Emanuel Poised to Win Residency Challenge

I noted a couple months ago that I believed that Rahm Emanuel would have “no problem” winning the case challenging his residency in Chicago.  It’s looking like I was correct.

It’s unfortunate for Mr. Emanuel, and the electoral process in general, that this case had to go this far.  The hearing officer’s decision reflects the broad consensus of election law experts in Illinois.  A modicum of work by the media could have presented a more accurate presentation of the law in this issue.  Instead, they used most of their ink citing Burt Odelson, who was clearly biased.

The opinion as issued makes an excellent case that the key element here was whether Emanuel had an intent to return.  He clearly did as anyone with any sense could see.  While helpful to Emanuel, the fact that he was a federal employee was not necessary for him to make the case that he was a resident for that time period.

This case is relevant in Champaign County as we often have faculty who leave the county for extended periods of time.  As I stated before, I think it’s clear that they do not give up their residency.

Unaddressed by Morris was the legal question of whether the definition of “residence” in the Election Code, for purposes of voting, is different than the definition of residence for the purposes of running for office.  I believe this is settled, which is probably why Morris didn’t address it.   I’d cite the Baumgartner decision in particular.

Both parties have submitted differing usages of the term “residence.” However, because  eligibility to run for office is closely linked to the ability to vote within a particular jurisdiction, we will use the definition of “residence” as used within the Election Code for voter registration.

Expect an appeal on this issue, if for no other reason than the attorneys challenging Emanuel seem more interested in publicity than in offering up sound legal analysis.

FPCA Ballot Return Rates

I’ve written a few times about the new MOVE act that sought to improve the voting process for military and overseas voters.   It was well intended, and probably accomplished quite a bit.  But as with any law, it seems, the goals of the drafters were largely unmet.

The first problem was the well documented failure of many jurisdictions across the country to comply with the acts provisions.  With a year to prepare, these failures were inexcusable and largely preventable.

But the provision that I have been following that I believe has received too little attention is the emailing of ballots.

For most people with access to email, it seems to be the answer to most of our needs for speed and effiency.  However, the voting of a secret ballot makes email problematic.  So while we had a number of our FPCA voters request their ballots through email, I always had doubts about whether the process would work well.

For this first election, it seems to have fallen short of expectations for Champaign County.   For this election, we had 213 voters who requested a ballot through email and 583 who requested it through regular mail.  We had a 27% return rate for the email ballots and a 40% return rate for mail ballots.  For military voters, who seemed to be the primary focus of the law, we had 16 out of 41 email ballots returned (28%) against 93 out of 155 mail ballots returned (38%).

From our side of this, it’s easy to see why.  While the email can sound good, in practice it’s not easy.  In the ideal scenario, you would need a printer that could print two different size envelopes as well as a ballot on legal size paper.  Realistically, few people have the larger size transmittal envelope and many don’t even have access to legal paper.  In order to avoid mailing charges, you need to print a special logo on the envelope that is mailed to our office.  Regardless of your ability to have the preferred envelopes and paper, your ballot will need to be remade in our office.

I’m certain that a fair number of people who selected the email method came to find it frustrating and perhaps gave up.  It will be interesting to see how many people switch their preferences for future elections.

It also speaks to the benefits of certifying our ballot even sooner.   There were unnecessary delays at the state level that hopefully will be worked out in the coming years.  By mailing and emailing ballots sooner, we give voters extra time to change their delivery method if they find their first choice to not be good for them.

Overall, I’d call the new law a success for Champaign County voters in the military or overseas.

Retab finds a Glitch

This is our tenth election using the new optical scan voting system.  By most accounts, the system is working extremely well.

Illinois law requires that after every election, we retabulate the ballots in 5% of the precincts as selected by the State Board of Elections.  In our office, we have extended that retabulation to include a manual hand count of ballots in select races.

The results have been gratifying.  In every instance, where we have found a discrepancy between the machine count on election day and the machine count during the retabulation, we have been able to point to particular ballots that were the source the discrepancy, usually a voter marking the ballot with an X instead of filling in the oval.

Such was the case in 3 precincts from this last election.  Clearly identifiable ballots had improper markings that caused a discrepancy between the counts.  For example, you can see in Mahomet 1 the ballot that was marked with a complete vote for Eric Thorsland for County Board at the same time that the voter darkened the edge of the oval for Stephanie Holderfield.  That darkened edge didn’t register on election day, but did in the retabulation, causing an overvote.

