With a razor thin margin in the Republican Governor’s race I’m already looking at a potential election contest in light of our new election equipment and new election law.

Currently in Illinois, by my count, there are 4 different voting systems in use, plus a hybrid system that makes 5.  The M-100 system used in Champaign County is the only completely optical scan system.   The Sequoia system in Cook County and the AccuVote systems in counties like DuPage and McHenry use paper ballots for most voters, but for voters using early voting centers and for those who need accommodations, they use a touch screen DRE system where votes are directly cast into  a computer.  Kane and Peoria counties use touch screens for every vote cast.

Where this gets interesting is with judge’s initials which are a mandatory provision of the election code for paper ballots but which are obviously not possible with DRE machines.  What that means is that if you cast a vote on paper in the state of Illinois, your ballot being counted is based in large part on whether the judge remembers to initial the ballot.  In almost every instance, the judges do their job correctly.  But there is little doubt that somewhere in the state there will be some unitialed ballots.  These are a legendary part of election contests.

If you voted in Kane County you have no worry though.  No initialing means that when you cast your vote you know it counted.

This situation of different voting systems with different error possibilities existed in the past when the notorious lever machines were being used at the same time as hand counted paper ballots and punch card ballots.  The main difference today is Bush v. Gore.

That famous decision had a big impact on the Minnesota Senate race and could also have a big impact in Illinois.   Here is one important sentence from the opinion.

Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.

I haven’t had a chance to review the Minnesota case to see how these issues of different voting systems were applied there, but you can bet that in a full blown election contest this question is going to be raised.

An additional angle on this might be found in a case that came out of Champaign County.  In Reynolds v. McGinty, the Appellate Court ruled that the page numbering provisions of the election code were  mandatory, but that the finding of the electoral board that no fraud was perpetrated meant that substantial compliance had been met.  The decision was a little odd to me at the time, because it suggested that the Electoral Board had done more fact finding than in fact we had.  Here is a critical point in the opinion.

However, given the limited number of pages involved, the fact that the two pages at issue are easily identified by the name of the individuals who circulated them, and the lack of any claim of possible voter confusion, tampering, or fraud by the plaintiff lead to the conclusion that the evidence before the Board was sufficient to sustain its finding that the defendant substantially complied with the requirements of the statute.

This opinion may have raised the bar for  objectors and,  in this case, election contestors.  What the Reynolds case says is that while a provision of the election code is crafted to prevent fraud and is thus mandatory, at the same time, in the absence of any demonstration of fraud, the provision becomes a mere technicality.

The number of uninitialed ballots is likely be under a hundred, and perhaps irrelevant.  But if it does become relevant, we could see a whole new way of looking at the issue.

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