that disabled voters are able to cast a ballot at their polling places on Election Day?

All Illinois polling places must be accessible to the handicapped and elderly, with two exceptions:  in an emergency that forces a last-minute change of polling places; when there is no accessible place available and an available place cannot be made accessible.  10 ILCS 5/11-4.2.  The second exception is available only where officials help affected voters by either re-assigning them to an accessible voting place or making special arrangements (such as curbside voting) upon advance notice.  Requests for curbside voting must be made no later than the close of business the day before the election.  10 ILCS 5/17-13; 26 Ill. Adm. Code 209.70.  The definition of “accessible” is provided by 26 Ill. Adm. Code s 209.30, and contains prescriptions for access ramps, parking, doorways and entrances, elevators, and other important features.

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28. In the event that problems arise on Election Day, who determines whether to keep polls open later than originally planned and what rules, if any, guide this determination?

No black-letter law or administrative materials could be found on this topic.  However, in the 2006 general elections, a Kane County judge ordered polls to stay open later when poll workers’ lack of familiarity with voting machines caused significant delays in some precincts.  High court lets extended vote stand, Chicago Tribune, November 16, 2006.  The case was appealed all the way to the Illinois Supreme Court, which affirmed the trial court’s judgment.

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29. (A) What rules if any does the state have to require election officials to notify voters of their correct polling places?

Officials must notify voters through the press or by posting public notices.

In general

Thirty days before any general election, the county clerk is required to publish notice of the election and where it will be held.  10 ILCS 5/12-1.  This notice has to be published in two newspapers of general circulation within the jurisdiction.  If a polling place is changed 10 ILCS 5/11-2 mandates that the election authorities notify all registered voters by first class mail “in sufficient time for such notice to be received by the registered voters in the precinct at least one day prior to the date of the election.”

Where there is no local newspaper, notice may be given by posting the information in five public places in the jurisdiction.  10 ILCS 5/15-6.

In jurisdictions that have chosen to adopt Illinois’ City Election Law

Jurisdictions that have adopted Illinois’ City Election law must “give timely notice through the press of the time and place of election in each precinct….”  10 ILCS 5/12-3.

Where there is no local newspaper, notice may be given by posting the information in five public places in the jurisdiction.  10 ILCS 5/15-6.

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29. (B) What remedies exist, if any, in the event that officials fail to comply with such rules?

Generally failure to give notice will not have any remedy, at least where “the time and place of an election are fixed by law.”  People ex rel. Kerner v. Martin, 194 N.E. 557, 558 (Ill., 1935).  However, when the time and place are not fixed by law but by some administrative agency, failure to give notice will invalidate the election.  Id.

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Provisional voting

 

30. Who cannot cast a regular ballot at the polls, but may cast a provisional ballot?

A person cannot cast an ordinary ballot but may cast a provisional one if any of the following apply:

  • The person’s name does not appear on the official list of eligible voters for the precinct in which the person seeks to vote;
  • The voter’s registration is challenged and that challenge is sustained by a majority of election judges (see question 17);
  • A court order extends the time for voting and the elector votes during the extended period;
  • The voter registered by mail, subjecting him or her to HAVA’s voter ID requirements, but the voter fails to present ID either in person or with the submission of an absentee ballot.  10 ILCS 5/18A-5.  HAVA requires (with some exceptions) first-time mail-in registrants to provide current and valid photo identification, a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the voter.  42 U.S.C.A. s 15483(b)(1)

See pamphlet, Provisional Voting in Illinois.

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31. When will a provisional ballot be counted?

A provisional ballot is counted if officials determine that all of the following apply:

  • The ballot was cast in the correct precinct based on the address provided in the provisional voting affidavit;
  • The voter provided his or her full name, house number and street name, and signature on the provisional voting affidavit that was issued to the voter at the polls;
  • The voter appears to be registered based on information culled from the voter (including any supplementary information submitted by the voter within two calendar days of the election), the election judges, the statewide voter registration database, the records of the county clerk or board of election commissioners, and the records of the Secretary of State.  Officials must identify and record whether this information is available and, when it is, they must “seek to obtain” it until they become satisfied, based on at least one of the above sources, that the voter is registered.  Conflicts amongst the sources are resolved based on the totality of the circumstances.  If the information equally supports and opposes valid registration, then the voter shall be deemed validly registered.    If either the statewide voter database or the records of county clerk support proper registration and the other does not, then the voter is deemed properly registered.

