We started absentee voting today.  As I noted in the post about Military and Overseas ballots, it’s a great testament to the work of our staff that absentee voting has started.  It’s not easy dealing with the compressed schedule of candidate certifications and voting deadlines.  But our staff handled it as well as anyone in the state.

If you want to vote absentee through the mail we are now offering a new method of doing that.  In the past, we would have required two mailings from our office.  One would be an application which, upon return of the application, would be followed by the mailing of the ballot itself.  We’ve reduced that to a single mailing of both application and ballot for those voters who have confirmed their identity on line or in a phone call to us by providing us with their birthdate and either their Driver’s license number or the last four digits of their social security number.

The signatures on all absentee ballots are authenticated by election judges upon receipt in our office as a final step to verify their identity.

I’ve written about the problems of ballot certification as it relates to getting ballots to military and overseas voters.  Well today we mailed the last of the initial mailing of 484 ballots.

Our staff did a great job of turning around the Thursday afternoon certification from the State Board of Elections.    Not many counties, if any, have their ballots out yet.

The complexity of Illinois elections has befuddled lifelong residents.  So it should be no surprise that a for-profit group from out of state would have a tough time figuring it all out.

In the specimen ballot they make available on their website for Champaign County voters they actually list the office of County Board Chairman.  This office is elected countywide in places such as DuPage and Cook counties, but not in Champaign County.  In Champaign County it’s elected by the County Board members.

Use eVoter at your own peril.

Update:  I’ve posted more about eVoter has responded to these issues here.

A company has begun trying to make money off of our voter registration data.  When I first heard about their effort, I had concerns.  I wrote the company with this e-mail.

While I told the company I wouldn’t be tracking them, I ran across them when I received a google alert about their site that purports to allow voters to order an absentee ballot.  Unfortunately, their site only adds an unnecessary and burdensome step for Champaign County voters.

A voter using eVoter will have at least one and perhaps two extra mailings.  A simple phone call or email to our office would provide voters with a higher level of service.  I’ll write more about some changes we’re making to absentee voting in Champaign County in the next week.

We’re moving forward in ways that enhance security, save money, and improve service.  eVoter is moving in the exact opposite direction.

Judge Jones today agreed to a lot of our arguments, but in the end, disagreed with the argument that our office would suffer irreparable harm should we go forward with the election with the undervote provision in place.

He dismissed the ridiculous claim that the SBE made that we don’t have a fundamental right to a secret ballot.  He dismissed their claim that I couldn’t sue over questions about the election code.  He also said that our right to a secret ballot was implicated by the law as applied to the equipment we currently have.

What he left open is the question as to how that would be resolved.  The SBE could certify other equipment that might satisfy this requirement without implicating the secret ballot.  Our own equipment could perhaps be modified.   Without a longer hearing and fact finding it was impossible for him to determine that the injunction was the only remedy available.

We’ll put this in place for this election and bring our facts to the case post election.  Our case will be stronger as we’ll have the problems from this election to bring to the case.

In an amazing stance, the Illinois State Board of Elections, through their legal representative, the Illinois Attorney General, claim that we have no right to a secret ballot.

“While plaintiff attempts to suggest to the court that there is a fundamental right to a secret ballot, no such right exists.”

I’ve written a couple times about the MOVE Act, a recently passed federal law that mandates among other items that election officials mail ballots to military and overseas voters at least 45 days in advance of the election.  For Illinois voters, that means that ballots are to be mailed by Saturday December 19th.  We just received notification from the State Board of Elections that they would be meeting at 9:30am on Thursday, December 17th to decide on more objections.   There are still five objections left to be decided that affect Champaign County voters.  Presumably, this will be the last round of State action, but further court action is certainly possible as well.

We’ve basically have a day to create, proof, and get the ballots out in time to meet the new federal standard.   While the new law doesn’t apply to this particular election, it does highlight the practical difficulties that election officials will face in upcoming elections.

There is so much swirling in the legislative air regarding election administration reform that it’s hard to keep up.  I’m doing my best.

