Illinois Disenfranchises Thousands of Votes‏

“FRAUDULENTLY AUTHENTICATED”

by Sharon Meroni, Defend the Vote, ©2014

(Apr. 30, 2014) — Defend the Vote filed comments to the proposed provisional voting rules currently going through the legislative process for confirmation from JCAR (Joint Committee on Administrative Rules). This process requires the Illinois State Board of Elections (ISBE) to respond to Defend the Vote’s comments. Then, they post revised rules, and we have one last response period. We are about to enter that 2nd period; it begins when the Board posts their revised rules. Deputy Counsel Ken Menzel noted in his email (see below) that the Board is ready to post these revised rules.

In the first round, our comments appear to have been successful in achieving their intended result.  We argued that the proposed rules allowed for voters to falsely affirm in voter affidavits that they resided within the precinct when they do not.  In fact about a 1000 ballots were counted in the March Primary where the voter falsely affirmed that they were residents in the precinct. These ballots were accepted despite the obvious conflict of fact.

After our comments, the Board has reduced the provisional voting process to require the voter to ‘believe they are in the correct precinct.’ The earlier version – which was in effect for the Primary – permitted voters to insist on their right to vote, and changed the meaning of provisional voting from being restricted to in-precinct voters, to allowing anyone, for any reason, to vote a provisional ballot within their county and municipality.

At the last ISBE Board meeting, Defend the Vote challenged the ISBE to identify if the 1000 affidavits taken by the out-of-precinct voters were fraudulently authenticated. These affidavits affirm that the voter lives in the precinct, so we effectively argued ‘how could they get an out-of-precinct ballot?’ The ISBE admitted they do not keep any records of out-of-precinct provisional voting, so we FOIA’d all the Illinois election jurisdictions and are now building that list.

 What of these 1000 voters and related ballots with multiple votes on them? Has the ISBE looked into them to assure the voter was not committing fraud?  Did the voter intentionally lie about their residence?  Did anyone look?

The biggest battle is before us. Untold thousands of disenfranchised votes on the constitutional amendments in Illinois are what is left on the table, unresolved. Defend the Vote calls this “voter extortion” and if we understand Mr. Ken Menzel  (Deputy Counsel for the Illinois State Board of Elections) correctly, he apparently agrees….

As it stands now, all out-of-precinct ballots register a “No” vote on all constitutional amendments in November. I have labeled this as “voter extortion.” To give an out-of-precinct voter the right to vote for federal and state offices, it compels them to vote “No” on all constitutional amendments on the ballot. All without warning the voter! 

Our argument in the email explains that Defend the Vote’ JCAR Comments allege that the partial counting of votes results in voter extortion.  I simply cannot back down on this, regardless to whether or not the voter is informed or aware, or whether this is a conscious act on any one’s part.  Substantively, the lack of consent makes the fault even graver.  Consequently, intent is not the ruling concern.  The effect of these rules is that by counting a single vote, the voter not only forsakes other votes (which may or may not be on the in-precinct ballot) but they must also vote no on all constitutional amendments; this even though the amendment is on their ballot and regardless to how they personally mark their choice on this ballot.

In Saturday’s email below, I challenged Ken Menzel to address this point, which he neglected to deal with in the ISBE’s response to our JCAR comments. I purposefully doubled down on calling this “voter extortion.” His response stunned me. It is the official response and was copied to the ISBE General Counsel (Steve Sandvoss) and the Executive Director (Rupert Borgsmiller) and General Counsel for the Chicago Board of Elections, James Scanlon.

From: Menzel, Ken

Sent: Saturday, April 26, 2014 3:33 PM
To: Sharon Meroni – Defend the Vote
Cc: Sandvoss, Steve; James Scanlon; Borgsmiller, Rupert
Subject: RE: Rulemaking Process – Provisional Ballots Cast In The Wrong Precinct – Upcoming 2nd Notice (and revisions to the proposed rule based upon public comments and consultation with legislative staff)

Sharon

I certainly see the point you raise. Alas, we believe our hands are tied by the legislation.

I believe that the section would need to be amended in order to expand the range of offices remade.

     Sent via the Samsung Galaxy Note® II, an AT&T 4G LTE smartphone

He essentially conceded the point, signaling that a legislative solution is required for the problem. What does this mean? As it stands today, about 5000 – 6000 automatic “No” votes on all constitutional amendments in Illinois.