ILCS 5/18A-15.

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32. If a new voter registration card is rejected because of incomplete information (signature missing, for example), and a provisional ballot is cast by that voter, in what circumstances (if any) will the state count that provisional ballot as a valid vote?

The ballot will not be counted.  A provisional ballot is only counted if cast by a registered voter. 10 ILCS 5/18A-15(b)(3).  If the voter registration card has been rejected, then by definition the voter is not properly registered.  Additionally, the aforementioned statute explicitly states that “[i]f the provisional voter's signature on his or her provisional ballot request varies from the signature on an otherwise valid registration application solely because of the substitution of initials for the first or middle name, the election authority may not reject the provisional ballot.” Id. at (c).  This language has two important implications.  First, it implies the general importance of the signature on the voter registration application.  Second, the inclusion of this specific exception to the signature requirement implies the exclusion of other exceptions, including the complete lack of a signature.

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33. (A) Who are the state officials that determine whether provisional ballots will count as valid votes? Are these officials elected, appointed, partisan, or non-partisan?

County Boards of Election Commissioners count provisional ballots.  10 ILCS 5/18A-15(a); 6A-6.  However, some counties have not established such Boards.  10 ILCS 5/6A-1.  In these cases, the county clerk counts provisional ballots.  10 ILCS 5/18A-15(a); 6A-6.  The Board or clerk supervises a counting staff evenly divided between Republicans and Democrats.  10 ILCS 5/24C-13.  The staff members are nominated by the Board or clerk and appointed by the chairs of the local political parties.

County clerks

The county clerk is elected every four years.  10 ILCS 5/2A-16.  The statutes do not indicate whether this is a partisan election, and the question may depend on local law.

County Boards of Election Commissioners

County boards of election commissioners may be established by ordinance of the county board or by the decision of the county’s voters.  10 ILCS 5/6A-1.  The actual members of this board however, are appointed by the chairman of the county board.  10 ILCS 5/6A-3.  If the county clerk wishes to be on this board, he or she shall be a member.  The other two members of a county board of election commissioners are selected by the county board chairman with at least one board member coming from each of the two major political parties.  10 ILCS 5/6-22; 6A-5.

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33. (B) Is this review of provisional ballots conducted in public or behind closed doors?

Behind closed doors.

Provisional ballots are counted in a central location and nothing in the statute suggests it is open to the public.  10 ILCS 5/18A-15(a).  However, pollwatchers may observe provisional ballot-counting.  10 ILCS 5/18A-15(g).  Pollwatchers are allowed to “observe all proceedings and view all reasonably requested records relating to the conduct of the election…”  10 ILCS 5/17-23.

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33. (C) How soon after Election Day must this review of provisional ballots be complete?

Fourteen days.  10 ILCS 5/18A-15(a).  The county clerk or board of election commissioners must complete their final canvass seven days after that.  The final canvass by the State Board of Elections must be completed within thirty-one days of the election.

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33. (D) Is it subject to any form of administrative review or appeal?

Yes.  A person who believes a violation of Title III of the Help America Vote Act may file a complaint with the State Elections Board and request a hearing.  26 IL ADC 150.15.  Title III is the part of HAVA that contains provisional voting requirements.

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34. If a voter is required to cast a provisional ballot because the voter lacks required ID when going to the polls, how much time (if any) is the voter permitted to provide the necessary ID in order for the provisional ballot to count?

Two calendar days.  10 ILCS 5/18A-15(d).

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35. If a previously registered voter has moved within the same state, but has not updated the voter's registration, and if the voter casts a provisional ballot at the correct precinct for the voter's new address, will the provisional ballot count?

Unclear. 

To count, a provisional ballot must be cast “in the correct precinct based on the address provided by the provisional voter.”  10 ILCS 5/18A-15.  However, the statute does not give any further definition of the phrase “correct precinct,” and does not identify whether records must reflect registration in the precinct where the voters cast their ballots in order for the precinct to be considered “correct.”

Officials must also determine that a provisional voter is a “registered voter” in order for the ballot to count.  Id.  This seems to suggest a more liberal standard that would count votes as long as the voter was registered, despite the fact that the registration reflected old address information.  But without any statutory clarification or relevant case law, it is difficult to say.

