Provisional Ballots

This section covers provisional voting.

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.

 

This article provides 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.

 

Read more: Provisional Voting - DTV Victory For Illinois

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 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.

Ken Menzel responds...Illinois Law Disenfranchises Thousands of Votes

Chicago Board of Elections meeting April 8th, 2014: This video proves that we are correct in many of our "comments to the ISBE rules" which we recently submitted to the ISBE. Tomorrow, we will be at the ISBE (Illinois State Board of Elections) Board meeting to follow-up on these rules.

 

A key point here is that the legislature will be tweaking the law to address flaws that our work uncovered. This is not necessarily good news.

 

The issue is out-of-precinct ballots and the affidavit the provisional voter must make.  Defend the Vote maintains counting out-pf precinct ballots that have a false affidavit verifying the voter lives in the precinct is problematic and likely unlawful.  General Counsel Scanlon says the State's Attorney would likely not investigate...  

 

Stay tuned.  We have much more to say about this.  The summary report linked below provides a good summary of the issues.

 

The full text of our comments:

A summary report of the comments:

4 County Assessment

 

Addendum -

Defend the Vote

Rule 218 Comments - Counting of Provisional Ballots

 

 

 

Addendum - Defend the Vote Rule 218 Comments - Counting of Provisional Ballots by Defend the Vote

ELECTIONS (10 ILCS 5/) Election Code. (10 ILCS 5/Art. 18A heading)

ARTICLE 18A PROVISIONAL VOTING

 

Source: ILCS

 

(10 ILCS 5/18A-2) Sec. 18A-2. Application of Article.

In addition to and notwithstanding any other law to the contrary, the procedures in this Article shall govern provisional voting. (Source: P.A. 93-574, eff. 8-21-03.)

 

(10 ILCS 5/18A-5) Sec. 18A-5. Provisional voting; general provisions.

(a) A person who claims to be a registered voter is entitled to cast a provisional ballot under the following circumstances:

(1) 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 official list is the centralized statewide voter registration list established and maintained in accordance with Section 1A-25;

(2) The person's voting status has been challenged by an election judge, a pollwatcher, or any legal voter and that challenge has been sustained by a majority of the election judges;

(3) A federal or State court order extends the time for closing the polls beyond the time period established by State law and the person votes during the extended time period;

(4) The voter registered to vote by mail and is required by law to present identification when voting either in person or by absentee ballot, but fails to do so;

(5) The voter's name appears on the list of voters who voted during the early voting period, but the voter claims not to have voted during the early voting period; or

(6) The voter received an absentee ballot but did not return the absentee ballot to the election authority.

 

(b) The procedure for obtaining and casting a provisional ballot at the polling place shall be as follows:

(1) After first verifying through an examination of the precinct register that the person's address is within the precinct boundaries, an election judge at the polling place shall notify a person who is entitled to cast a provisional ballot pursuant to subsection (a) that he or she may cast a provisional ballot in that election. An election judge must accept any information provided by a person who casts a provisional ballot that the person believes supports his or her claim that he or she is a duly registered voter and qualified to vote in the election. However, if the person's residence address is outside the precinct boundaries, the election judge shall inform the person of that fact, give the person the appropriate telephone number of the election authority in order to locate the polling place assigned to serve that address, and instruct the person to go to the proper polling place to vote.

(2) The person shall execute a written form provided by the election judge that shall state or contain all of the following that is available:

(i) an affidavit stating the following: State of Illinois, County of ................, Township ............., Precinct ........, Ward ........, I, ......................., do solemnly swear (or affirm) that: I am a citizen of the United States; I am 18 years of age or older; I have resided in this State and in this precinct for 30 days preceding this election; I have not voted in this election; I am a duly registered voter in every respect; and I am eligible to vote in this election. Signature ...... Printed Name of Voter ....... Printed Residence Address of Voter ...... City ...... State .... Zip Code ..... Telephone Number ...... Date of Birth ....... and Illinois Driver's License Number ....... or Last 4 digits of Social Security Number ...... or State Identification Card Number issued to you by the Illinois Secretary of State........

(ii) A box for the election judge to check one of the 6 reasons why the person was given a provisional ballot under subsection (a) of Section 18A-5.

(iii) An area for the election judge to affix his or her signature and to set forth any facts that support or oppose the allegation that the person is not qualified to vote in the precinct in which the person is seeking to vote.

The written affidavit form described in this subsection (b)(2) must be printed on a multi-part form prescribed by the county clerk or board of election commissioners, as the case may be.

