Vote Counting and Certification Process

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Note: I originally wrote this on Thursday and planned to publish it on Friday morning. However on Thursday night news broke about some complications at the Chicago Board of Elections and I wanted to take some more time to think about it in that context. (you can read the CBOE’s response to these issues here.) But then on Friday we saw some adjusted numbers in Wabash County when they found and corrected a previous error, a normal part of the process and I decided that it still made sense to try and explain this process and to point out that it has enough moving parts that simple errors are a normal part of the process and are not necessarily a sign of fraud or incompetence.

Important note: I am not an election attorney, this is for reference only.

We continue to see vote totals update in the Illinois State Treasurer’s race despite the fact that the election was well over a week ago. Since this will go on for a little while I wanted to put together a quick primer with some key dates and explanations about the process plus a small FAQ for some of the more common questions.

Key Dates:

11/18/2014Deadline to validate and count ballots.
Description:

Deadline for the county clerk or board of election commissioners to complete the tabulation of absentee ballots that were (1) postmarked by midnight preceding the opening of the polls on Election Day, and were received after the close of the polls on Election Day but not later than 14 days after the election, or (2) not postmarked at all, but did have a certification date prior to the Election Day on the certification envelope, and were received after the close of the polls on Election Day but not later than 14 days after the election.
(10 ILCS 5/19-8)

11/25/2014Last day for canvassing.
Description:

Last day for canvassing election results by proper canvassing board (county canvassing board or board of canvassers).
(10 ILCS 5/18A-15(a), 22-1)

11/30/2014 – tentative date of board meeting of the State Board of Elections to certify the results.

So 11/18 is the last day that the election authorities can accept valid Vote By Mail votes and then they are supposed to finalize their vote totals so the canvass can begin. The canvass must end by 11/25 and by that date the election authorities are supposed to certify their results and submit the certified results to the State Board of Elections and the Illinois SBE is tentatively set to meet on 11/30 to certify the results.

Most counties should have their final updated results sometime by the end of the day on 11/18, although some counties have said that their updated results would not be made publicly available until 11/19. Either way, unless any errors are found during the canvass the final updated totals from each election authority should be available on the 18th – 19th.

Frequently Asked Questions:

Why are only some counties still counting votes while others are not?
This is inaccurate. Every county and municipal election authority can still receive valid, legal votes so every election authority in the state is still going through the process of potentially receiving and counting votes. Some county and municipal election authorities (such as Chicago and Cook County) have been giving regular updates throughout which is why they have received so much attention while most have not provided any new updates since election night. For example, this is what Sangamon County lists on the top of their election night election results page:

MAILED ABSENTEE BALLOTS RECEIVED AFTER 7PM 11/4/2014 AND PROVISIONAL BALLOTS WILL NOT BE INCLUDED IN THESE TOTALS UNTIL AFTER NOVEMBER 18, 2014.

This is the most common method, most counties are not updating their totals with these new additional votes and will not have any further update until 11/18.

For example, see this article on the Champaign News-Gazette about the additional votes expected to be made public in the counties of east central Illinois.

This happens in every election every year. The results announced on election night are not final and the totals that get certified about a month later always include additional votes. Usually the various races are not close enough to be affected by these additional votes which is why most people are unaware of how this process works but everything that is taking place right now in the vote counting process is perfectly normal and typical.

Why is it so complicated to count all the votes?
There are 5 different ways a person can vote and the clerks have to manage and track all of these different types of votes and then take steps to ensure that valid registered voters voted no more than once. This requires that they keep and manage very detailed records yet at the same time they need to protect the integrity of the secret ballot so they have to protect each voter’s privacy as well, that is very challenging. Then when it comes time to tabulate the final totals they need to count them by precinct despite the fact that many votes (early vote, vote by mail) were not made in the actual precinct on election day. It would be very easy to make simple mistakes so the clerks take careful steps to ensure they get it right.

Here are all the different types of votes:

  • Election Day Votes – these are the traditional votes made by a voter in person at their precinct on election day.
  • Early Votes – these are votes made by the voter in person at an early vote location prior to election day.
  • Vote By Mail – a voter may now for any reason complete an application to have a ballot sent to them by mail which they may fill out and return by mail. The ballot must be post marked by the day before election day and can be received and counted up until 14 days after election day.
  • Same Day Registration – this is the first year for same day registration, eligible voting age people who were not yet registered to vote could register on election day and cast a ballot.
  • Provisional Votes – voters who attempted to vote on election day but for whatever reason were deemed ineligible are allowed to cast a provisional ballot. The election authority then reviews these provisional ballots on a case by case basis to determine if the ballot is valid and should be counted or not.

What votes are included in the publicly available totals?
In most cases the following types of votes are included in the totals that are already publicly available from each election authority:
– all early votes made prior to election day.
– all election day votes made in each precinct on election day.
– all Vote By Mail votes that were received by the election authority by election day.

What votes are still being counted and/or are not yet publicly available?
In most cases these types of votes are not yet included in the publicly available totals:
– valid Vote By Mail ballots that were received after election day. (a very few election authorities have made these totals available via updates, but very few)
– provisional ballots. Also, I believe that the clerks are treating the same day registration ballots as provisional ballots so those votes are not yet updated as well.

When will all the votes be counted and the totals publicly available?
11/18 is the last day that the election authorities can accept valid Vote By Mail votes and then they are supposed to finalize their vote totals so the canvass can begin. The canvass must end by 11/25 and by that date the election authorities are supposed to certify their results and submit the certified results to the State Board of Elections and the Illinois SBE is tentatively set to meet on 11/30 to certify the results.