In the 2004 presidential election, some Illinois counties counted provisional ballots regardless of what precinct they were cast in, while other counties refused to count the ballots unless they were cast in the “correct precinct.”  Faulty registrations get provisional votes tossed, Chicago Tribune, November 22, 2004.  There were no reports of this problem occurring in the 2006 election, but no publicly available information could be found that explains how the inconsistency was resolved.

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36.  If a voter casts a provisional ballot at a precinct that is not the correct one for the voter's current address, will the provisional ballot count?

No. Provisional ballots are invalid if the provisional voter did not “cast the provisional ballot in the correct precinct based on the address provided by the provisional voter.” 10 ILCS 5/18A-15.  If the provisional voter’s “residence address is outside the precinct boundaries” the election judge must inform the person of that fact and give them the appropriate phone number of the election authority in order to locate the polling place assigned to serve that address. 10 ICLS 5/18A-5(B)(1).

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Recounts/contests

 

37. What rules does the state have for protecting the chain of custody of ballots and voting counting equipment, and what remedies exist – including the possibility of ordering a new election – if those chain of custody rules are violated?

The Illinois code contains many chain of custody rules, some of which are digested below.  Subject to some exceptions, failure to follow these rules generally leads to the affected ballots being excluded from the official count.

Pre-election chain of custody rules

Pre-election chain of custody rules will be provided at a later time.

Post-election chain of custody rules

Illinois has separate chain of custody rules for jurisdictions that have Boards of Election Commissioners (10 ILCS 17), jurisdictions that do not have Boards of Election Commissioners (10 ILCS 18), jurisdictions that use “voting machines” (10 ILCS 24), jurisdictions that use “electronic, mechanical, or electric voting machines” (10 ILCS 24A), jurisdictions that use optical scan voting systems and count ballots in-precinct (10 ILCS 24B), and jurisdictions that use DRE machines (10 ILCS 24B).  Furthermore, where the different sets of rules appear to overlap, it is often unclear which one of them controls.  Rather than resolve such questions, the code leaves it to the reader to untie the knot by making general statements such as “[w]here voting machines or electronic voting systems are used, the provisions of this section may be modified as required or authorized by Article 24 or Article 24A, whichever is applicable.”10 ILCS 5/18-8.  With that caveat, here is a rundown of the general chain of custody rules as they appear in the code.

General provisions—in jurisdictions that have Boards of Election Commissioners

After voting, the judges shall count all the ballots in each box.  10 ILCS 5/18-9.  If the ballots exceed the number of ballot applications in the poll book, the judges shall reject all ballots found folded inside of another ballot.  If the ballots and applications still do not agree, judges will replace the ballots in the box and randomly withdraw and reject a sufficient number of them to make the ballots and applications agree.  Rejected ballots are marked as not counted, signed by a majority of judges, and placed in a special envelope for defective ballots.

Then the judges begin counting the ballots in earnest.  Each group of ten ballots after being counted is strung together before counting the next batch.  10 ILCS 5/18-10.  When counting is completed, the judges shall make two written statements of the results.  10 ILCS 5/18-14.  The statements are signed by all the election judges and stuffed into a sealed envelope.  The judges will each write their names across the seal.  The judges then do the same with the tally sheets.  The returns and tally sheets are sent to the Board of Elections Commissioners and various other officials.  The Board will then forward an original copy of the results and tally sheets to local election officials in charge of each political subdivision where a local canvassing board is designated to canvas votes.  The local election official then forwards the materials to the canvassing board.

Back at the precinct, the poll books are enclosed in a sealed envelope and the judges sign their names across the seals.  10 ILCS 5/18-15.  One of the judges will take the poll books and key to the ballot box.  10 ILCS 5/18-16.  Two of the judges will take one of the sealed return statements, and the two remaining judges will each take one sealed tally sheet.  The judges will deliver these materials to the Board of Election Commissioners or other authority and take a receipt.  The board or other authority is then responsible for keeping the materials locked up until they are ordered to be surrendered. 