(3) After the person executes the portion of the written affidavit described in subsection (b)(2)(i) of this Section, the election judge shall complete the portion of the written affidavit described in subsection (b)(2)(iii) and (b)(2)(iv).
(4) The election judge shall give a copy of the completed written affidavit to the person. The election judge shall place the original written affidavit in a self-adhesive clear plastic packing list envelope that must be attached to a separate envelope marked as a "provisional ballot envelope". The election judge shall also place any information provided by the person who casts a provisional ballot in the clear plastic packing list envelope. Each county clerk or board of election commissioners, as the case may be, must design, obtain or procure self-adhesive clear plastic packing list envelopes and provisional ballot envelopes that are suitable for implementing this subsection(b)(4) of this Section.
(5) The election judge shall provide the person with a provisional ballot, written instructions for casting a provisional ballot, and the provisional ballot envelope with the clear plastic packing list envelope affixed to it, which contains the person's original written affidavit and, if any, information provided by the provisional voter to support his or her claim that he or she is a duly registered voter. An election judge must also give the person written information that states that any person who casts a provisional ballot shall be able to ascertain, pursuant to guidelines established by the State Board of Elections, whether the provisional vote was counted in the official canvass of votes for that election and, if the provisional vote was not counted, the reason that the vote was not counted.
(6) After the person has completed marking his or her provisional ballot, he or she shall place the marked ballot inside of the provisional ballot envelope, close and seal the envelope, and return the envelope to an election judge, who shall then deposit the sealed provisional ballot envelope into a securable container separately identified and utilized for containing sealed provisional ballot envelopes. Ballots that are provisional because they are cast after 7:00 p.m. by court order shall be kept separate from other provisional ballots. Upon the closing of the polls, the securable container shall be sealed with filament tape provided for that purpose, which shall be wrapped around the box lengthwise and crosswise, at least twice each way, and each of the election judges shall sign the seal.

 

(c) Instead of the affidavit form described in subsection (b), the county clerk or board of election commissioners, as the case may be, may design and use a multi-part affidavit form that is imprinted upon or attached to the provisional ballot envelope described in subsection (b). If a county clerk or board of election commissioners elects to design and use its own multi-part affidavit form, then the county clerk or board of election commissioners shall establish a mechanism for accepting any information the provisional voter has supplied to the election judge to support his or her claim that he or she is a duly registered voter. In all other respects, a county clerk or board of election commissioners shall establish procedures consistent with subsection (b).

 

 

(d) The county clerk or board of election commissioners, as the case may be, shall use the completed affidavit form described in subsection (b) to update the person's voter registration information in the State voter registration database and voter registration database of the county clerk or board of election commissioners, as the case may be. If a person is later determined not to be a registered voter based on Section 18A-15 of this Code, then the affidavit shall be processed by the county clerk or board of election commissioners, as the case may be, as a voter registration application. (Source: P.A. 97-766, eff. 7-6-12.)

 

(10 ILCS 5/18A-10) Sec. 18A-10. Sealing and transporting provisional ballots.

(a) Upon the closing of the polls, 2 election judges not of the same political party shall return to the county clerk or board of election commissioners the unopened sealed securable container containing the provisional ballots to a location specified by the county clerk or board of election commissioners in the most direct manner of transport. The county clerk or board of election commissioners shall keep the securable container secure until such time as the provisional ballots are counted in accordance with Section 18A-15.

 

(b) Upon receipt of materials returned from the polling places, the county clerk or board of election commissioners shall update the State voter registration list and the voter registration database of the county clerk or board of election commissioners, as the case may be, by using the affidavit forms of provisional voters. (Source: P.A. 93-574, eff. 8-21-03.)

 

(10 ILCS 5/18A-15) Sec. 18A-15. Validating and counting provisional ballots.

(a) The county clerk or board of election commissioners shall complete the validation and counting of provisional ballots within 14 calendar days of the day of the election. The county clerk or board of election commissioners shall have 7 calendar days from the completion of the validation and counting of provisional ballots to conduct its final canvass. The State Board of Elections shall complete within 31 calendar days of the election or sooner if all the returns are received, its final canvass of the vote for all public offices.