The full email is below.   It might be easier to read in pages. Ken Menzel is responding to our JCAR Comments.  I respond to his comments not by discussing what he said, but by what he missed.  The comments do not address the problem of the forced “no” votes on all out-of-precinct ballots.   

 —–Original Message—–

From: Menzel, Ken
Sent: Saturday, April 26, 2014 3:33 PM
To: Sharon Meroni – Defend the Vote
Cc: Sandvoss, Steve; James Scanlon; Borgsmiller, Rupert
Subject: RE: Rulemaking Process – Provisional Ballots Cast In The Wrong Precinct – Upcoming 2nd Notice (and revisions to the proposed rule based upon public comments and consultation with legislative staff)

Sharon

I certainly see the point you raise. Alas, we believe our hands are tied by the legislation.

I believe that the section would need to be amended in order to expand the range of offices remade.

Sent via the Samsung Galaxy Note® II, an AT&T 4G LTE smartphone

——– Original message ——–
From: Sharon Meroni – Defend the Vote
Date: 04/26/2014 2:48 PM (GMT-06:00)
To: “Menzel, Ken”
Cc: “Sandvoss, Steve” James Scanlon “Borgsmiller, Rupert”
Subject: RE: Rulemaking Process – Provisional Ballots Cast In The Wrong Precinct – Upcoming 2nd Notice (and revisions to the proposed rule based upon public comments and consultation with legislative staff)

Ken,
Thank you for this thoughtful response. I have not had time to fully digest it, and promise to do so. I am compelled to respond quickly to address one issue of immediate and grave concern that I feel is not addressed in your comments.

Defend the Vote’ JCAR Comments allege that the partial counting of votes results in voter extortion. I simply cannot back down on this, regardless to whether or not the voter is informed or aware, or whether this is a conscious act on any one’s part. Substantively, the lack of consent makes the fault even graver. Consequently, intent is not the ruling concern. The effect of these rules is that by counting a single vote, the voter not only forsakes other votes (which may or may not be on the in-precinct ballot) but they must also vote no on all constitutional amendments; this even though the amendment is on their ballot and regardless to how they personally mark their choice on this ballot.

To get the right to have a single vote count, the out-of-precinct voter must vote no on all constitutional referendums.

Speculating on a far-out solution: To stand any level of a smell test, the Board would have to have a second affidavit signed by the voter that states they are aware that by taking a provisional ballot, that if found out-of-precinct, they are automatically voting no on all constitutional amendments. This statement would have to be signed and witnessed by at least two bi-partisan election judges. So grave are the consequences, that just as a ballot must be in a voter’s language, so too must this consent to have a vote automatically cast as a “no” be in the native tongue. To be a true reflection of the voter’s consent, would we need a separate affidavit for each amendment on the ballot?

Further, should this voter then proceed to vote “Yes” on any of the amendments, does this provide evidence of a direct conflict between the voter’s will and the above mentioned affidavit which permitted them to take a ballot?

In translating a ballot what is an election judge to do when they encounter a situation where the voter said “Yes” on the amendment, but it must be marked as a “No”?

What are the grounds for a voter’s protest of disenfranchisement?

I do understand the issue of your mandate and the General Assembly. Not-with-standing, what better describes voter extortion or sets a more fertile ground for voter fraud? As for the potential for error, Defend the Vote cannot accept any statement unchallenged identifying a potential 1000 out-of-precinct ballots to be “on occasion”. We document and anticipate about a 1000 ballots, maybe 2000, would be impacted in November 2014. Now, multiply that by the total constitutional amendment votes on the ballot and you begin to have a measure of how many votes are actually impacted. I note this Board has failed to track or provide any data on how many votes will be impacted. The only study done is being conducted by Defend the Vote.

I suppose, the number of votes remains a mystery to unfold…. But 6000 is not an exaggerated guess. This potentially could throw multiple legal challenges in any of the contests for the constitutional amendments in November.

So what is the solution? That is our concern.

Respectfully,
Sharon Meroni

From: Menzel, Ken [mailto:]
Sent: Friday, April 25, 2014 5:02 PM
To: ‘Sharon Meroni – Defend the Vote’
Subject: Rulemaking Process – Provisional Ballots Cast In The Wrong Precinct – Upcoming 2nd Notice (and revisions to the proposed rule based upon public comments and consultation with legislative staff)

Sharon

We will be giving the 2nd notice on the proposed rules on provisional voting in the very near future.

