STATE BOARD OF ELECTIONS STATE OF ILLINOIS

2329 S. MacArthur Blvd. Springfield, Illinois 62704 217/782-4141 TTY: 217/782-1518 Fax: 217/782-5959 James R. Thompson Center 100 West Randolph, Suite 14-100 Chicago, Illinois 60601 312/814-6440 TTY: 312/814-6431 Fax: 312/814-6485 EXECUTIVE DIRECTOR Rupert T. Borgsmiller BOARD MEMBERS William M. McGuffage, Chairman Jesse R. Smart, Vice Chairman Harold D. Byers Betty J. Coffrin Ernest L. Gowen Judith C. Rice Bryan A. Schneider Charles W. Scholz

MEMORANDUM To: From: Re: Date: Rupert Borgsmiller, Executive Director Kenneth R. Menzel, Deputy General Counsel Cook County and Chicago Board of Election Commissioners, Issues Raised by November 19, 2012 Defend the Vote Correspondence January 17, 2013

Defend the Vote submitted a letter dated November 19, 2012 making a number of new allegations, this time relating to the absentee ballot procedures of both the Cook County Clerks office (Cook) and the Chicago Board of Election Commissioners (Chicago). Additional items relating to polling place procedure and nursing home voting were raised as to Cook. In all, this letter raised 8 allegations as to Cook and 3 as to Chicago. The Defend the Vote letter was copied to the Cook County States Attorneys office (SAO), the Illinois Attorney Generals office (AG) and the US Department of Justices Voting Rights section and the Chicago office (DOJ). The DOJ and AG offices have advised us that they do not have ongoing investigations of the matters underway. As of the date of this memo, the SAO office has not yet responded to our status inquiries. Assistant Director Tenuto and I reviewed the matters raised, including contact with Cook and Chicago. As discussed in item by item detail below, our review of the matters found: (a) a couple relatively small points which the election authorities indicate have already been or would be simple to address for future elections; and (b) some Cook election judge staffing and nursing home assignment items where it might be appropriate for staff to stay in contact with Cook to see how they play out over this current 2 year term of the election judges (and the selection for the next term). However, the staff did not find support for the broad allegations that the jurisdictions are engaged in illegal conduct or deviations from the Election Code. Cook Item #1: Training Manual The Cook Election Judge Manual directs the election judges to set up the polling place before Election Day, including (at Page 14) verifying the ballot box is empty and sealing it. In the directions for the 5:00 AM to 6:00 AM period on Election Day the Manual (at Page 31) instructs the election judges to if asked, allow pollwatchers an opportunity to check
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equipment. Cook advises us that judges school instruction amplifies on this to make clear that such checking would include verifying an empty ballot box (see 10 ILCS 5/17-3), and appeared to be receptive to our suggestion of a small Manual revision to be clearer on this point. Cook Item #2: Separate Wrapping and Sealing of Ballots Defend the Vote asserts that Cook does not have its election judges return ballots from the precincts in the manner set forth in Section 17-20 of the Election Code. Section 17-20 directs the judges of election to hand total the results for each office, and telephone the results to the election authority. It then goes on to provide specifics as to wrapping and binding the ballots in paper covered bundles.1 However, in jurisdictions using optical scan ballots (such as Cook and the vast majority of Illinois election authorities), the requirements of Section 17-20 are superseded by Section 24B-10, which does not require such bundling for optical scan ballots.2 Cook Item #3: Counting Absentee Ballots Prior to 7:00 PM on Election Day Section 19-8(f) of the Election Code provides for counting of absentee ballots after 7:00 PM on Election Day.3 However, some amount of processing, either by election judges or the election authority, with respect to absentee ballots prior to counting is required under Section 19-8(g) of the Election Code.4 A significant number of Illinois election authorities take the position that processing covers all activities up to and including placing absentee ballots into the tabulators, and that counting consists of compiling the combined totals and printing the reports of the