General provisions—in jurisdictions that do not have Boards of Election Commissioners

Rules for jurisdictions that do not have Boards of Election Commissioners are largely identical, with the role of the Board filled by the local clerk.  However, differences are present in the following two areas:

1.  In these jurisdictions, all counted ballots are secured together with cord, and sealed and wrapped in paper.  10 ILCS 5/17-20.  The judges sign their names to the seal so that ballots cannot be removed without it being evident.  Then two judges shall return the ballots to the local clerk and take a receipt.  The clerk shall preserve the ballots for two months—longer if an election contest is pending.  The code section for jurisdictions that have Boards of Election Commissioners does not contain any analogous rules.

2.  There are no rules for the disposition of poll books or analogous poll records in jurisdictions that do not have Boards of Election Commissioners.

General provisions relating to voting machines

After the election, voting machines will be locked and sealed at the close of polls.  10 ILCS 5/24-15.  The number of the metal seal is recorded, as is the number displayed on the machine’s counter that shows the number of total votes cast on the machine.  Judges will then open the counting compartment of the machine and record the totals for each candidate or issue as well as the serial number of the machine.  However, this record is not necessary where the voting machine makes it automatically.  10 ILCS 5/24-16.

After adding up the totals, judges will enter them on the return sheets and complete a separate statement certifying that all the correct counting procedures have been followed.  10 ILCS 5/24-16.  The counting compartments on the machines are closed and locked for at least thirty days, unless the machines are opened by court order or must be used for another election.  Where the machines must be used for another election, officials shall first take a photograph of the counters in the machine to preserve evidence in case of an election contest.  The keys to the machine will be sealed in envelopes marked with polling place information and the serial number of the machine, then returned with the election returns.  10 ILCS 5/24-17.

The Illinois code also provides chain of custody rules that are specific to “electronic, mechanical or electric voting systems” (10 ILCS 5/24A), “electronic, mechanical or electric voting systems with precinct tabulation optical scan technology capability” (10 ILCS 5/24B), and DRE machines (10 ILCS 5/24C).

Effect of failure to conform to chain of custody rules

The effect of failure to conform to chain of custody rules depends on whether the rule violated was mandatory or “directive”-- intended more to guide election officials than to provide a remedy.  A chain of custody statute will be construed as mandatory when it prescribes a particular result in the case of its violation.  Andrews v. Powell, 365 Ill.App.3d 513, 523 (Ill.App. 4 Dist., 2006).  Where no result is specified, the statute is directory and violating it generally has no effect.

When officials fail to conform to mandatory chain of custody rules, the ballots will generally be excluded from the count.  DeFabio v. Gummerscheimer, 192 Ill.2d 63, 69 (Ill., 2000).  However, where the tainted ballots cannot be distinguished from the untainted, the court will instead “apportion” the votes.  Hileman v. McGinness, 316 Ill.App.3d 868, 870 (Ill.App. 5 Dist., 2000), citing In re Contest of Election for Officers of Governor and Lieutenant Governor, 93 Ill.2d 463, 489 (Ill., 1983).  This means that the court will count all the ballots even though some are tainted, and will distribute the votes to the respective candidates in the same proportion found in that part of the precinct’s ballots that were not tainted.

Not only will failure to follow chain of custody rules result in exclusion of the ballots from the official count, but a failure to follow the rules that apply after the official count is completed will exclude the ballots from evidence in an election contest lawsuit.  To admit ballots into evidence, the proponent must establish where the ballots came from and establish that their condition has not substantially changed.  Qualkinbush v. Skubisz, 357 Ill.App.3d 594, 620 (Ill.App. 1 Dist., 2004).  Absent this showing, the returns of the election officials, as opposed to the ballots themselves, are “presumed to be prima facie evidence of the result of the election.”  Pullen v. Mulligan, 138 Ill.2d 21, 72 (Ill. 1990).  To exclude ballots from evidence, it is not necessary to show that they were actually tampered with, but only necessary to show there was opportunity for tampering.  Failure to follow the post-canvass chain of custody rules may thus lead to the ironic result of a contestant being unable to prove ballots were cast illegally because he or she cannot prove that the illegal ballots were preserved legally.  However, the proponent need not show that the chain of custody rules were followed perfectly, only that officials substantially complied with them.  Armbrust v. Starkey, 3 Ill.2d 131, 139 (Ill., 1954).

At any rate, a court will not disqualify votes of entire precinct or invalidate an entire election unless “the proof of irregularities is so clear, and their character so serious or numerous that the number of legal votes cannot be ascertained and separated from the illegal ones….”  Gibson v. Kankakee School Dist. 111, Kankakee County, 34 Ill.App.3d 948, 955 (Ill.App. 1976).