 

 

(b) If a county clerk or board of election commissioners determines that all of the following apply, then a provisional ballot is valid and shall be counted as a vote:

(1) the provisional voter cast the provisional ballot in the correct precinct based on the address provided by the provisional voter. The provisional voter's affidavit shall serve as a change of address request by that voter for registration purposes for the next ensuing election if it bears an address different from that in the records of the election authority. Votes for federal and statewide offices on a provisional ballot cast in the incorrect precinct that meet the other requirements of this subsection shall be valid and counted in accordance with rules adopted by the State Board of Elections. As used in this item, "federal office" is defined as provided in Section 20-1 and "statewide office" means the Governor, Attorney General, Secretary of State, Comptroller, and Treasurer. Votes for General Assembly, countywide, citywide, or township office on a provisional ballot cast in the incorrect precinct but in the correct legislative district, representative district, county, municipality, or township, as the case may be, shall be valid and counted in accordance with rules adopted by the State Board of Elections. As used in this item, "citywide office" means an office elected by the electors of an entire municipality. As used in this item, "township office" means an office elected by the electors of an entire township;

(2) the affidavit executed by the provisional voter pursuant to subsection (b)(2) of Section 18A-5 contains, at a minimum, the provisional voter's first and last name, house number and street name, and signature or mark;

(3) the provisional voter is a registered voter based on information available to the county clerk or board of election commissioners provided by or obtained from any of the following:

i. the provisional voter;

ii. an election judge;

iii. the statewide voter registration database maintained by the State Board of Elections;

iv. the records of the county clerk or board of election commissioners' database; or v. the records of the Secretary of State; and

(4) for a provisional ballot cast under item (6) of subsection (a) of Section 18A-5, the voter did not vote by absentee ballot in the election at which the provisional ballot was cast.

 

(c) With respect to subsection (b)(3) of this Section, the county clerk or board of election commissioners shall investigate and record whether or not the specified information is available from each of the 5 identified sources. If the information is available from one or more of the identified sources, then the county clerk or board of election commissioners shall seek to obtain the information from each of those sources until satisfied, with information from at least one of those sources, that the provisional voter is registered and entitled to vote. The county clerk or board of election commissioners shall use any information it obtains as the basis for determining the voter registration status of the provisional voter. If a conflict exists among the information available to the county clerk or board of election commissioners as to the registration status of the provisional voter, then the county clerk or board of election commissioners shall make a determination based on the totality of the circumstances. In a case where the above information equally supports or opposes the registration status of the voter, the county clerk or board of election commissioners shall decide in favor of the provisional voter as being duly registered to vote. If the statewide voter registration database maintained by the State Board of Elections indicates that the provisional voter is registered to vote, but the county clerk's or board of election commissioners' voter registration database indicates that the provisional voter is not registered to vote, then the information found in the statewide voter registration database shall control the matter and the provisional voter shall be deemed to be registered to vote. If the records of the county clerk or board of election commissioners indicates that the provisional voter is registered to vote, but the statewide voter registration database maintained by the State Board of Elections indicates that the provisional voter is not registered to vote, then the information found in the records of the county clerk or board of election commissioners shall control the matter and the provisional voter shall be deemed to be registered to vote. If 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.

 

(d) In validating the registration status of a person casting a provisional ballot, the county clerk or board of election commissioners shall not require a provisional voter to complete any form other than the affidavit executed by the provisional voter under subsection (b)(2) of Section 18A-5. In addition, the county clerk or board of election commissioners shall not require all provisional voters or any particular class or group of provisional voters to appear personally before the county clerk or board of election commissioners or as a matter of policy require provisional voters to submit additional information to verify or otherwise support the information already submitted by the provisional voter. Within 2 calendar days after the election, the election authority shall transmit by electronic means pursuant to a process established by the State Board of Elections the name, street address, e-mail address, and precinct, ward, township, and district numbers, as the case may be, of each person casting a provisional ballot to the State Board of Elections, which shall maintain those names and that information in an electronic format on its website, arranged by county and accessible to State and local political committees. The provisional voter may, within 7 calendar days after the election, submit additional information to the county clerk or board of election commissioners. This information must be received by the county clerk or board of election commissioners within the 7-calendar-day period.

 

(e) If the county clerk or board of election commissioners determines that subsection (b)(1), (b)(2), or (b)(3) does not apply, then the provisional ballot is not valid and may not be counted. The provisional ballot envelope containing the ballot cast by the provisional voter may not be opened. The county clerk or board of election commissioners shall write on the provisional ballot envelope the following: "Provisional ballot determined invalid.".

 

(f) If the county clerk or board of election commissioners determines that a provisional ballot is valid under this Section, then the provisional ballot envelope shall be opened. The outside of each provisional ballot envelope shall also be marked to identify the precinct and the date of the election.