In pertinent part, Section 17-20 provides: After making such proclamation and before separating, the judges of all counties shall fold or roll all of the ballots which have been counted by them, except those ballots which have been in the ballot box but have not been counted and marked "defective" or "objected to", securely bind them, lengthwise and in width, with a soft cord having a minimum tensile strength of 60 pounds, and wrap the same with heavy wrapping paper on which the judges of election shall write their signature and seal the package with filament over the signatures and around the package lengthwise and crosswise, at least twice each way, so that the ballots cannot be removed from the package without breaking the seal and the filament tape and disturbing the signatures, and enclose the ballots so wrapped, together with the envelope containing the ballots marked "defective" or "objected to", in a secure canvass covering, which the judges of election shall sign and seal with filament tape as above specified. 2 In pertinent part, Section 24B-10 provides: The judges of election immediately shall securely lock the ballot box or other suitable box furnished for return of the ballots by the election official in charge of the election; provided that if the box is not of a type which may be securely locked, the box shall be sealed with filament tape provided for the purpose which shall be wrapped around the box lengthwise and crosswise, at least twice each way. A separate adhesive seal label signed by each of the judges of election of the precinct shall be affixed to the box to cover any slot therein and to identify the box of the precinct 3 In pertinent part, Section 19-8(f) provides that absentee ballot counting: on election day after the closing of the polls shall commence no later than 8:00 p.m. and shall be conducted by a panel or panels of election judges appointed in the manner provided by law... 4 In pertinent part, Section 19-8(g) provides: within 2 days after an absentee ballot is received, the election judge or official shall compare the voter's signature on the certification envelope of that absentee ballot with the signature of the voter on file in the office of the election authority. If the election judge or official determines that the 2 signatures match, and that the absentee voter is otherwise qualified to cast an absentee ballot, the election authority shall cast and count the ballot on election day or the day the ballot is determined to be valid, whichever is later
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aggregated figures. Some election authorities have obtained opinions from their respective States Attorneys offices to support that position. Cook has indicated that no such compiled totals are generated prior to 7:00 PM on Election Day. Cook noted that when voting machines were shut down at the close of early voting, an operators log report was generated, the memory card was removed, and both items were placed in secure storage. The vote data from the machine appeared in both of these items, but the data was not compiled or aggregated so as to generate any totals, and the information in them was not made available to anyone. This practice is consistent with the manufacturers operating instructions for the equipment, and does not appear to cross the line from processing into counting as those terms are interpreted by a large contingent of election authorities and their respective legal counsel. Cook Item #4: Processing Absentee Ballots Without Election Judges As noted in Cook Item #3 above, Section 19-8(g) of the Election Code contemplates processing of absentee ballots by election judges or officials. Cook has opted to use the latter as to absentee ballots returned prior to Election Day. Cook Item #5: Remaking Spoiled Ballots Without Election Judges Before Election Day The election authority staff processing of absentee ballots includes the remaking of spoiled ballots (i.e. those damaged in such a way as to be unreadable) onto undamaged ballot stock. By way of example, a returned absentee ballot is sometimes torn or badly creased in transit from the voter to the election authority. Remaking of such ballots involves the marking of an undamaged ballot to reflect the same selections the voter made on the original ballot. When this is done, the original damaged ballot and remade ballots are marked so as to allow them to be matched later (such as by designating them in series as Spoiled Ballot #1 and Remade Ballot #1 through the final such pairing). This practice appears consistent with the Election Code. Cook Item #6: Vendor Staff Processing Absentee Ballots It is not uncommon for election authorities to employ temporary or contract workers to handle some tasks during high workload time periods around an election. This does not appear to be any violation of the Election Code. Cook has advised us that temporary or contract workers operate under the direct supervision of permanent Cook staff, and their work is limited to noncomplex ministerial tasks that do not involve discretion. Cook Item #7: Chain of Custody for Absentee Ballots and Memory Cards Defend the Vote asserts that Cook does not maintain a reliable chain of custody for absentee ballots and memory cards once they are counted. Article 19 of the Election Code, which governs absentee balloting, does not set forth specifics as to precisely how voted absentee ballots are to be stored after they are counted, other than the general requirement that ballots be secured. It is our understanding that Cook keeps absentee ballots and memory cards in a secure area, inaccessible to the public. Precisely how Cook secures the ballots in that area appears to be a matter of discretion to be exercised by Cook. Cook Item #8: Nursing Home Voting Section 19-12.2 of the Election Code provides for voting to be conducted on the premises of nursing homes (and certain other similar facilities) on the Friday, Saturday, Sunday or Monday prior to Election Day. This voting is to be conducted by 2 election judges, of different political parties.