2014 IL-GOV/LT GOV: How Does it Work?

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There have been a few changes in the law that will affect how the Governor and Lt. Governor will be elected in 2014. I’ll cover those changes and their impact below but I’m still left with one unanswered question: can a Lt. Governor candidate raise and spend funds in support of his/her election and if so how does that work?

Let me begin by saying I’m not an election attorney (or attorney of any kind for that matter) so just because I have unanswered questions isn’t necessarily a cause for alarm. However two key changes in the election code will be in effect for the first time in a Governor’s race for the 2014 election:

  1. Contribution limits – the law implementing contribution limits went into effect January 1, 2011 for the start of the 2012 election cycle. The law limits a candidate for elected office to a single “candidate political committee” and provides for contribution limits of amounts depending on the donor type and the office sought. The language on candidate committees and contribution limits can be found in Article 9 of the election code.
  2. Joint nomination of candidates for the offices of Governor and Lieutenant Governor – in 2010 HB5820 which became Public Act 96-1018 changed the election law so that the Governor and Lt. Governor would appear on a primary ballot as a team and be voted on as a joint pair. This bill was passed in the aftermath of the messy divorce between Democratic nominees for Governor and Lt. Governor Pat Quinn and Scott Lee Cohen in the 2010 primary. As you can see from reading the public act the language provides a mechanism for how the process is supposed to work to nominate a joint ticket of Governor and Lt. Governor and is silent on other concerns with this new situation.

Prior to either of these laws going into effect the Governor and Lt. Governor were elected separately and because there were no contribution limits either candidate or both could have as many committees as they wanted. Sometimes candidates for Governor and Lt. Governor would agree to campaign as a team (even though both would still be required to win independent elections) and other times the elections for Governor and Lt. Governor went forward with the candidates willing to let the elections play out and deal with any outcome.

In 2006 Republican Gubernatorial candidate Ron Gidwitz agreed to campaign with Lt. Governor Candidate Steve Rauschenberger and even though each candidate had their own candidate committee for their campaign funds (Gidwitz for Governor and Citizens for Rauschenberger, respectively) they also decided to create a 3rd joint committee called the Illinois Turnaround Team for funds that would ostensibly be used to pay for campaign activities to support both candidates. I can’t think of any legal advantage gained by creating a 3rd committee, it seemed to be only for cosmetic purposes as they campaigned publicly as part of a team (a turnaround team) working jointly. Ultimately both candidates were unsuccessful in their respective primaries but it’s a good example of the various options that were available to candidates prior to the new laws going into effect.

In the 2010 Democratic primary the campaigns for Governor and Lt. Governor proceeded independently and in the end Pat Quinn secured the Gubernatorial nomination while Scott Lee Cohen was the victorious Lt. Governor candidate. Cohen later dropped out after pressure by Quinn and other Democratic leaders. Subsequently the Democratic party selected Shelia Simon as a replacement candidate at Quinn’s behest. Simon could have legally created a campaign committee to raise and spend funds in support of this election however she never opened one in her own name. Quinn has had the longstanding Taxpayers for Quinn committee and also in the spring of 2010 they created a committee called Quinn/Simon for Illinois which was used to raise and spend a significant amount of funds in support of the Quinn/Simon ticket that fall. Again this joint committee doesn’t appear to have provided the Quinn/Simon campaign with any additional legal advantages it simply had the cosmetic effect of a ticket working together.

Looking ahead to 2014 it appears that the law that implemented campaign contribution limits for the first time will also prevent the creation of these additional joint committees as a candidate is limited to one and only one candidate committee:

(10 ILCS 5/9-2) (from Ch. 46, par. 9-2)
Sec. 9-2. Political committee designations.
(a) Every political committee shall be designated as a (i) candidate political committee, (ii) political party committee, (iii) political action committee, (iv) ballot initiative committee, or (v) independent expenditure committee.
(b) Beginning January 1, 2011, no public official or candidate for public office may maintain or establish more than one candidate political committee for each office that public official or candidate holds or is seeking. The name of each candidate political committee shall identify the name of the public official or candidate supported by the candidate political committee. If a candidate establishes separate candidate political committees for each public office, the name of each candidate political committee shall also include the public office to which the candidate seeks nomination for election, election, or retention. If a candidate establishes one candidate political committee for multiple offices elected at different elections, then the candidate shall designate an election cycle, as defined in Section 9-1.9, for purposes of contribution limitations and reporting requirements set forth in this Article. No political committee, other than a candidate political committee, may include the name of a candidate in its name.

What is less clear is how the law applies to someone running for Lt. Governor. Here are a number of questions that immediately come to mind:

  • Now that a candidate for Lt. Governor is no longer elected independently are these candidates still allowed to raise and spend funds in support of their own election (primary and general)?
  • If yes, can they accept contributions from donors that have already maxed out to the Gubernatorial candidate they will be nominated with?
  • If yes, are they allowed to coordinate all of their electoral activities with the Gubernatorial candidate they will be nominated with including making joint fundraising appeals for twice the legal limit (half to the Gubernatorial committee/half to the Lt. Governor committee) and fully coordinated spending decisions from both committee accounts?
  • Pay to play legislation outlawed campaign contributions to any candidate for an office where the donor has been awarded a contract by that officeholder. Could a Lt. Governor candidate accept contributions from donors that are prohibited from giving to a gubernatorial candidate under this provision? Could they then spend those funds in support of their ticket? Can they coordinate that spending decision with the Gubernatorial candidate they will be nominated with and who would not be legally allowed to accept such a donation?

It’s entirely possible all of these questions have very clear answers explicitly stated in the law, I’m not an election attorney and even though I have a lot of experience dealing with the Illinois election code I freely admit I’m no expert. But if some of these questions don’t have clear answers hopefully the legislature can use the upcoming spring session to clarify the election code prior to the 2014 election cycle kicking into full gear.