 

(g) Provisional ballots determined to be valid shall be counted at the election authority's central ballot counting location and shall not be counted in precincts. The provisional ballots determined to be valid shall be added to the vote totals for the precincts from which they were cast in the order in which the ballots were opened. The validation and counting of provisional ballots shall be subject to the provisions of this Code that apply to pollwatchers. If the provisional ballots are a ballot of a punch card voting system, then the provisional ballot shall be counted in a manner consistent with Article 24A. If the provisional ballots are a ballot of optical scan or other type of approved electronic voting system, then the provisional ballots shall be counted in a manner consistent with Article 24B.

 

(h) As soon as the ballots have been counted, the election judges or election officials shall, in the presence of the county clerk or board of election commissioners, place each of the following items in a separate envelope or bag: (1) all provisional ballots, voted or spoiled; (2) all provisional ballot envelopes of provisional ballots voted or spoiled; and (3) all executed affidavits of the provisional ballots voted or spoiled. All provisional ballot envelopes for provisional voters who have been determined not to be registered to vote shall remain sealed. The county clerk or board of election commissioners shall treat the provisional ballot envelope containing the written affidavit as a voter registration application for that person for the next election and process that application. The election judges or election officials shall then securely seal each envelope or bag, initial the envelope or bag, and plainly mark on the outside of the envelope or bag in ink the precinct in which the provisional ballots were cast. The election judges or election officials shall then place each sealed envelope or bag into a box, secure and seal it in the same manner as described in item (6) of subsection (b) of Section 18A-5. Each election judge or election official shall take and subscribe an oath before the county clerk or board of election commissioners that the election judge or election official securely kept the ballots and papers in the box, did not permit any person to open the box or otherwise touch or tamper with the ballots and papers in the box, and has no knowledge of any other person opening the box. For purposes of this Section, the term "election official" means the county clerk, a member of the board of election commissioners, as the case may be, and their respective employees. (Source: P.A. 97-766, eff. 7-6-12; 98-115, eff. 7-29-13.)

 

(10 ILCS 5/18A-20) Sec. 18A-20.

Provisional voting verification system. In conjunction with each county clerk or board of election commissioners, the State Board of Elections shall establish a uniform free access information system by which a person casting a provisional ballot may ascertain whether the provisional vote was counted in the official canvass of votes for that election and, if the vote was not counted, the reason that the vote was not counted. Nothing in this Section shall prohibit a county clerk or a board of election commissioner from establishing a free access information system described in this Section so long as that system is consistent with the federal Help America Vote Act. (Source: P.A. 93-574, eff. 8-21-03.)

Editor's note:  We have also uploaded these to our scrib account.

 

TITLE 26:  ELECTIONS

CHAPTER I:  STATE BOARD OF ELECTIONS

 

PART 218

COUNTING OF PROVISIONAL BALLOTS

 

Section

218.10             General Provisions

218.20             Counting Procedures for Provisional Ballots Cast in an Incorrect Precinct (Within the Same Election Authority's Jurisdiction)

218.30             Counting Procedures for Provisional Ballots Cast in an Incorrect Precinct (Within a Different Election Authority's Jurisdiction)

218.40             Follow-up Procedures

 

AUTHORITY:  Implementing Article 18A of the Election Code [10 ILCS 5/Art. 18A] and authorized by Section 18A-15 of the Election Code [10 ILCS 5/18A-15].

 

SOURCE:  Adopted by emergency rulemaking at 38 Ill. Reg. 4506, effective January 23, 2014, for a maximum of 150 days; adopted at 38 Ill. Reg. ______, effective ____________.

 

Section 218.10  General Provisions

 

This Part implements Article 18A of the Election Code, setting forth procedures to be followed when counting provisional ballots (see Section 18A-5 of the Code) that were voted and cast in a precinct other than the precinct in which the provisional voter is registered.

 

a)         Definitions

 

"Citywide or Villagewide Office" means an office elected by the electors of an entire municipality.

 

"Correct Precinct" means the precinct in which the provisional voter (see subsection (b)) is registered to vote.

 

"Countywide Office" means the offices of Clerk, Sheriff, State's Attorney, Circuit Court Clerk, Recorder, Auditor, County Board President, County Board Member or County Commissioner in those counties that elect those officers countywide, Coroner, Regional Superintendent of Schools, Sanitary District Commissioners/Trustees, Assessor, Board of Review Members in those counties that elect those officers countywide, and Treasurer.  Some of the above offices are not elected offices in certain counties as they are appointed or simply do not exist in the county.

 

"Election Authority" means either the County Clerk, County Board of Election Commissioners or Municipal Board of Election Commissioners, as the case may be.

