Apr 05 2006
Discovery Recounts and Election Contests
I’ve updated the time for filing for an election contest. It is 10 days from the canvass, not 30. The 30 day timeline is for a general election and for public policy questions. Nominations are 10 days. Thanks to Bob Kirchner for pointing this out.
It appears that the County Board District 9 race will be subject to a discovery recount. Here is a little primer on how the process works.
There are two steps in seeking to overturn the results of an election. The first is to file for a discovery recount. (10 ILCS 5/22-9.1) The second is to petition the circuit court for a full recount known as contesting an election. (10 ILCS 5/23)
A discovery recount can be filed by any candidate who receives 95% of the vote cast for the winning candidate. In practicality, discovery recounts rarely are filed unless the margin is much closer than that. It is far less of a recount and far more of a discovery. Much like discovery in civil litigation, discovery in an election involves looking at the materials in the election and using the information gathered as evidence to present to a judge in asking for a full recount. There are no determinations made by anyone in the discovery process that change election results. The petition for discovery recount must be filed within 5 days of the canvass of votes. The canvass was yesterday, April 4th. I think this portion of the statute explains it well:
“A petition under this Section shall be filed with the election authority for purposes of discovery only. The petition shall ask that ballots, voting machines, or ballot cards - as the case may be - shall be examined, that any automatic tabulating equipment shall be tested, and that ballots, recorded votes, or ballot cards - as the case may be - shall be counted in specified precincts, not exceeding 25% of the total number of precincts within the jurisdiction of the election authority. “10 ILCS 5/22-9.1
A person can petition the circuit court for an election contest within 10 days of the canvass of votes. This is the only process that can result in an actual change in the election outcome. The petition to contest the election puts forth the reasons why the contestant believes that the results as certified are not accurate. If the circuit court judge grants the petition for the election contest, a recount of ballots would be conducted. Presumably it would involve all precincts in County Board District 9, but it appears that a judge could call for a recount of only some precincts, which I believe would not be in the public’s best interest. The role my office would play in an election contest is up to the circuit court judge.
One point I should make. I know that the machines are incapable of consistently reading X’s and check marks on ballots. Some of those may be present in this race. No election system has been designed to fully account for voters making mistakes in how they vote. With punch card, voters might fail to put their punch card ballot in the machine completely or put it in backwards. Those resulted in nonvotes. Now, with optical scan, we have voters who fail to fill in the oval on the ballot. Sometimes that results in nonvotes. I believe that with the optical scan system we have fewer voter errors. The new equipment also prevents voters from voting for too many candidates for an office which eliminates more errors. Additionally, with the optical scan system, if the voter does make an error by voting with an X, we should be able to determine their intent. With punch card, determining voter intent when a ballot was incorrectly inserted was nearly impossible (even if some people thought they could.)
I welcome a recount on this race. Our office will work over the coming weeks to assist both candidates as we seek to get a fair and accurate count of the votes.
so all the undervotes will be manually recounted, and if an X is in the box the vote will count?
This is the definition of a vote from 24B of the election code.
(1) The designated area for casting a vote for a particular ballot position on the ballot sheet is fully darkened or shaded in;
(2) The designated area for casting a vote for a particular ballot position on the ballot sheet is partially darkened or shaded in;
(3) The designated area for casting a vote for a particular ballot position on the ballot sheet contains a dot or “.”, a check, or a plus or “+”; or
(4) The designated area for casting a vote for a particular ballot position on the ballot sheet contains some other type of mark that indicates the clearly ascertainable intent of the voter to vote based on the totality of the circumstances, including but not limited to any pattern or frequency of marks on other ballot positions from the same ballot sheet.
(5) The designated area for casting a vote for a particular ballot position on the ballot sheet is not marked, but the ballot sheet contains other markings associated with a particular ballot position, such as circling a candidate’s name, that indicates the clearly ascertainable intent of the voter to vote, based on the totality of the circumstances, including but not limited to, any pattern or frequency of markings on other ballot positions from the same ballot sheet.
I don’t understand. During the discovery recount, you’re going go through looking for check marks. If you find any, that’s enough to get the judge to order a full recount, right? So the results from the machine aren’t really the results, they’re only the results until there’s a recount, and then the check marks count. And if you count check marks, x marks, and other things that the machine didn’t count, there is no doubt the vote totals will change. So it sounds like we still have no idea who won in District 9. Am I right?
Xs and checks will count as votes in a full recount. Unfortunately, no system can make up for voters not following directions. Yes, I would still consider the outcome to be in doubt here.
Thanks for the responses!
So do Xes and checks count in the discovery recount too, or is the discovery recount just another trip through the optical scan machine?
And what’s the criteria for a full recount? Any discrepancy at all, or is there some kind of threshold? Or whatever the judge feels like on the day he hears the challenge?
I think the judges have some discretion here. My guess is that reasonable assertions based on fact will be looked on favorably. But I don’t know of any election contests ever in Champaign County and so I don’t have much to look at to see what threshold the judge would be looking for. I know of one contest in Piatt County for a school district that came into Champaign County. I can’t recall the year exactly.
One would expect that any mistakes made by the optical scanner would be evenly divided among the candidates. I can’t see how one group of voters aligned with one campaign would consistently make a mistake with the new voting system. In examining undervotes, it seems that the most likely scenario is that someone voted for Beckett and not Wysocki (giving him 14 more votes than her), or voted for Bell and not Kirchner (giving her 30 more votes than him). If that’s so, “mistaken” undervotes would go to Wysocki and/or Kirchner, not Beckett or Bell. Could be way off base, but that would be consistent with the results. If that was accurate, any “new” votes discovered would likely add to Wysocki rather than Bell, keeping the election as it is now.
Once the discovery recount is completed, challengers would have to show that a different result is likely if a full recount is undertaken. That burden would be demonstrated if more than one new vote is discovered for Bell (assuming Wysocki gets no new votes). If the optical scan numbers are accurate after the discover recount of the 6 precincts requested, I doubt any judge would order a full recount.
Good luck Mark, it should be fun.