TITLE 26: ELECTIONS
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AUTHORITY: Implementing Article 18A of the Election Code [10 ILCS 5/Art. 18A] and authorized by Section 18A-15 of the Election Code [10 ILCS 5/18A-15].
SOURCE: Adopted by emergency rulemaking at 38 Ill. Reg. 4506, effective January 23, 2014, for a maximum of 150 days; adopted at 38 Ill. Reg. 12603, effective May 30, 2014.
Section 218.10 General Provisions
This Part implements Article 18A of the Election Code, setting forth procedures to be followed when counting provisional ballots (see Section 18A-5 of the Code) that were voted and cast in a precinct other than the precinct in which the provisional voter is registered.
a) Definitions
"Citywide or Villagewide Office" means an office elected by the electors of an entire municipality.
"Correct Precinct" means the precinct containing the addresses at which the provisional voter resides and at which he/she is registered to vote.
"Countywide Office" means the offices of Clerk, Sheriff, State's Attorney, Circuit Court Clerk, Recorder, Auditor, County Board President, County Board Member or County Commissioner in those counties that elect those officers countywide, Coroner, Regional Superintendent of Schools, Sanitary District Commissioners/Trustees, Assessor, Board of Review Members in those counties that elect those officers countywide, and Treasurer. Some of the above offices are not elected offices in certain counties as they are appointed or simply do not exist in the county.
"Election Authority" means either the County Clerk, County Board of Election Commissioners or Municipal Board of Election Commissioners, as the case may be.
"Election Code" or "Code" means 10 ILCS 5.
"Election Jurisdiction" means an entire county, in the case of a county in which no city board of election commissioners is located or that is under the jurisdiction of a county board of election commissioners; the territorial jurisdiction of a city board of election commissioners; and the territory in a county outside of the jurisdiction of a city board of election commissioners. In each instance, election jurisdiction shall be determined according to which election authority maintains the permanent registration records of qualified electors.
"Incorrect Precinct" means the precinct in which the voter cast a provisional ballot, but is not the precinct containing the address at which he/she is registered to vote. In order for a provisional ballot to be eligible for counting when cast in an incorrect precinct, that precinct must be located within either the county or municipality in which the voter is registered.
"Leading Established Political Party" means one of the two political parties whose candidates for Governor at the most recent 3 gubernatorial elections received either the highest or second highest average number of votes. The first leading political party is the party whose candidate for Governor received the highest average number of votes in the 3 most recent gubernatorial elections and the second leading political party is the party whose candidate for Governor received the second highest average number of votes in the 3 most recent gubernatorial elections.
"Legislative District" means the district in which an Illinois State Senator is elected to serve the residents.
"Persons Entitled to Vote Provisionally" or "Provisional Voter" means a person claiming to be a registered voter who is entitled by Section 18A-5 of the Code to vote a provisional ballot under the following circumstances:
The person's name does not appear on the official list of eligible voters for the precinct in which the person seeks to vote;
The person's voting status has been successfully challenged by an election judge, a pollwatcher or any legal voter;
A federal or State court order extends the time for closing the polls beyond the time period established by State law and the person votes during the extended time period;
The voter registered to vote by mail and is required by law to present identification when voting either in person or by absentee ballot, but fails to do so;
The voter's name appears on the list of voters who voted during the early voting period, but the voter claims not to have voted during the early voting period; or
The voter received an absentee ballot but did not return the absentee ballot to the election authority, and failed to surrender it to the election judges. (Section 18A-5 of the Code)
"Statewide Office" means the Constitutional offices of Governor and Lt. Governor running jointly, Secretary of State, Attorney General, Comptroller and Treasurer.
"Township Office" means an office elected by the electors of an entire township.
b) Procedures for Voting Provisionally in the Polling Place
1) If any of the 6 reasons (cited in the definition of provisional voter in subsection (a)) for casting a provisional ballot exists, an election judge must accept any information provided by a person who casts a provisional ballot that the person believes supports his or her claim that he or she is a duly registered voter and qualified to vote in the election. However, if the person's residence address is outside the precinct boundaries, the election judge shall inform the person of that fact, give the person the appropriate telephone number of the election authority in order to locate the polling place assigned to serve that address (and/or consult any alternative tools provided by the election authority for determining a voter's correct precinct polling place) and instruct the person to go to the proper polling place to vote. (Section 18A-5(b)(1) of the Code)
2) Once it has been determined by the election judges that the person is entitled to receive a provisional ballot, and the voter has completed the provisional voter affidavit (see Section 18A-5(b)(2) of the Code), the voter shall be given a provisional ballot and shall proceed to vote that ballot. Upon receipt of the ballot by the election judges, the ballot shall be transmitted to the election authority in accordance with Section 18A-10(a) of the Election Code.
3) In the event that a provisional ballot is mistakenly cast in a precinct other than the precinct that contains the voter's address of registration, the following Section shall apply. (This is a situation in which the voter believed he/she registered in the precinct in which he/she voted provisionally, and the election judges should have, but did not direct the voter to vote in the correct precinct.)