Last month, the American Constitution Society published a paper by Estelle Rogers, The National Voter Registration Act: Fifteen Years On.  If election adminstrators were to adopt some of its suggested reforms, it would be a major setback for sound election administration.

On the positive side, it makes at least one suggestion regarding agency registrations that needs action.   I have not seen definitive data that makes a strong a case for the failure of agencies to comply with their registration requirements.  I hope to be able to do more research on that in the future.  But the degree of the problem is really irrelevant to one of the more crucial suggestions in the paper which is to make better use of technology to facilitate the registration work of these agencies.

Currently, we get hand written forms from every agency except the driver’s license facilities.  If the forms at other agencies could be generated by the same system that is being used to provide them service, we’d ease the process for voters, agency workers, and election staff.  One hopes that this could be done with little difficulty.  Unfortunately, with the vendor driven software solutions we see in much of government, there is no guarantee as to how easily that could be done (see my open source articles).  At the very least, it needs to be on the table now.

Where the paper goes terribly awry is with its analysis of list maintenance procedures.  While purporting to be an analysis of the NVRA 15 years on, the paper basically ignores HAVA and the advances that have been made in the last 5 years on the HAVA requirement for a statewide voter registration database.

Rogers’ analysis of how duplicate voters are removed from the voter files begins and ends with United States v. Pulaski County, Arkansas.  She cites the 2004 Consent Order in the case as evidence of how duplicate registrations must be handled.  However, she misses two critical points.  First, the Pulaski Consent Order was entered into prior to the establishment of the Arkansas Statewide Voter file.  Second, the Pulaski Consent Order is no longer in effect.

As I said, her claim that jurisdictions are not to remove voters after being identified as a duplicate registration on the Statewide Voter Registration System is belied by Consent Orders subsequent to the Pulaski order as well as the language of HAVA.

For example, in the California Memorandum of Agreement we see this language:

§20108.60. Duplicate Registration Records. (a) Beginning January 1, 2006, the Secretary of State shall conduct weekly checks within the Calvoter statewide registration list to identify potential duplicate registrations for the same voter within that list, based on established rotating criteria. Upon identification of potential duplicate registration records, the Secretary of State shall automatically send an electronic notice to the county with the record that has the oldest date of registration.

(b) Within five (5) business days of receipt of a notice of potential duplicate registration the elections official shall take all necessary steps to determine whether or not the registration record is a duplicate of an existing newer registration, and if a duplicate registration is confirmed, shall cancel the older duplicate registration and submit a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40.

Similar language appears in the Indiana Consent Decree:

The State shall require each county voter registration office to make a determination, consistent with all notice requirements mandated by law, on these potentially invalid registrations by August 2, 2006, including the removal from the list of eligible voters of any voter registration that has been positively identified as being from a deceased voter or as a duplicate registration.

HAVA itself, passed 9 years after NVRA, has strong language regarding the removal of duplicate registrations across the state.

(B) Conduct.–The list maintenance performed under subparagraph (A) shall be conducted in a manner that ensures
(i) the name of each registered voter appears in the computerized list;
(ii) only voters who are not registered or who are not eligible to vote are removed from the computerized list; and
(iii) duplicate names are eliminated from the computerized list.  (Emphasis added)

One of the primary purposes of HAVA was the establishment of the statewide voter file for the purpose of eliminating duplicate registrations.  The suggestion in the ACS paper that the statewide voter file can’t be used for those purposes flies in the face of DOJ opinions as expressed in the memoranda above and the rather common place idea that the strong statements in HAVA regarding elimination of duplicates modify the requirements of NVRA.  It would be absurd to think that Congress created the statewide voter file but gave it no useful effect.  I imagine virtually every state in the country follows these very common sense practices.

The paper also claims that election officials are violating the law as to how they handle registrations that are submitted incomplete.  Good points are brought up here, but the solution suggested is one sided and doesn’t maintain the best interest of voters.

The complaint is that some election authorities return forms back to registrars when they are incomplete and that in the last minute rush to file registrations, some voters are not notified of problems in time to rectify them.