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38. Are losing candidates and their supporters permitted to contest the results of an election on the ground that ineligible ballots were included in certified total, even if it is unknown for which candidate those ineligible ballots were cast?

Yes. 

A voter’s eligibility may be challenged even after the election, regardless of whether the voter was challenged at the polls.  Gribble v. Willeford, 190 Ill.App.3d 610, 617 (Ill.App. 5 Dist., 1989).  Illegal ballots may be rejected and deducted.  Likens v. Baas, 133 Ill.App.3d 42, 55 (Ill.App. 1 Dist., 1985).  At least some Illinois courts will use evidence of illegal voters’ party affiliations as the best guide to determining how they voted, and deduct votes accordingly.  Gribble v. Willeford, 190 Ill.App.3d 610 (Ill.App. 5 Dist., 1989).

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39. How close must the result of a statewide election be in order for an automatic recount to occur?

There are no automatic recounts in Illinois.

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40. (A) In what circumstances are losing candidates or their supporters entitled to request a (non-automatic) recount?

A losing candidate may request “discovery”—Illinois’ term for a recount—whenever that candidate received 95% of the votes cast for the successful candidate.  10 ILCS 5/22-9.1.  However, unlike recounts in most states, “discovery” does not affect the results of election.  Rather, the purpose of the discovery recount may be to determine whether there is a basis for moving forward with election contest proceedings.  Potts v. Fitzgerald, 336 Ill.App.3d 500, 505 (Ill. App. 2nd Dist., 2003). 

In the context of an election contest lawsuit, the Illinois code includes a separate provision that allows candidates to obtain a recount by filing a petition with the court.  10 ILCS 5/23-23.2.  The court must grant the petition where, based on the facts alleged in the petition, “there appears a reasonable likelihood the recount will change the results of the election.”  Id.   Despite the language of the statute, some courts require that the allegations contained in the complaint, if true, would in fact change the results of the election.  Andrews v. Powell, 848 N.E.2d 243, 249-250 (Ill. App. 2006).

There is no code provision allowing voters to obtain a discovery recount.  However, voters can bring election contests for offices in their jurisdiction except for Governor, Lieutenant-Governor, Secretary of State, State Comptroller, Treasurer, Attorney General, Senator or Representative.  10 ILCS 5/23-19.  The voter then should be able to obtain a recount by following the same procedures candidates would use under 10 ILCS 5/23-23.2.

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40. (B) How is that done? What is the deadline for doing so?

Candidates seeking a recount must file a “petition for discovery” within five days of the last day for proclamation of the results of the election.  10 ILCS 5/22-9.1.  The petition shall ask that ballots, voting machines, or ballot cards--as the case may be--shall be examined, that any automatic tabulating equipment shall be tested, and that ballots, recorded votes, or ballot cards--as the case may be--shall be counted in specified precincts.  The number of specified precincts may not exceed twenty-five percent of the total number of those within the jurisdiction of the election authority.

Candidates seeking a recount in the context of an election contest lawsuit must file a pleading in the lawsuit that requests a recount and alleges facts that, if true, would create a “reasonable likelihood the recount will change the results of the election.”  10 ILCS 5/23-23.2.  At least some Illinois courts will extrapolate the results obtained from any discovery recount to help determine whether this reasonable likelihood is present.  Andrews v. Powell, 365 Ill.App.3d 513, 521 (Ill.App. 4 Dist., 2006). 

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40. (C) When should the recount be completed?

The statute does not specify when a discovery recount should be completed.  There is also no deadline specified for recounts in the context of an election contest lawsuit.

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40. (D) Who pays for the recount?

A petition filed under this Section shall be accompanied by the payment of a fee of $10.00 per precinct specified.  10 ILCS 5/22-9.1. 

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41. In the event of a recount of votes cast on a DRE machine, is the record to be recounted electronic or paper?

Illinois does not have standardized recount procedures.  This means both the paper and the electronic record could be recounted, but neither would be dispositive.