 

"Election Code" or "Code" means 10 ILCS 5.

 

"Election Jurisdiction" means an entire county, in the case of a county in which no city board of election commissioners is located or that is under the jurisdiction of a county board of election commissioners; the territorial jurisdiction of a city board of election commissioners; and the territory in a county outside of the jurisdiction of a city board of election commissioners. In each instance, election jurisdiction shall be determined according to which election authority maintains the permanent registration records of qualified electors.

 

"Incorrect Precinct" means the precinct in which the voter cast a provisional ballot, but is not the precinct in which he/she is registered to vote. In order for a provisional ballot to be eligible for counting when cast in an incorrect precinct, that precinct must be located within either the county or municipality in which the voter is registered.

 

"Leading Established Political Party" means one of the two political parties whose candidates for Governor at the most recent 3 gubernatorial elections received either the highest or second highest average number of votes. The first leading political party is the party whose candidate for Governor received the highest average number of votes in the 3 most recent gubernatorial elections and the second leading political party is the party whose candidate for Governor received the second highest average number of votes in the 3 most recent gubernatorial elections.

 

"Persons Entitled to Vote Provisionally" or "Provisional Voter" means a person claiming to be a registered voter who is entitled by Section 18A-5 of the Code to vote a provisional ballot under the following circumstances:

 

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 person's voting status has been successfully challenged by an election judge, a pollwatcher or any legal voter;

 

A federal or State court order extends the time for closing the polls beyond the time period established by State law and the person votes during the extended time period;

 

The voter registered to vote by mail and is required by law to present identification when voting either in person or by absentee ballot, but fails to do so;

 

The voter's name appears on the list of voters who voted during the early voting period, but the voter claims not to have voted during the early voting period; or

 

The voter received an absentee ballot but did not return the absentee ballot to the election authority, and failed to surrender it to the election judges. (Section 18A-5 of the Code)

 

"Statewide Office" means the Constitutional offices of Governor and Lt. Governor running jointly, Secretary of State, Attorney General, Comptroller and Treasurer.

 

"Township Office" means an office elected by the electors of an entire township.

 

b)         Procedures for Voting Provisionally in the Polling Place

 

1)         If any of the 6 reasons (cited in the definition of provisional voter in subsection (a)) for casting a provisional ballot exists, an election judge must accept any information provided by a person who casts a provisional ballot that the person believes supports his or her claim that he or she is a duly registered voter and qualified to vote in the election. However, if the person's residence address is outside the precinct boundaries, the election judge shall inform the person of that fact, give the person the appropriate telephone number of the election authority in order to locate the polling place assigned to serve that address (and/or consult any alternative tools provided by the election authority for determining a voter's correct precinct polling place) and instruct the person to go to the proper polling place to vote. (Section 18A-5(b)(1) of the Code) If the person insists on voting in the polling place even after being informed that the polling place is for a precinct in which he or she is not registered (the incorrect precinct) the judges of election shall inform the voter that:

 

A)        by voting in the incorrect precinct, some of the votes cast will not be counted if it is later determined that the voter was not entitled to cast votes for those offices by virtue of the fact that the address at which the voter is registered is not located within the district, county, township or municipality for which he or she has cast votes; and

 

B)        votes for other offices such as judicial, park district, library district or school district and referenda (including Statewide) are not eligible to be counted.

 

2)         Once it has been determined by the election judges that the person is entitled to receive a provisional ballot, and the voter has completed the provisional voter affidavit (see Section 18A-5(b)(2) of the Code), the voter shall be given a provisional ballot and shall proceed to vote that ballot.  Upon receipt of the ballot by the election judges, the ballot shall be transmitted to the election authority in accordance with Section 18A-10(a) of the Election Code.

 

Section 218.20  Counting Procedures for Provisional Ballots Cast in an Incorrect Precinct (Within the Same Election Authority's Jurisdiction)

 

a)         The election authority shall:

 

1)         transmit to the State Board of Elections the provisional voter's identifying information and voting jurisdiction (see Section 18A-15(d) of the Code) within 2 calendar days. Following that, and subject to subsection (2) below, if the election authority having jurisdiction over the provisional voter determines that the voter has cast a provisional ballot in an incorrect precinct, the ballot shall still be counted using the procedures established in subsection (b) or Section 218.30 if applicable.  Jurisdictions that use election machines authorized pursuant to Article 24C of the Election Code for casting provisional ballots may vary procedures of this Section and Section 218.30 as appropriate for the counting of provisional ballots cast on those machines.

