Illinois Confronts Question of When Scanning Ballots Before Election Night Equals “Counting”

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Much of the attention on vote-by-mail and absentee voting has focused on the voter side, with concerns about late delivery and missing or non-matching signatures, but a new attorney general’s opinion in Illinois is raising questions about when and how such ballots are (and may be) counted on the election office side after receipt. Cook County’s mysuburbanlife has more:

The Cook County Clerk’s Office said it will still use its normal procedures to process early and absentee voting for the upcoming election after Illinois Attorney General Lisa Madigan recently released an opinion about vote counting.

Madigan’s statement, issued Oct. 15, said that ballots collected through early voting and absentee balloting cannot be counted before election polls close at 7 p.m. Nov. 4.

Specifically, the opinion said that running the ballots through tabulating equipment is a form of counting.

There was some concern that the opinion would delay counting in Illinois, but Cook County’s response is that even though it is scanning ballots before the close of polls, it is not “counting” them:

Cook County Clerk spokesperson Courtney Greve said the clerk’s office believes its normal process of compiling early ballots complies with the law and Madigan’s opinion.

With 50,000 applications for mail ballots, she said it would be a new record for the county if all of those ballots were submitted.

She said the office first sorts the mail ballots it receives by precinct and township. A couple of days before the election, the ballots are scanned through machines that process and encrypt the data.

The process of scanning these ballot is open to public observation, the same way that vote counting is open on election night, Greve said. The data is not counted until it is entered into the tally system and consolidated with the rest of the voting data after polls have closed.

“Everything we’redoing, running it through, is not calculating and computing,” she said. “It is preparing to do so.”

The AG’s office isn’t yet ready to bless that distinction – and has already issued one clarification that arose from counties using touchscreens for early voting:

However, the Attorney General’s Office has yet to make a decision on whether this process falls within its interpretation of the law.

Bauer said the office has received questions about the process and is “looking into matters right now to provide additional guidance.”

One clarification released by the Attorney General’s office regarding the opinion answered a question some election officials had about whether voters using electronic voting equipment qualified as counting.

According to the clarification, the equipment is legal because the opinion was not meant to address the act of casting a vote.

As the number of pre-election ballots grow across the nation, election offices are increasingly looking for ways to get those ballots counted in a timely manner – which sometimes includes the kind of pre-tabulation processing described here. In Minnesota, I know that some election officials are already trying to figure out how to process a sharp uptick in ballots through the new no-excuse absentee law while still honoring state laws regarding signature verification and “ballot boards.”

If procedures like Cook County’s aimed at expediting the count are not legally approved – either through AG opinions like this one or the courts – then election officials will need to make the impact very clear, given the consequences to them for perceived “slow counts” on Election Night.

I’ll be curious to see if the AG is willing to acknowledge a distinction between scanning and tabulating – not just for its impact in Illinois but for other paper-based early and absentee voting systems nationwide. Stay tuned …

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