Champaign County is a good example of a jurisdiction facing some of the problems noted here.  We try to turn around “rejections” quickly so as to give voters a chance to correct their error.  In the past we have returned some voter registration applications to groups when information is incomplete in an effort to expedite a correction.  We stopped this practice for a number of reasons which can be summed up with our concern with what was best for the voter.  Our current practice is aligned with what Rogers believes is best and legal practice.

Unfortunately, one item missing from the suggestions is to create a requirement that voter registration forms be turned in by advocacy groups in a timely fashion.  The paper is insistent of the need for enforcing the timelines for agencies, but is silent about advocacy groups.  We routinely have received forms from advocacy groups more than four weeks after the registration form is dated.  One election we received dozens of forms after the election.  Nothing in NVRA even mandates the submission of forms, and certainly no deadlines are present.  If Rogers  is serious about wanting timely disposition of registrations, it needs to first look for timely submission of the forms.

Further, the timeliness of all voter communications is imperiled each and every time a new mandate is placed upon election authorities.  When the days and hours for early voting, grace period voting, and absentee voting are extended, it necessarily creates delays in other parts of the election process.  As I mentioned in my lines at the polling place post, simplifying processes will go a long way to expediting the delivery of services.

Most disappointing in the paper is the unsubstantiated assertion that election authorities are removing voters for failure to vote.  She makes a single reference to this practice.

For example, in 2008 in Miami-Dade County, a number of African American voters who had not voted in many years and had not moved in all that time were told they were not on the rolls at all.

I spoke with Dade County.  They don’t remove people for failure to vote and a simple phone call by the author of the paper would have revealed the same.  I highly doubt that a single election authority in America does this, yet for some reason the author feels compelled to suggest it.  Perhaps this is another one of those “necessarily atmospheric opinions of reformers” that Michelle Gerken writes about that I find disturbing.

As a policy blue print for improving the NVRA, the ACS report is lacking.   More disappointing, the actual arguments that it brings to the discussion are sometimes misleading, inaccurate, or incomplete.  Once again, hearkening back to Gerken.

“When there’s no evidence to analyze, there’s not much left to do but shout.  We lack the information we need to be confident that we’ve correctly identified the problem and chosen the right solution.  We argue incessantly about which path election reform should take even though no one can even map where we are right now.”

For all the work that was apparently put into this report, it would have been nice if the Rogers could have brought more substance to this debate and a little less shouting.

If you read our memorandum in support of our effort to strike down the undervote statute, you’ll see that we argue that the right to vote is a fundamental right.  As such, any infringements upon it have to be reviewed under strict scrutiny.  One aspect of that is to demonstrate that there is a compelling state interest in the limitation of the right.

When it comes to the undervote statute, the only possible legitimate interest of the state is that the law might prevent unintentional undervotes.  I believe our previous research already destroys that argument.   But there is yet another argument that I haven’t yet written about.

If in fact the absence of an error message on an undervote resulted in unintentional undervotes, then it stands to reason that the presence of an error message would drive down undervotes.  Unfortunately for the propenents of this law, that is definitely not the case.

In Champaign County in November 2006, the overall percentage of undervotes for the statewide constitutional officers was 2.5% using either the M100 alone or in conjunction with the Automark Voter Assistance Terminal.

However, if you take a look at the Automark alone, those ballots had an undervote rate on the statewide constitutional officers of 2.9%  Clearly, the presence of the undervote notification on the Automark is not creating any more votes for any of these offices.

Another example is the comparison between Champaign and Kane Counties.  Kane County uses all DRE machines, providing undervote notification to each voter.  They had a 1% undervote rate for the Presidential election in November 2008.  Champaign County on the other hand had a rate of just one half of that (.5%).

There’s no evidence that anything more than a handful of votes will be positively changed with this law.   It’s no wonder that no other state in the country has this requirement.

The hearing to consider our motion for an injunction on the undervote statute is December 17 at 10:00 a.m.  Judge Michael Jones will be hearing it.