Based upon public comments submitted to us, and further discussion with the legislative staffs as to the legislature’s intentions with the Election Code amendment giving rise to the rules, there will be a few revisions in the proposed rules. Voters discovered to be in the wrong precinct prior to casting their ballots will be directed to the correct precinct (and should not be permitted to cast a provisional ballot in a known wrong precinct). The geographical areas for which mistakenly cast wrong precinct votes will be (partially) counted will be those cast in the correct municipality, county and/or legislative district. And there will be some clarifications as to sealing provisional ballots for transportation and requiring paper trails for any “as cast” DRE provisional ballot and its associated remade provisional ballot.

We will also be providing an SBE response to your written comments to JCAR, the current draft of which appear below.

Provisional Voting Rules
Defend The Vote Comments

10 ILCS 5/18A-15(b)(1) provides that provisional ballots cast in the wrong precinct shall, under certain circumstances, be at least partially counted (i.e. counted for statutorily specified offices that the voter would have been eligible to vote on if he were in the correct precinct). That section mandates the State Board of Elections (the “SBE”) to adopt rules to implement that mandate.
The core of Defend The Vote’s comments center on other provisions of Article 18A of the Election Code which provide only for voters to cast provisional ballots in the correct precinct (e.g. 10 ILCS 5/18A-5(b)(2)(i), and to sign a statement attesting that he resides in the precinct where the provisional ballot is being cast).

Defend The Vote appears to take the position that, due to such conflict between provisions, the proposed rules should not be adopted. There is indeed some degree of inherent conflict, inconsistency or ambiguity among the provisions of Article 18A. However, the SBE believes that it must proceed with rules to implement 10 ILCS 5/18A-15(b)(1) and to do so in a manner that attempts to reconcile the various statutory provisions as harmoniously as is possible and to give effect to as much of each statute as is practicable. It is beyond the power of the SBE to rectify through the rulemaking process any apparent conflicts between different statutory provisions (that being the exclusive province of the General Assembly).

This quandary raised by Defend The Vote is one (of several) reasons underlying the proposed rules’ emphasis on attempting to get the voters directed to the correct precincts so as to minimize the number of provisional ballots cast out of precinct.

When out of precinct voters are directed to the correct precinct, or to contact the appropriate election authority to determine the correct precinct, and the voter goes there, then no provisional ballot would need to be cast, and there is no loss of votes as to referenda or offices not covered by 10 ILCS 5/18A-15(b)(1).

The existence of apparent conflict, inconsistency or ambiguity with other sections does not negate the provisions of 10 ILCS 18A-15(b)(1) and its mandate to the SBE to develop rules relating to provisional ballots which are cast in the wrong precinct. In the absence of legislative action by the General Assembly to clearly reconcile any such apparent conflict, inconsistency or ambiguity, the SBE must proceed to give effect to each existing statutory provision as best it can.

The voter’s affirmation of residence in the precinct (under 10 ILCS 5/18A-5(b)(1)) will be inherently untruthful in the case of a provisional ballot cast in the wrong precinct. However, it is the understanding of SBE staff that some of the impetus for the amendment to 10 ILCS 5/18A-15(b)(1) was the problem reported in other states of voters being misdirected by pollworkers or election authorities to incorrect polling places. In such a situation, the voter’s affirmation would be an innocent, even reasonable, mistake of fact instead of a knowing and deliberate falsehood. The required affirmation serves the purpose of deterring others from causing mischief to the voting process by deliberately going to the wrong polling place to vote[1] (such a knowing and deliberate false affirmation would allow for criminal prosecution).

The SBE believes that the purpose of the Amendments to Section 18A-15 (which were a result of HB 2418) was to allow for the partial counting of provisional ballots of voters who mistakenly vote in the wrong precinct, either through their own unawareness or being misdirected by a judge of election. In addition, the SBE believes that the thought behind this “remedial” approach was to avoid disenfranchising (and thus penalizing) voters who unwittingly voted in the wrong precinct, (and for whatever reason were not informed of such fact by the judges of election) but were otherwise qualified to vote (e.g. the “right church, wrong pew” scenario discussed in several of the federal court cases where provisional voting was at issue). To the extent that the Proposed Rules in its current form allow for a voter to knowingly vote in an “incorrect precinct”, and thereby execute a false affidavit, the SBE will strike that portion of the Proposed Rules (Part 218.10(b)(1) relating to that situation. The provision in the Rules requiring the judges of election to notify said voters of the consequences of voting a provisional ballot in the “incorrect precinct” (partially counting the ballot) will also be stricken as no longer being applicable (because the Rule will now presume that both the voter and the judges of election did not realize he or she was voting in the “incorrect precinct”. This being the case, the judges would not know to inform the voter of the consequences of casting a provisional ballot in said precinct.).