Section 218.20 Counting Procedures for Provisional Ballots Cast in an Incorrect Precinct (Within the Same Election Authority's Jurisdiction)
a) The election authority shall:
1) transmit to the State Board of Elections the provisional voter's identifying information and voting jurisdiction (see Section 18A-15(d) of the Code) within 2 calendar days. Following that, and subject to subsection (2) below, if the election authority having jurisdiction over the provisional voter determines that the voter has cast a provisional ballot in an incorrect precinct, the ballot shall still be counted using the procedures established in subsection (b) or Section 218.30 if applicable. Jurisdictions that use election machines authorized pursuant to Article 24C of the Election Code for casting provisional ballots may vary procedures of this Section and Section 218.30 as appropriate for the counting of provisional ballots cast on those machines.
2) determine whether the voter was entitled to cast a provisional ballot. The voter is entitled to cast a provisional ballot if:
A) the affidavit executed by the voter contains, at a minimum, the provisional voter's first and last name, house number and street name, and signature or mark (Section 18A-15(b)(2) of the Code);
B) the provisional voter is a registered voter based on information available to the county clerk or board of election commissioners provided by or obtained from the provisional voter, an election judge, the Statewide voter registration database maintained by the State Board of Elections, the records of the county clerk or board of election commissioners' database, or the records of the Secretary of State (Section 18A-15(b)(3) of the Code); and
C) the provisional voter did not vote by absentee ballot and did not vote during the period for early voting (Section 18A-15(b)(4) of the Code).
b) Once it has been determined by the election authority that the voter was entitled to vote a provisional ballot, even though it had been cast in an incorrect precinct, the election authority shall select a team or teams of 2 duly commissioned election judges, one from each of the two leading established political parties in Illinois (currently the Democratic Party and Republican Party) to count the votes that are eligible to be cast on the provisional ballot. In those jurisdictions that use election officials as defined in Section 18A-15(h) of the Code, these duties may be performed by those election officials.
1) Votes cast for Statewide offices, the Office of President of the United States (including votes cast in the Presidential Preference Primary), and United States Senate shall be counted on all provisional ballots cast in the incorrect precinct.
2) Votes cast for Representative in Congress, delegate/alternate delegate to a national nominating convention, State Senator, State Representative, or countywide, citywide or township office shall be counted if it is determined by the election judges or officials that the voter would have been entitled to vote for one or more of these offices had the voter voted in the precinct in which he or she is registered to vote (i.e., the correct precinct) and had the voter voted a ballot of the correct ballot style containing all the offices and candidates for which the voter was entitled to cast a ballot (the correct ballot style). This determination shall be made by comparing a sample ballot of the correct ballot style with the actual provisional ballot cast by the voter. If the same office (including the same district number for a Congressional, Legislative or Representative district) appears on both the correct ballot style sample ballot and the provisional ballot cast by the voter, votes for that office shall be counted. All votes cast for any remaining offices (offices for which the voter would not have been entitled to vote had he or she voted in the correct precinct) shall not be counted.
3) No votes shall be counted for an office when the voter voted for more candidates than he/she was allowed.
4) Once it has been determined which offices are to be counted and the provisional ballot contains no other votes, the provisional ballot shall be counted pursuant to the procedures set forth in this subsection (b).
5) If a provisional ballot does not contain any valid votes, the provisional ballot shall be marked invalid and shall not be counted.
6) Any provisional voting verification system established by an election authority shall inform the provisional voter that his or her provisional ballot was partially counted because it was cast in an incorrect precinct.
7) If a provisional ballot only contains votes cast for eligible offices, and does not contain any votes cast for ineligible offices, the ballot may be tabulated without having to be remade.
8) If a provisional ballot contains both valid votes that must be counted and invalid votes that cannot be counted:
A) the election judges, consisting in each case of at least one of each of the 2 leading political parties, shall, if the provisional ballot was cast on a paper ballot sheet, proceed to remake the voted ballot onto a blank ballot that includes all of the offices for which valid votes were cast, transferring only valid votes. The original provisional ballot shall be marked "Original Provisional Ballot" with a serial number commencing at "1" and continuing consecutively for ballots of that kind in the precinct. The duplicate provisional ballot shall be marked "Duplicate Provisional Ballot" and be given the same serial number as the original ballot from which it was duplicated. The duplicate provisional ballot shall then be treated in the same manner as other provisional ballots.
B) if the provisional ballot was cast on a direct recording electronic voting device, the election judges shall mark the original provisional ballot as a partially counted defective electronic provisional ballot because it was cast in the incorrect precinct (or bear some similar notation) and proceed to either:
i) remake the voted ballot by transferring all valid votes to a duplicate paper ballot sheet of the correct ballot style, marking the duplicate ballot "Duplicate Electronic Provisional Ballot" and then counting the duplicate provisional ballot in the same manner as the other provisional ballots marked on paper ballot sheets; or
ii) transfer, or cause to be transferred, all valid votes electronically to the correct precinct, which shall be counted and added to the vote totals for the correct precinct, excluding any votes that cannot be counted. If this method is used, a permanent paper record must be generated for both the defective provisional ballot and the duplicate electronic provisional ballot.
c) For provisional ballots cast at a partisan primary election, the judges shall use a duplicate ballot of the correct ballot style for the same political party as the ballot chosen by the voter.
d) At least one qualified pollwatcher for each candidate, political party, and civic organization, as authorized by Section 17-23 of the Code, shall be permitted to observe the ballot remaking process.