In the case of a discovery recount, the examination and testing will be limited to those materials—ballots, VVPATs, the machines themselves—that are specified in the recount petition.  10 ILCS 5/22-9.1.  A candidate seeking to examine VVPATs through a discovery recount can request a “redundant recount,” which includes “a count of the permanent paper record of each ballot cast….” 10 ILCS 5/24C-15.1; 5/24C-2.  However, there is nothing in the code to suggest the VVPAT “trumps” results stored on memory cartridges, or vice versa.  There is also nothing to suggest that any one type of evidence “trumps” any other in the context of an election contest lawsuit.

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42. Who are the state officials who conduct recounts?

County Boards of Election or clerks conduct all recounts outside of election contests.  In the election contest context, the presiding judge and his or her appointed agents supervise the recount.

Discovery recounts

The county Board of Election Commissioners will conduct discovery recounts.  10 ILCS 5/22-9.1; 10 ILCS 5/1-3.  Counties that do not have Boards of Election Commissioners use the county clerk for recounts.

The county clerk is elected every four years.  10 ILCS 5/2A-16.  The statutes do not indicate whether this is a partisan election, and the question may depend on local law.

County boards of election commissioners may be established by ordinance of the county board or by the decision of the county’s voters.  10 ILCS 5/6A-1.  The actual members of this board however, are appointed by the chairman of the county board.  10 ILCS 5/6A-3.  If the county clerk wishes to be on this board, he or she shall be a member.  The other two members of a county board of election commissioners are selected by the county board chairman with at least one board member coming from each of the two major political parties.  10 ILCS 5/6-22; 6A-5.

Recounts in election contest lawsuits

Election contests disputing title to statewide offices (Governor, Lieutenant Governor, Attorney General, Secretary of State, Comptroller and Treasurer) are heard by the state Supreme Court, which will appoint a trial court judge or team of such judges from the affected jurisdiction to preside over the recount, if any.  10 ILCS 5/23-1.8a.  The code does not state whether the local Board of Elections or county clerk play any role in this process.  For efficiency, the court may appoint the State Board of Elections to execute the recount, and the Board may hire assistants as necessary.  10 ILCS 5/23-1.8b.

In case is for non-statewide offices, the court may refer to the case to the local election authority-- the Board of Elections or county clerk-- to recount ballots.  10 ILCS 5/23-23.  The election authority may employee assistance to help count the ballots. 

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43. In an election contest lawsuit, what is the contestant's burden of proof?

The contestant must show by a preponderance of the evidence that there were irregularities and the affected votes “were sufficient in number to change the results of the election.”  Gibson v. Kankakee School Dist. 111, Kankakee County, 34 Ill.App.3d 948, 955 (Ill.App. 1976).

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44. In an election contest lawsuit, will the court permit discovery, including depositions?

Yes. 

In a contest for statewide offices (Governor, Lieutenant Governor, Attorney General, Secretary of State, Comptroller and Treasurer), a contestant may examine election records and equipment by filing an appropriate request with the court.  10 ILCS 5/23-1.6a.  In addition, contestants may trigger a court-ordered recount in which the court will “take evidence in the same manner… as in other civil cases.”  10 ILCS 5/23-1.8a.  The court may also issue subpoenas and take testimony during this recount.  10 ILCS 5/23-1.8b.

In contests for the state House and Senate, either party may take depositions upon ten days notice.  10 ILCS 5/23-14.  Parties may also compel the production of documents at these depositions.  10 ILCS 5/23-15.  Finally, the General Assembly can step in and take its own depositions.  10 ILCS 5/23-18.

In contests for other offices, “[e]vidence may be taken in the same manner and upon like notice as in other civil cases.”  10 ILCS 5/23-22.

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45. In an election contest lawsuit, how much evidence of wrongdoing must a contestant have to survive a motion to dismiss?

None. 

On a motion to dismiss, allegations stated in an election contest complaint are assumed to be true, and the motion is decided on the complaint’s legal sufficiency.  Gribble v. Willeford, 190 Ill.App.3d 610, 613 (Ill.App. 5 Dist., 1989).  To be legally sufficient, the complaint must state that “the petitioner voted at the election, and that he believes that a mistake or fraud has been committed in specified precincts in the counting or return of the votes for the office or proposition involved or that there was some other specified irregularity in the conduct of the election in such precincts….”  10 ILCS 5/23-20.  The complaint also must contain a statement that, “as a consequence of the mistake, fraud or irregularity alleged, the result of the election, as officially proclaimed, was incorrect….”  10 ILCS 5/23-1.3a.