Defend The Vote gives a long commentary on Article 18A of the Election Code, noting such things as:

A. The present cross-referencing error in 10 ILCS 5/18-A-5(b)(3) to subsections in 10 ILCS 18A-5(b)(2) (resulting from the failure to update them when 10 ILCS 18A-5(b)(2) was previously amended).

B. The potential for compromise of some of the secrecy of a voter’s ballot inherent in the remake process and/or due to reporting of results from post Election Day activities where the number of post Election Day ballots are small in one or more categories.

These issues are related to the Illinois Election Code (10 ILCS 5/1-1 et seq.) generally, and are beyond the SBE’s authority to address in a rulemaking process. These issues would need to be addressed by the General Assembly.

The provisional voting pamphlet, and other informational materials for the public, are in the process of annual summer updates. Some reference on the new provisional voting provisions will be incorporated into materials, although no exhaustive explanation is currently planned for those materials. The SBE emphasis will remain on attempting to get voters to go to the correct precinct where the casting of the ballots will be more efficient and the entire ballots will be able to be counted in the conventional manner.

Defend The Vote’s assertion that any voters will be disenfranchised is, simply, diametrically wrong. Prior experience in Illinois and other states has shown that provisional ballots will on occasion be cast in the wrong precinct. Previously, provisional ballots cast outside of the correct precinct were rejected in their entirety. Previously, such voters were entirely disenfranchised. The effect of the proposed rule would be to partially enfranchise voters who cast a provisional ballot in the wrong precinct, allowing votes cast for the statute’s specified offices to be counted rather than rejected. It is the understanding of the SBE that this was precisely the intention of the General Assembly in passing the amendment to 10 ILCS 5/18A-15(b)(1).

Defend The Vote asserts that:
From a workplace perspective, this rule places control over the voting environment into a voter’s hands and takes it out of the election judges. The election judge has done their duty and correctly directed the voter to the precinct. It is now the legal duty of the voter to leave the precinct. This clause empowers the voter to disobey the election judge and insist that they can vote. This sets the wrong procedure, the wrong message, and the wrong tone for the voting environment.

The revision to the proposed rule will avoid this issue raised by Defend The Vote.

Defend The Vote asserts that a voter casting a provisional ballot in an incorrect precinct may not know precisely which votes on that ballot will or will not count. Under the revision to the proposed rule, partial counting will only occur where the voter and the judges of election were operating under the mistaken belief that the voter is in the correct precinct. They won’t think that the partial counting provisions will apply to the voter in any event.

Defend The Vote faults the proposed rule for its geographical restrictions (e.g. not letting someone registered in Lake County vote in Springfield), after faulting the proposed rule for letting anyone vote anywhere outside of the precise precinct of residence. Balancing the practical inability of election authorities to supply every precinct in the state with enough materials to process every voter in an extremely wide geographical area (along with the practical problems that would follow in exchanging the ballots among highly dispersed election authorities) , the proposed rule attempts to address the targeted problem of voters innocently ending up in the wrong precinct, which would reasonably be expected to be in the same municipality, county and/or legislative district as the voter’s correct precinct.