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Nursing home voting is somewhat labor intensive for the election judges. In a large facility, it is difficult to accomplish with only 2 election judges. For this reason, Cook and many other jurisdictions assign more than 2 election judges to some or all of the facilities. Cook does not as a rule evenly balance the election judge teams politically (focusing more on experience and competence, and willingness to travel to the particular facility). Cook does try to balance the crews, and get at least one judge of each political party for each facility, but has not always succeeded in doing so. Given that Cook is one of the many Illinois counties that strongly leans to one political party, it is somewhat surprising that the imbalance tended to tilt in favor of the countys minority party. It should be noted that Defend the Votes director has also served as the Cook County Republican Partys election judge recruitment coordinator since mid 2012. She attempted to fill the Cook Republican election judge positions with more stalwart party loyalists. Cook extended the deadline for submitting new names on more than one occasion, and finally cut off changes about 3 weeks prior to the 2012 General Election (long after the partys contingent of election judges should have been finalized for the 2012 to 2013 term).5 While the nursing home voting staffing tilted in favor of the Republican Party, some issue was raised as to how genuine many of the nominally Republican election judges were. In counties with a strong political leaning, the election authorities struggle (and often fail) to fill all of the election judge positions for the minority party. The minority party election judge positions tend to experience greater turnover, and a significant portion are filled with people who have more focus on fulfilling a generalized civic duty and less focused on representing their nominal party. In addition, the minority party often ends up having a lot of very experienced judges and a lot of very new judges, with fewer in the middle in terms of experience (as compared to the majority party). About half of Illinois counties strongly lean to one party or the other. By way of example, about 4 dozen counties have General Primary turnouts where Republicans outnumber Democrats by a margin of 3:1 or more. A few counties have General Primary turnouts where Democrats outnumber Republicans by a margin of 3:1 or more. Cook County is one of these strong Democratic leaning counties, with an average margin of a little more than 4:1 over the last few primaries. Defend the Vote and Cook County Republican Party raised issue with nursing home following the 2012 General Primary, and it appears that the 2012 General Election had better balance and far fewer single party election judge crews (although it still had a few). As long as both parties are represented in each nursing home, we do not view it as problematic to have some imbalance, although reasonable effort should be made to minimize it. We believe that it would be appropriate for staff to stay in contact with Cook to see how nursing home voting assignments work out for the 2013 elections and the election judge staffing process unfolds with turnover in the current term and the selection and approval of the new term covering 2014 to 2015. Chicago Item #1: Authentication of Absentee Ballots During a portion of the absentee voting period prior to the 2012 General Election, Chicagos procedures for mailed absentee ballots included comparing the signature on the absentee
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In counties over 1,000,000 population, the political parties are supposed to provide lists of people to serve as election judges so as to permit their approval by the County Board in January of each even numbered year, followed by circuit court confirmation, to serve 2 year terms.
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application with the signature on the voter registration record (for purposes of sending the absentee ballot) and comparing the signature on the ballot certification envelope of the returned ballot with the absentee ballot application. Chicago has modified the procedures so as to compare the signatures on both the absentee application and the ballot certification envelope against the signature on the voter registration record. We concur that this is the appropriate procedure. Chicago Item #2: Sealing of Absentee Ballots Defend the Vote asserts that absentee ballots are not sufficiently sealed before counting (little detail is provided, other than that Duck (sic) tape is used and re-used). Article 19 of the Election Code, which governs absentee balloting, does not set forth specifics as to precisely how voted absentee ballots are to be stored after they are returned and are in the possession of the election authority. It is our understanding that Chicago keeps returned absentee ballots in a secure area, inaccessible to the public. It would appear that precisely how Chicago secures the ballots in that area is a matter of discretion to be exercised by Chicago. Chicago Item #3: Counting Absentee Ballots Prior to 7:00 PM on Election Day This is, in essence, the same as Cook Item #3 issue above and Chicago has indicated that it does not tabulate any ballots prior to 7:00 PM on Election Day. Moving forward, we would suggest that staff remain in contact with Cook staff as to how relations are going with the Cook County Republican Party as to election judge staffing and nursing home voting assignments. We do not believe that any action is required of the Board on these matters at this time.

_____________________________________________ Kenneth R. Menzel Deputy General Counsel

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