There is one more requirement, and it remains a subject of debate.  The issue concerns the impact of language contained in 10 ILCS 5/23-23.2, which defines what is necessary to obtain a recount in an election contest.  Specifically, it states that parties seeking a recount in an election contest must show a “reasonable likelihood [that a]… recount will change the results of the election….”  Despite the fact that the plain language of this statute does not concern the sufficiency of an election contest complaint, but the sufficiency of a request for a recount within an existing election contest proceeding, courts have begun to apply its “reasonable likelihood of a changed outcome” standard in determining the sufficiency of election contest complaints.  Gribble v. Willeford, 190 Ill.App.3d 610, 616 (Ill.App. 5 Dist., 1989).  Another camp, while seeming to agree with the idea that 10 ILCS 5/23-23.2 should be used to evaluate the sufficiency of election contest complaints, nevertheless would require that the petition contain “specific facts indicating that the result of the election would [actually] be changed”—something more than the “reasonable likelihood” standard articulated by the statute.  Hoffer v. School Dist. U-46, 273 Ill.App.3d 39, 56 (Ill.App. 2 Dist., 1995).  For a discussion, see Andrews v. Powell, 365 Ill.App.3d 513, 520 (Ill.App. 4 Dist., 2006).

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46. In an election contest lawsuit, what specific deadlines and timetable does state law provide for a trial?

For statewide offices

For statewide offices, election contest petitions must be filed in the Supreme Court “within 15 days of the date of the official proclamation of results….”  10 ILCS 1.2a.  Then, within forty-eight hours, officials must send a copy of the petition to the affected candidates and the Chief Justice.  10 ILCS 5/23-1.4a.  Within twenty days of the filing of the petition, each affected candidate may file pleadings to become part of the contest; candidates who do not file such pleadings may not participate in the proceedings.  10 ILCS 5/23-1.5a.  The petitioner must file any requests for examination of records and equipment within thirty days of the date of the filing of the petition; other participating candidates may file such requests within five days of receiving the petitioner’s request or, alternatively, between the thirty-first and thirty-sixth day after a petition is filed if the petitioner makes no discovery request.  10 ILCS 5/23-1.6a.  Candidates who fail to meet these discovery deadlines will be barred from making discovery.  After the time for discovery request is passed, the Supreme Court shall schedule a hearing to determine the outcome of any preliminary motions or discovery requests, schedule a recount or other hearing, establish procedural rules for the determination of facts, and consider other matters.  10 ILCS 5/23-1.7a.  Where the Supreme Court assigns a trial court judge to oversee a recount performed inside the election contest lawsuit, the judge will submit written findings no later than the 150th day after the election or, in a primary, no later than the 87th day after the election.  10 ILCS 5/23-1.9a.  Within 15 days after the trial court judge issues the written findings any party may file a written objection to those findings. 10 ILCS 5/23-1.10a.  Subsequent to that deadline the Supreme Court will determine the contest, and to assist in the determination may schedule a hearing, take evidence, and accept, reject, or modify the findings of the trial court judge.  10 ILCS 5/23-1.10a.  The Supreme Court will make its determination as soon as practicable, and its determination is final, except insofar as contestants may file petitions for reconsideration.  10 ILCS 5/23-1.12a.

Contests for General Assembly

Any voter who voted in a race for a particular office for general assembly may file an election contest within 30 days of the proclamation of the results.  10 ILCS 5/23-13.  The state board of elections will deliver a copy of the petition to the general assembly on or before the second day of its next session.  10 ILCS 5/23-17.  The code does not provide any additional details as to the schedule of such contests.

Contests for other elections

A person wishing to contest any other election shall file a petition within 30 days of declaration of the winner.  10 ILCS 5/23-20.  The contestee should receive notice of summons as in other civil cases.  10 ILCS 5/23-21.  Discovery shall proceed as in other civil cases.  10 ILCS 5/23-22.  Where a contestant files a request for a recount within the election contest, the contestee has ten days to file a similar request.  10 ILCS 5/23-23.  When ten days have passed since the service of the original petition, the court may hear and determine the matter at any time.  10 ILCS 5/23-23.  The court may also hear and determine the matter at any time after the time the contestee is required by notification to appear.  Election contest cases shall have priority over all other types of cases, and appeals may be filed as in other cases.  10 ILCS 5/23-30.