Defend The Vote faults the proposed rule for creating “a new form of ballot processing otherwise unheard of in Illinois”. While this particular partial remake process for ballots is indeed new, the proposed rule was structured to work in the same manner and with the same personnel as the very well established ballot remaking process which has been employed for many decades with regards to damaged ballots that cannot be read by the tabulating equipment. Applying these existing ballot remaking procedures to the partial remake of provisional ballots may result in some compromise of voter secrecy, but there is presently no available automated technology that could be employed for the purpose of remaking optical scan paper ballots. The existing ballot remaking process adapted to this purpose uses bipartisan teams of ballot remake judges, operating in the central ballot processing area subject to observation by statutorily qualified pollwatchers. Defend The Vote is simply wrong in its assertion that the remake judges who remake the provisional ballots will upload the data as to the casting or rejection of the ballot to the statewide voter database where the voter can access that information. Uploading data to the statewide voter database is done only by election authority staff.[2] Defend The Vote also takes issue with the proposed rule allowing DRE remake of wrong precinct provisional ballots. It asserts that more than half of the state casts votes on DRE equipment. This is not true. Three (3) of the 110 election jurisdictions employ (essentially) all DRE voting: Kane County, Peoria County and the City of Peoria.[3] The other 107 jurisdictions offer at least one (1) DRE unit in each voting location (for purposes of ADA compliance) but the majority of ballots cast in precinct are on optical scan paper ballots. The provision allowing for DRE remake of ballots was added to allow jurisdictions, such as Cook County, which has been able to automate the remake process with respect to DRE ballots, to provide for all provisional ballots to be cast on the DREs. When the determination is made as to whether a wrong precinct voter was entitled to vote, the voter’s personal information and the precinct and ballot style (but not how the voter voted on any particular office) is called up and the correct precinct and ballot style is noted, the DRE equipment then converts the eligible wrong precinct votes to the correct precinct and ballot style with a paper trail tying the two ballots together and with no compromise of voter secrecy. The SBE did not provide exhaustive specificity as to DRE procedure because the 4 basic voting systems (and the several sub-iterations of some systems) approved for use in Illinois differ, and have differing capabilities to implement new changes, such that a singular, very specific process will not work across all of the voting systems.

Defend The Vote faults the proposed rules for not imposing specific requirements as to how the election authorities are to secure the provisional ballots during the period after they have been returned to the election authority. The election authorities have a general duty to keep all ballots secured, and the SBE has never attempted to specify precisely how each of the 110 election authorities should do so as to any category of ballot. Given the diversity of facilities, resources and circumstances of the 110 election authorities (from such small rural jurisdictions as Scott and Stark Counties with populations under 10,000 to the large urban jurisdiction of the City of Chicago with a population over 1,000,000), a “one size fits all” rule might well be unworkable, and is beyond the scope of the current rulemaking.

Defend The Vote asserts that the rule “must” provide that transfer of provisional ballots between two election authorities be the same as for the return of ballots by the election judges from precincts to the election authority. There is no legal foundation for that assertion. Once ballots are returned by the bipartisan pairs of election judges to the election authority, the election authority has an obligation to secure the ballots, but the Election Code does not mandate that every action of election authorities thereafter be handled by similar bipartisan pairs.

Defend The Vote asserts that the SBE told the election authorities not to train the election judges regarding the new provisional voting rule, attributing this to McHenry County Clerk Katherine Schultz. This is untrue, and County Clerk Schultz denies saying so. The SBE advised against providing the full emergency administrative rule to the election judges (as only a very small fraction of it involved the election judges function). In the election judge training schools run by the SBE for 44 (of the 110) election authorities in the state, the judges were trained to emphasize directing voters to the correct precinct in the first instance, but that provisional ballots voted in the wrong precinct could now be partially counted. The remaining 66 election jurisdiction conducted their own election judge training and we can’t say precisely what was said in those training sessions, but the SBE suggested a similar approach. In any event, the revision to the proposed rule eliminates the need for training the election judges as to how the partial counting works with regard to those provisional ballots mistakenly cast in the wrong precincts.

Lastly, it should be noted that the Emergency Rules, though currently in effect, will expire on July 14, 2014, one hundred and fifty days following the publication in the Illinois Register. The Proposed Rules, if approved by JCAR, would be the Rules in effect for the November 4, 2014 General Election.

If you have any further questions or comments, please do not hesitate to contact me.

Ken Menzel
Deputy General Counsel
Illinois State Board of Elections
100 W. Randolph Street, Suite 14-100
Chicago, Illinois 60601

[1] A statistically small number of voters would be expected to cast a provisional ballot in the wrong precinct through innocent error, misdirection by poll workers or election authorities, or even as a result of miscoding by the election authority so as to assign the voter to an incorrect precinct. Having some deterrent to deliberately voting in the wrong precinct (e.g. to create backups and delays in precincts of one’s political opponent’s strongholds, thus suppressing the opponent’s vote totals) serves a legitimate purpose so as to support the continued existence of the affirmation of precinct residence by provisional voters.

[2] The remake process for wrong precinct provisional ballots is categorical, by the offices listed in the statute.  The SBE believes a binary “counted” versus “rejected” is sufficient.  Providing greater detail would entail significant upgrades to the Illinois statewide voter database, for which the General Assembly has not provided funding.

[3] In these three jurisdictions, only mailed absentee voting is done on paper.  All of their in precinct voting is done on DREs.

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