 

2)         determine whether the voter was entitled to cast a provisional ballot.  The voter is entitled to cast a provisional ballot if:

 

A)        the affidavit executed by the voter contains, at a minimum, the provisional voter's first and last name, house number and street name, and signature or mark (Section 18A-15(b)(2) of the Code);

 

B)        the provisional voter is a registered voter based on information available to the county clerk or board of election commissioners provided by or obtained from the provisional voter, an election judge, the Statewide voter registration database maintained by the State Board of Elections, the records of the county clerk or board of election commissioners' database, or the records of the Secretary of State (Section 18A-15(b)(3) of the Code); and

 

C)        the provisional voter did not vote by absentee ballot and did not vote during the period for early voting (Section 18A-15(b)(4) of the Code).

 

b)         Once it has been determined by the election authority that the voter was entitled to vote a provisional ballot, even though it had been cast in an incorrect precinct, the election authority shall select a team or teams of 2 duly commissioned election judges, one from each of the two leading established political parties in Illinois (currently the Democratic Party and Republican Party) to count the votes that are eligible to be cast on the provisional ballot. In those jurisdictions that use election officials as defined in Section 18A-15(h) of the Code, these duties may be performed by those election officials.

 

1)         Votes cast for Statewide offices, the Office of President of the United States (including votes cast in the Presidential Preference Primary), and United States Senate shall be counted on all provisional ballots cast in the incorrect precinct.

 

2)         Votes cast for Representative in Congress, delegate/alternate delegate to a national nominating convention, State Senator, State Representative, or countywide, citywide or township office shall be counted if it is determined by the election judges or officials that the voter would have been entitled to vote for one or more of these offices had the voter voted in the precinct in which he or she is registered to vote (i.e., the correct precinct) and had the voter voted a ballot of the correct ballot style containing all the offices and candidates for which the voter was entitled to cast a ballot (the correct ballot style).  This determination shall be made by comparing a sample ballot of the correct ballot style with the actual provisional ballot cast by the voter. If the same office (including the same district number for a Congressional, Legislative or Representative district) appears on both the correct ballot style sample ballot and the provisional ballot cast by the voter, votes for that office shall be counted.  All votes cast for any remaining offices (offices for which the voter would not have been entitled to vote had he or she voted in the correct precinct) shall not be counted. 

 

3)         No votes shall be counted for an office when the voter voted for more candidates than he/she was allowed.

 

4)         Once it has been determined which offices are to be counted and the provisional ballot contains no other votes, the provisional ballot shall be counted pursuant to the procedures set forth in this subsection (b).

 

5)         If a provisional ballot does not contain any valid votes, the provisional ballot shall be marked invalid and shall not be counted.

 

6)         Any provisional voting verification system established by an election authority shall inform the provisional voter that his or her provisional ballot was partially counted because it was cast in an incorrect precinct.

 

7)         If a provisional ballot only contains votes cast for eligible offices, and does not contain any votes cast for ineligible offices, the ballot may be tabulated without having to be remade.

 

8)         If a provisional ballot contains both valid votes that must be counted and invalid votes that cannot be counted:

 

A)        the election judges, consisting in each case of at least one of each of the 2 leading political parties, shall, if the provisional ballot was cast on a paper ballot sheet, proceed to remake the voted ballot onto a blank ballot that includes all of the offices for which valid votes were cast, transferring only valid votes. The original provisional ballot shall be marked "Original Provisional Ballot" with a serial number commencing at "1" and continuing consecutively for ballots of that kind in the precinct. The duplicate provisional ballot shall be marked "Duplicate Provisional Ballot" and be given the same serial number as the original ballot from which it was duplicated. The duplicate provisional ballot shall then be treated in the same manner as other provisional ballots.

 

B)        if the provisional ballot was cast on a direct recording electronic voting device, the election judges shall mark the original provisional ballot as a partially counted defective electronic provisional ballot because it was cast in the incorrect precinct (or bear some similar notation) and proceed to either:

 

i)          remake the voted ballot by transferring all valid votes to a duplicate paper ballot sheet of the correct ballot style, marking the duplicate ballot "Duplicate Electronic Provisional Ballot" and then counting the duplicate provisional ballot in the same manner as the other provisional ballots marked on paper ballot sheets; or

 

ii)         transfer, or cause to be transferred, all valid votes electronically to the correct precinct, which shall be counted and added to the vote totals for the correct precinct, excluding any votes that cannot be counted.

 

c)         For provisional ballots cast at a partisan primary election, the judges shall use a duplicate ballot of the correct ballot style for the same political party as the ballot chosen by the voter.