However, for the first time, we had two ballots, in Mahomet 5, which alternately counted as overvotes for three offices, as unreadable, or correctly.  After identifying the ballots we continued to run them in a variety of orientations and failed to ever get a consistent outcome.

Examination of the ballots, which you can view on our website, doesn’t show us anything odd about them.  It was part of the same group of 808 other ballots that we received from our printer for that ballot style.  We also tried the ballots in a different tabulator and received the same odd results.  It remains a mystery to us.

To date, we’ve reviewed thousands of ballots by hand.  In fact, with the large number of discovery recounts we’ve done, the number is probably over 10,000.  This is the first time we’ve run across this problem.  It’s such a rare thing, with apparently no way to replicate, that I’m not sure I could even venture a guess as to how to prepare for or prevent it in the future.

But it does speak to the value of redundant counts of ballots and mandatory recounts in the event of close races.

Complete results here.

Two ways to make the media happy

In the election business, there are two things you can do to make the media jump for joy.

The first is to give them quick election results, preferably in time for the 10:00 pm news or at the very least tomorrow’s morning edition.  This comes with the additional benefit of getting the media safely tucked into bed by midnight.

The second is to screw something up in the election so that they have a ready made and easy to report story for the ensuing weeks.

Suffolk County, New York delivered on both this election.

On election night, they reported that the Democratic candidate for Congress won election with a margin of about 3500 votes.  Suffolk County was able to deliver that quick result in part because instead of reporting results from the computer card in each voting machine, they instead opted to have election judges phone in results from polling places.

That expedited process allowed the New York Times to report the next morning:

On Long Island, Representative Timothy Bishop, an eight-term Democratic incumbent, fended off a challenge from Randy Altschuler, a wealthy businessman who invested hundreds of thousands of dollars of his own money into the campaign.

The only problem was that somewhere along the line the communication between the election judges at polling places and the Suffolk County Board of Elections didn’t go right.  When the results were put into the computer directly from the computer cards from the polling place, instead of a 3500 vote victory for the Democrat, there was a 400 vote margin in favor of the Republican.  Oops.

Now, officials with the Board of Elections get to keep talking to the media as well as sending attorneys into court to deal with complaints, lawsuits, etc. from both sides in this battle.

I actually feel a little sorry for the folks in Suffolk County.  I know the feeling of trying to produce quick results for the media and candidates.  I’ve stuck to my guns and continue to put accuracy far ahead of speed in reporting results.  It’s actually caused me some grief with the media, but I’ve yet to run into a voter (except candidates and media) who has complained about the time it takes for us to report results.

I’ve also never had to go on television in the days after the election to explain to the people who elect me and pay my salary why the results I gave on election night were wrong.

Our culture today wants news immediately.  In fact, there’s some pretty strong indications that many would rather have wrong news quickly than well researched and documented news later.  For elections, where we need public trust in the results, this can be a dangerous temptation.  But it’s one that election authorities have to avoid.

In Champaign County we take election results off the computer card from the polling place.  We also do a manual audit of ballots cast at the polling place, early voting center, and absentee voting in our office, to make sure that every vote has been uploaded into the computer that reports results.  We also do a manual hand count of some ballots  in selected precincts after the election.

Waiting a few more hours for results seems unbearable for candidates and is a minor inconvenience for the media.  But for voters, having confidence in the accuracy of our election results has a value much higher than anything I can provide to candidates or the media.

More claims with no data

Tova Wang at Demos demonstrates anew that there is virtually no commitment on the part of so called reformers to acquire facts in the pursuit of  their agenda.  Here is what she wrote about 40 hours after the polls closed on election day.

Also noteworthy after Election Day had come and gone was the sudden silence from the fraud-mongerers and Tea Party poll watch groups. Not a peep of one case of substantiated fraud at the polling place.

On Thursday morning, there were few jurisdictions in America that had updated their voter registration rolls to reflect who voted.  Virtually no jurisdiction would have examined the applications to vote of anyone from election day.  I would be surprised to find a single jurisdiction in Illinois who has examined the statewide database to look for duplicate voters.

It was over a year before I was able to examine the registration lists in Champaign County and find 146 illegal votes cast in the 2008 election.   What would be the result of similar research this year?  I don’t know, but I can guess that groups like Demos will ignore them.

