To the members of the Illinois General Assembly:
I ask you to review the Illinois election code and consider making some changes. It is currently impermissible for county clerks (or municipal election authorities) to count the ballots of completed early voters and/or the ballots of completed vote by mail voters prior to the polls closing at 7pm on election night.
In 2014 the Attorney General provided clarification to the LaSalle County State's Attorney on this matter after reviewing the clear language of the law and concluded that "no absentee voters' ballots or early voters' ballots should be placed into the tabulators prior to 7:00 p.m. on the day of the election." She shared this opinion with all of the local election authorities.
I hope that the General Assembly will consider reviewing this matter and consider permitting the election authorities to count completed ballots as they see fit so long as they do not release or make public any results before the polls close, for two reasons:
Because election authorities are not allowed to count early/VBM ballots prior to the polls closing many don't start counting them until after they get all of their election night precinct totals completed and reported. This often means that on election night even if you see 100% of the precincts reported in a particular county they may still have plenty of early and vote by mail ballots in hand that still need to be counted, which can give a misleading impression to people watching the returns at home.
On the afternoon of general election 2016 I looked up the current totals for early vote and vote by mail and posted that 352,428 vote by mail ballots had already been returned while another 1,390,019 had early voted statewide. Combine these figures with the 44,722 grace period voters and it adds up to at least 1,787,169 ballots completed prior to election day. The total number of ballots cast for the 2016 general election was 5,666,118 which means that 31.5% of the total ballots cast in Illinois in the 2016 general election were already in the hands of the various election authorities by the morning of election day.
To point #1 above, it's concerning that voters at home watching returns on election night are led to believe that most or all of the vote has been counted, especially in very close races, when in reality as much of a third of the vote in hand may not be included in the returns even though 100% of the precincts are listed as reported. It is potentially misleading and can cause mistrust. In the State Treasurer's race of 2014 Tom Cross went to bed on election night with a lead of about 22,000 votes. However, many early vote and vote by mail ballots still were left to be counted and once they finally were, along with properly postmarked late arriving mail ballots, the outcome flipped with Mike Frerichs declared the winner by about 9,000 votes. Providing the public with one expected outcome on election night based on partial information in a very close race only to have the outcome change days later can erode confidence in our electoral system, which may be unnecessary when a better alternative is available.
To point #2 above, we should give our election authorities greater flexibility to meet their enormous election day tasks, including counting and tabulating results. Not that long ago the only way a registered voter in Illinois could vote was in his/her polling place on election day or via absentee ballot if and only if they met the qualifications to vote absentee. However since 2006 we have added early voting, vote by mail and in-precinct same day registration. In the last 12 years the complexity of conducting an election has grown exponentially, and in most cases without a corresponding growth in the resources necessary to manage this complexity. The state's 109 election authorities come in various sizes and each has their own challenges but all would benefit from greater flexibility for meeting the enormous demands placed on them on election night.
There are reasonable arguments against my proposal and they should be carefully considered by the General Assembly before enacting any legislation, some of which were mentioned at the end of the Attorney General's letter.
These are valid concerns that would require thoughtful safeguards to protect the electoral process. I'm hopeful that the General Assembly will consider a bill this session to improve our process, take testimony from interested parties to ensure that no other unintended consequences arise that haven't been previously considered and can craft and pass legislation that would improve our current system.
After talking with some people today I'm told that while election authorities are still not allowed to count results of ballots received prior to 7pm on election night there was some language added to the election code that gives them some additional flexibility, specifically:
(10 ILCS 5/19-8) (from Ch. 46, par. 19-8)
Sec. 19-8. Time and place of counting ballots.
(b) Each vote by mail voter's ballot returned to an election authority, by any means authorized by this Article, and received by that election authority before the closing of the polls on election day shall be endorsed by the receiving election authority with the day and hour of receipt and may be processed by the election authority beginning on the day it is received by the election authority in the central ballot counting location of the election authority, but the results of the processing may not be counted until the day of the election after 7:00 p.m., except as provided in subsections (g) and (g-5).
I'm told that this language allows the election authorities greater flexibility in handling some of the more time consuming tasks prior to election night while still not technically counting totals until after the polls close.