 

d)         At least one qualified pollwatcher for each candidate, political party, and civic organization, as authorized by Section 17-23 of the Code, shall be permitted to observe the ballot remaking process.

 

Section 218.30  Counting Procedures for Provisional Ballots Cast in an Incorrect Precinct (Within a Different Election Authority's Jurisdiction)

 

a)         Incorrect Precinct is Located in the Same County as the County Where the Voter is Registered

The election authority having possession of the provisional ballot shall first notify the election authority having jurisdiction over the provisional voter that the voter cast a provisional ballot in its jurisdiction and provide whatever information is needed for the election authority to comply with the notification requirements set forth in Section 18A-15(d) of the Code.  If a voter cast a provisional ballot in an incorrect precinct located in the jurisdiction of an election authority other than the election authority having jurisdiction over the voter's correct precinct, but where the precinct is located within the same county as the 2 election authorities (e.g., a voter is registered in the City of Chicago, but casts a provisional ballot in suburban Cook County), the election authority in whose territory the provisional ballot was cast shall, after receipt of the provisional ballot, transmit it, along with the provisional voter's affidavit and any other documentation provided to the election judges, to the office of the election authority having jurisdiction over the voter's correct precinct. The ballot shall be transmitted within 8 business days after the election at which it was cast.  If the locations of the election authorities' offices are such that it is feasible to hand deliver the ballot, the ballot shall be transmitted in that manner by 2 election judges (or election officials), one from each of the 2 leading political parties.  If the locations of the 2 election authorities are such that it is not feasible to hand deliver the ballot, the election authority having jurisdiction over the incorrect precinct shall cause the ballot to be transmitted via express mail within 8 business days after the election at which the ballot was cast, with a delivery date no later than the second business day following the mailing date.  Upon receipt of the ballot by the election authority having jurisdiction over the correct precinct, the election authority shall proceed to remake, and count the votes on, the provisional ballot in accordance with the procedures described in Section 218.20, including the determination of eligibility to cast a provisional ballot.  Any information provided to the election authority within the 7 day period provided for in Section 18A-15 of the Code shall be transmitted to the office of the election authority having jurisdiction over the voter's correct precinct, along with the provisional ballot of that voter.

 

b)         Incorrect Precinct is Located in a Different County from the County Where the Voter is Registered, but is Located in the Same Municipality as the One in Which the Voter is Registered

 

1)         The election authority having possession of the provisional ballot shall first notify the election authority having jurisdiction over the provisional voter that the voter cast a provisional ballot in its jurisdiction and provide whatever information is needed for the election authority to comply with the notification requirements set forth in Section 18A-15(d) of the Code.  The election authority shall then cause the ballot, along with the provisional voter's affidavit and any other documentation provided to the election judges, to be transmitted via express mail within 8 business days after the election at which the ballot was cast, with a delivery date no later than the second business day following the mailing date.  Upon receipt of the ballot by the election authority having jurisdiction over the correct precinct, that election authority shall proceed to remake and count the votes on the provisional ballot in accordance with the procedures described in Section 218.20, including the determination of eligibility to cast a provisional ballot.  Any information provided to the election authority within the 7 day period provided for in Section 18A-15 of the Code shall be transmitted to the office of the election authority having jurisdiction over the voter's correct precinct, along with the provisional ballot of that voter.

 

2)         If a voter casts a provisional ballot in a precinct outside of the county in which he or she is registered and outside of the municipality in which he or she is registered (if applicable), the ballot shall not be counted.  It shall, however, be transmitted via the U.S. Postal Service to the election authority having jurisdiction over the voter's correct precinct within 14 days after the election and shall be kept for 2 months, the same length of time as is required for other voted ballots.

 

Section 218.40  Follow-up Procedures

 

The original provisional ballot cast by the voter shall be stored separately from other ballots voted in the election and shall be preserved in the same manner as original ballots that had to be remade for other reasons, such as a damaged ballot or as a result of a voter over-voting an office.

Last July the Illinois General Assembly passed HB2418. This bill added a couple of sentences to the Provisional Voting Law (ILCS 10/5 18A) that is worded to permit the counting of votes for federal and state candidates which are cast provisionally as ‘out-of-precinct’ ballots. Rule 218 is the set of rules written by the Illinois State Board of Elections to implement these changes. Provisional voting has always been restricted to residents voting within the precinct in which they reside. 