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47. Are the judges in the state themselves elected or appointed?

All judges in Illinois are elected.  ILCS Const. Art. 6, s 12.

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Other

 

48. What specific problems arose in connection with the voting process in this state during 2004? What remedies, if any, did the state adopt in response to those problems?

The 2004 Illinois elections went fairly smoothly, although certain locales did experience serious delays and ballot shortages due to officials’ failure to anticipate and adjust for increased voter turnout.  A summary of those and other problems appears below.

No information about remedies was found. 

Ballot shortages

Officials ran out of ballots in two Chicago precincts, causing some voters to be temporarily turned away from the polls.  Election officials look into temporary ballot shortages, Chicago Sun Times, November 4, 2004.  Some Bloomington precincts also experienced ballot shortages.  Local turnout overwhelming, Bloomington Pantagraph, November 3, 2004.  Officials blamed high voter turnout.

Disability access

In Chicago, about 17 percent of the city’s polling sites were inaccessible to those in wheelchairs.  Barriers still confront some disabled voters, Chicago Tribune, November 5, 2004.  Activists stated that polling places were more accessible than in the previous primary, but that further work was needed.

Voter registration problems

East St. Louis had roughly four thousand more registered voters than residents.  Reeb to drop lawsuit challenging election result, Belleville News Democrat, November 9, 2004.

Long lines

St. Clair County experienced long lines due to insufficient voting machines and election judges.  Reeb vows to fight vote fraud, Belleville News Democrat, November 14, 2004.  Officials blamed the waits on precincts that were too populous and high voter turnout.

Long lines of up to four hours were also reported in Cook, DuPage, Rock Island and Winnebago counties.  Voting marked by small, local snafus, Belleville News Democrat, November 3, 2004.

Provisional ballot confusion

The Chicago Tribune reported that election officials statewide applied inconsistent standards for determining whether to count provisional ballots.  Faulty registrations get provisional votes tossed, Chicago Tribune, November 22, 2004.  Specifically, some counties refused to count provisional ballots cast in the wrong precinct, while others did not.

The Peoria Journal Star reported that some voters had to wait in line for “20 or 30 minutes” while election judges attempted to determine whether they were entitled to cast a provisional ballot.  Ballot fix after Election Day comes too late, Peoria Journal Star, November 24, 2004.  The delays were created in part by a procedure that required election judges to call into the local Election Commission to determine whether provisional voters were in the right polling place; if they were in the wrong place, judges were supposed to direct them to the right one so that their provisional votes would count.  The delays were exacerbated by the fact that the Election Commission only made three phone lines available for this purpose.

Counting delays

In Sangamon County, high voter turnout and a large number of write-in votes delayed vote-counting until Wednesday morning.  High voter turnout, write-in ballots slowed Sangamon returns, Springfield State Journal-Register, November 4, 2006.

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49. What pending litigation exists in the state concerning the voting process?

As of January 17, 2006, none.  See this chart of major pending cases.

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50. What voting machines are used in this particular state? What security measures are in place to prevent tampering with the voting machines? Insofar as DRE machines are used, is there a requirement that they produce a voter-verifiable paper trail?

According to a State Board of Elections chart, almost all counties in Illinois use optical scan voting machines of one kind or another. 

The general security requirements are as follows.  To prevent tampering, the county clerk or Board of Elections keeps custody of the machines when not in use.  10 ILCS 5/24-7.  When in use, the machines must be positioned in plain view and must be inspected after each voter completes voting.  10 ILCS 5/24-8.  As soon as voting is complete, the machines shall be locked to prevent tampering.  10 ILCS 5/24-15.  Where votes are counted by automatic tabulating equipment, the equipment operator must keep a written log of any adjustments made to the equipment, the number of memory cards counted, and other items.  10 ILCS 5/24A-13.  Officials will conduct a public test of counting equipment before each election to ensure that it records votes accurately.  10 ILCS 5/24A-9.

In addition to these general security requirements, the Illinois code includes additional security rules for “electronic, mechanical or electric voting systems” (10 ILCS 5/24A), optical scan systems (10 ILCS 5/24B), and DRE systems (10 ILCS 5/24C).

Where DRE machines are used, they must be capable of producing a VVPAT.  10 ILCS 5/24C-11.

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