Officials divided over new provisional ballot recommendation

MAURA KELLY LANNAN

Associated Press   22 October 2004

CHICAGO - Local election officials across Illinois are divided over whether to allow provisional ballots cast in the wrong precinct by otherwise eligible voters to count for some federal offices, a recommendation state election officials have made despite state law to the contrary.

Provisional ballots are cast by voters whose names aren't on the rolls when they show up at a polling place and are later reviewed to determine the voter's eligibility.

State law says provisional voters must be in the correct precinct for their votes to count. But the State Board of Elections late last month recommended that provisional ballots cast in the wrong precinct by voters who are otherwise eligible be counted for some offices.

The guide the board sent to election authorities said those ballots should count for "the offices that the two precincts share." Dan White, the board's executive director, said the intent was federal offices only, but acknowledged the wording was confusing. He said Friday the board would send out a clarification.

The discrepancy between the board's recommendation and state law has led to a variety of responses among Illinois' 110 election jurisdictions, which are autonomous and do not have to follow the recommendation.

Some local elections officials said Friday they plan to count the ballots as the board recommends. Some said they hadn't decided, and others said they wouldn't follow the recommendation.

"It's not a good process to say we're going to start making up laws 10 days before the election and say, 'We strongly urge you to do it, but we have no legal authority to, so do what you want,'" said Willard Helander, Lake County clerk.

"They're putting Illinois to be in a position like Florida," she said.

Helander said she is getting guidance from the Lake County State's Attorney's office and has not decided what to do, but she questions whether the board's action could supersede state law.

DuPage County Clerk Robert Saar said he was surprised at the board's recommendation and didn't think it had the authority.

"Unless we get some ruling from a court or we get additional information that we don't know about right now that would suggest we actually do have that authority, we're not going to do it," Saar said.

White said the board had tried to reconcile state law with what board members thought was the intent of federal law - to give voters the benefit of the doubt.

"We think it's a fair interpretation that would give voters the opportunity to vote for some offices," he said.

Provisional ballots are being required nationally for the first time this year as an effort to avoid a repeat of the 2000 election. During that election, about 1.5 million registered voters were mistakenly turned away at the polls because of clerical errors or other problems.

Lawsuits have been filed in at least five states on whether provisional ballots should be considered valid if voters cast them in the wrong precinct, and federal judges have issued different opinions on the matter. No lawsuits have been filed in Illinois.

Jackson County Clerk Larry Reinhardt plans to follow the Illinois board's recommendation, but he expects more lawsuits.

"I stand firmly behind the court ruling, whatever that will be," he said.

Chicago and Cook County also plan to abide by the recommendation.

"This is kind of a stopgap measure," Cook County Clerk David Orr said. "Those people shouldn't be disenfranchised."

During the March primary in Chicago, 1,294 of the 5,914 provisional ballots cast during weren't counted because they were cast in the wrong precinct. The city has retrained election judges on how to handle provisional ballots and hopes to avoid problems by having judges guide voters to their proper polling place.

"Any time we can count somebody's ballot, we certainly are willing to do it," said Tom Leach, spokesman for the Chicago Board of Election Commissioners.

McHenry County Clerk Katherine Schultz said she will not count provisional votes cast in the wrong precinct.

"We won't do that. They can't change the law," Schultz said. "I don't want to go into someone's ballot and start looking for the offices they voted for and determine which ones they should have and which ones they shouldn't have."