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A “HUGE RED ALERT”
(May 8, 2014) — I apologize if my last article was over complicated or confusing. Communicating details about election security can be challenging – the balance between detail and overview not always easy to juggle. This article (Illinois Law Disenfranchises Thousands of Votes) was based around the email from Ken Menzel, Deputy General Counsel for the Illinois State Board of Election (ISBE), and had three vital issues wrapped into one article: The radical revision of the Provisional Voting JCAR Rules following Defend the Votes comments; the counting of 500-1000 out-of-precinct Provisional ballots from the March 2014 Primary Election where the voter stated on a voter affidavit that he resides in the precinct but does not; and the issue of the forced “No” vote on constitutional amendments on all out-of-precinct ballots in the upcoming November elections.
To provide more clarity to these issues, I decided to do a three part series; one part for each area. These issues are important.
This first article will give a quick synopsis of the critical change to the proposed provisional voting rules after Defend the Vote took a stand on the issue and as described by Deputy General Counsel, Ken Menzel. This is only a partial analysis because we do not have the new version yet; just an email describing the changes. Thankfully, we did win a significant victory!
Legally, provisional voting is restricted to voters who’s right to cast a ballot is questioned and who are seeking to vote in their residential precinct on Election Day. After the election judge confirms the voter’s address is in the precinct, the voter must sign an affidavit attesting he resided at the residence for the past 30 days. Then the election judge is authorized to give a PV ballot to the voter.
Historically, following the elections, PV ballots cast by voters out of their residential precinct were rejected after the voter was determined to be in the wrong precinct. The entire provisional ballot was accepted if the voter was in the correct precinct and if he was correctly registered and had not already voted. Roughly 95% of provisional balloting is cast in urban areas. The number of ballots impacted varies from election to election; state-wide ranging from 1000-3000 ballots, but many more votes.
Changes to the provisional voting law occurred last July when the General Assembly changed 10 ILCS 5/18A-15(b)(1) to authorize the counting of votes for some federal and state offices and mandating the ISBE adopt rules to implement that mandate. These rules are adopted by the ISBE and submitted to JCAR (Joint Committee Administrative Rules) for final approval. They go through 2 re-writes before they receive final approval. Defend the Vote filed comments to the proposed provisional voting rules last March.
The first edition of the proposed rules were put in effect for the March 2014 Primary as Emergency Rules.
The ISBE proposed rules vastly changed the legal procedures for provisional voting even though the very same statute forbids them from writing rules that contradict the statute. Incredibly, these proposed rules allow for an insistent voter to demand that the election judge give him a provisional ballot even though the statue forbids the election judge from doing so. I discuss this in the JCAR comments:
“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.” (Defend the Vote JCAR comments line 678-682)
These rules also allowed a voter to vote a provisional ballot in any polling place that they choose within their county and municipality. For me, I live in a municipality that has 4 counties that run through it; the proposed rules (in effect as Emergency Rules) allowed me to choose to vote a provisional ballot in McHenry, Lake, Cook, and Kane County.
When we tested the readiness of election officials for this change in March 2014, we uncovered many problems including unsealed voted ballots left in the polling place. A big no-no in Illinois law.
Defend the Vote comments argued that the proposed rules allowed for voters to falsely affirm in voter affidavits that they resided within the precinct when they do not. 500-1000 ballots were counted in the March Primary where the voter falsely affirmed that they were residents in the precinct, but they apparently were not. (More on this in the next article.)
We also argued the new geographical boundaries were randomly contrived. We have not finished on this point yet. According to Ken Menzel, in the revised version, they increased the area where a PV ballot cast in the wrong precinct will have the votes count to include the entire congressional district. There is no logic to this geographical distinction, legally or administratively. The key question remains, under what reason can a voter legally be given a provisional ballot if they don’t live in the precinct?
THE FIRST VICTORY: After our comments, the Board reduced the provisional voting process to require the voter to ‘believe they are in the correct precinct.’ In the first version a voter could vote a PV ballot for any reason in any polling place within the defined geographical territories. This totally redefined provisional voting laws by administrative rules.
The changes in the revised PV rules are summarized by Ken Menzel:
“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.”
Thankfully, these revised rules drastically alter who can cast a provisional ballot, reverting back to the intent of the law which is that a provisional ballot is only authorized for someone who resides in that precinct. A voter residing out of a precinct cannot demand the right to cast a provisional ballot there. The election judge cannot even issue the application to that voter if he does not live in the precinct.
I have written back to Ken Menzel, once again requesting that they define under what circumstances a voter can get a ballot for the wrong precinct. Until these reasons are defined, the rules will fail. My comment to Ken:
“If you cannot provide reasons, how does the Judge of Election administering the ballot or counting it determine the “genuine belief” of a voter who has signed an affidavit that he lives in a precinct where he does not live?
“I am stunned that this Board has made no response to my allegation that in March, 500-1000 ballots are authenticated by the same number of proven false affidavits. Nor, has this Board officially recommended that legal officials or election authorities investigate if this is systematic fraud or truly, have so many people misstated their residence? Maybe if we asked these voters why we could determine justifiable reasons that a voter might misstate their residence for the last 30 days as affirmed on their voter affidavit. Also, has the Board investigated if any close races may have been impacted?
“If mandated procedures in the statute are properly followed, the ONLY reason that a voter should be given a ballot in the wrong precinct is by error of the election officials. It is the duty of the election officials to confirm the resident address is in the precinct before a ballot application or voter affidavit is given. If this is the cause, I believe a voter should have his ballot count. On the other hand, if the voter does not know where they have lived the last 30 days such that they claim they lived at a residence in the precinct but did not, I am very concerned about their lucidity to cast a competent ballot. It is also a HUGE RED ALERT for voter fraud! The rules should require that the election authorities authenticate the reason the vote is cast in a wrong precinct before counting it.”
So now we know, the key provisional voting law in Illinois will not be gutted by the proposed JCAR rules. There are other issues remaining. The next article will discuss the issue of those false voter affidavits; the counting of 500-1000 out-of-precinct Provisional ballots from the March 2014 Primary Election where the voter stated on a voter affidavit that he resides in the precinct but does not.