 

Why this new rule was tossed into HB 2418 permitting people to vote outside of their resident precinct remains unexplained.  The impact of it, Defend the Vote warned voters in Illinois about this in the article "It's Kinda of a Disaster Waiting To Happen".  Our analysis, however was just completed on Monday, March 31st. We delved deeply into every aspect of the Law (18A – Provisional Voting) and the JCAR 218 Proposed Rules written by the Illinois State Board of Elections (ISBE) in order to submit comments to JCAR (Joint Committee on Administrative Rules) and the ISBE.

 

Read the full article The Disaster About to Happen In Illinois Elections

Provisional Voting in Illinois

Comments to Part 218 – Counting of Provisional Ballots

 

Summary Statement:

 

This analysis is written to provide public comment on the proposed rules in Part 218 (Counting of Provisional Voting) found in Title 26 Chapter I: State Board of Elections. These proposed rules are known as JCAR 260218-1404328r01. The proposed JCAR rules were written by the Illinois State Board of Election.  They are currently under Emergency Authorization by action of JCAR on March 19th, 2014.  The Illinois State Board claims these rules are authorized by the passage of HB 2418 in July of 2013 and can be found in 10 ILCS 5/18A-15(b)(1).

Read more: Provisional Voting in Illinois  Comments to Part 218 – Counting of Provisional Ballots

Section 5/18A-15 (b) Validating and Counting Provisional Ballots: Subsection 15(b) was modified and is the reason that the Illinois State Board of Elections is tasked to write rules to address the changes.  The italisized words are the words that were added.

 

 (b) If a county clerk or board of election commissioners determines that all of the following apply, then a provisional ballot is valid and shall be counted as a vote:

 

        (1) the provisional voter cast the provisional ballot in the correct precinct based on the address provided by the provisional voter. The provisional voter's affidavit shall serve as a change of address request by that voter for registration purposes for the next ensuing election if it bears an address different from that in the records of the election authority. Votes for federal and statewide offices on a provisional ballot cast in the incorrect precinct that meet the other requirements of this subsection shall be valid and counted in accordance with rules adopted by the State Board of Elections. As used in this item, "federal office" is defined as provided in Section 20-1 and "statewide office" means the Governor, Attorney General, Secretary of State, Comptroller, and Treasurer. Votes for General Assembly, countywide, citywide, or township office on a provisional ballot cast in the incorrect precinct but in the correct legislative district, representative district, county, municipality, or township, as the case may be, shall be valid and counted in accordance with rules adopted by the State Board of Elections. As used in this item, "citywide office" means an office elected by the electors of an entire municipality. As used in this item, "township office" means an office elected by the electors of an entire township;

 

 

Sharon Meroni
March 19, 2014

 

Provisional Voting – Comments for the March 19th JCAR

This filing relates to the Emergency Rules which were implemented for the March 18th Primary election in Illinois.  Due to the timing, this is a cursory review.  The JCAR meeting is at 10am March 19th, on the morning after the election.  A more complete review will be forthcoming shortly.

 

Read more: 4 County Assessment

We recently reported on provisional voting in Illinois. "It's Kinda a Disaster Waiting to Happen" There was a very frank discussion about the consequences of the new law at the Chicago Board of Elections meeting on September 10, 2013. We have taken this 28 minute clip which contains the full discussion and placed it into a separate video. This is a very important bit of information and we highly recommends that you listen to this to truly understand how elections in Illinois are about to change…

 

Meanwhile, Defend the Vote has been investigating how to prevent this “nightmare” from happening in 2014. We are investigating legal solutions and will be informing the public about this in the near future.

 

 

 

Watch the VideoThe Nightmare of Provisional Voting in Illinois

Sharon Meroni and Meg write about Provisional Ballots in Illinois.  HB 2418 is a disaster waiting to happen!

Editor's Note: HB2418 was passed by the Illinois General Assembly. The Illinois State Board of Elections then writes Administrative Rules to implement the legislation. These rules have been written and submitted to JCAR which is reviewing and preparing them for a public comment period. We will let you know when this happens. Illinois citizens can have an impact on these rules. The law went into effect in July 2013 after it was passed by the Illinois General Assembly and signed by Governor Quinn.

 

Illinois has long had a law that states in order for a provisional ballot[i] to be counted, the voter must cast their vote in the right voting precinct.

 

The General Assembly has fundamentally changed this law with HB 2418[ii].  Election officials described the impact of these changes during the Chicago Board of Elections meeting on September 10th as disastrous, ugly, and a nightmare.

 

Read More: Disaster Waiting to Happen" - View Video"It’s kind of a disaster waiting to happen" State Board's Legal Counsel on Provisional Voting in Illinois

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