Further, we have no way of knowing whether anyone was dissuaded from fraud by the presence of poll watchers.  If a police car is stationed in open view of traffic and never catches a speeder, that is certainly not evidence that speeding on that particular stretch of road is no problem.  A serious effort at research would at least make an attempt to examine this dynamic.

And Demos does label this as research on their home page.  Less than two days after the polls closed, they are able to begin the spin on election fraud and say it didn’t happen, doesn’t happen, and no one should be worried.

In October last year I wrote about Reformers as Barriers to Reform.  Here is a portion of that.

In addition, those who are claiming to want data are also pushing ahead with reforms in the absence of data, leaving administrators wondering about the seriousness of the spoken desire of reformers for facts.

With their lightning quick strke at this issue, with no regard for gathering facts, Demos puts themselves squarely in the unserious group of reformers who have little interest in finding the truth.

Email No Panacea for Our Military

The MOVE Act is getting  a lot of attention of late, primarily for the failure of a number of jurisdictions to comply with its provisions.   The biggest obstacle to compliance was the primary schedule that shortens the window between certification of the ballot and the sending of ballots overseas.

One element of the MOVE Act that received a lot of attention was the provisions to allow for the emailing of ballots.  I really wasn’t sure how this would be received.  The early results for us, about three weeks after ballots have been mailed and emailed, is that the email is not increasing the number of votes cast.

For military voters, we emailed 42 ballots and just a single one has been returned.  A rate of 2.4%.  On the other hand, we have mailed 204 ballots, and already 33 have been returned.  A rate of 16.2%.

Now other factors certainly enter into this.  Many of these military ballots are sent within the country.  The final determination of the effectiveness of this method will be decided two weeks after the election when we do our final canvass.

But delays of three weeks or more in sending out ballots, either through the mail or email, are inexcusable.   Those justifying those delays by pointing to email delivery are relying on an unproven and untested method.

Voter Residency in Illinois

We get lots of questions from people about what constitutes “residency” for purposes of voting and for running for office.  As this is a University community, some people have concerns about students who are here temporarily but voting here.  The law is far from clear, but for students in Illinois, it is generally the case that they can declare either their campus or “home” address as their residence.

Now we have questions about the residency of Rahm Emanuel and whether he qualifies as a candidate for Mayor of Chicago.  As above, the definition of residence can be murky in Illinois law.  However, the discussion in the media has generally avoided the important factual determinations that have to be made.

In our circuit and appellate district, we had an interesting case involving residency;  People v. Baumgartner.  Since it’s a recent case, 2005, I think it gives critical guidance to this issue as it affects Emanuel.  The appellate court overruled the circuit court decision and ruled that Baumgartner did not commit perjury when he declared his Moultrie County address to be his “residence” despite owning a home in Champaign County.

Here is the paragraph in the appellate opinion that best applies to the Emanuel case.

Two elements are necessary to create a “residence” for voter registration purposes: physical presence and an intent to remain there as a permanent resident.   Delk v. Board of Election Commissioners, 112 Ill. App. 3d 735, 738, 445 N.E.2d 1232, 1235, 68 Ill. Dec. 379 (1983).   Residence is lost upon abandonment; however, “‘an absence for months, or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment.'” Stein v. County Board of School Trustees, 40 Ill. 2d 477, 480, 240 N.E.2d 668, 669 (1968), quoting Kreitz v. Behrensmeyer, 125 Ill. 141, 195, 17 N.E. 232, 253 (1888).  [*12]  “Where a person leaves his residence and goes to another place, even if it be another state, with an intention to return to his former abode, or with only a conditional intention of acquiring a new residence, he does not lose his former residence so long as his intention remains conditional.” Pope v. Board of Election Commissioners, 370 Ill. 196, 201, 18 N.E.2d 214, 216 (1938). To change residence, “there must be, both in fact and intention, an abandonment of the former residence and a new domicile acquired by actual residence, coupled with the intention to make it a permanent home.” Welsh v. Shumway, 232 Ill. 54, 77, 83 N.E. 549, 559 (1907).

As Emanuel apparently still owns his home and has a longstanding residence in Chicago, I think he’ll have no problem declaring and demonstrating that he had an intent to return.

This issue is of some importance here as professors on sabbatical or otherwise away have been known to rent out their homes while they are gone.  This does not take away their right to vote.