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Undervote law stirs clerks, prompts recall

Paul LeTang of St. Charles participates in early voting at the Kane County Government Center in Geneva on Friday morning. (Photo by Sandy Bressner –
Paul LeTang of St. Charles participates in early voting at the Kane County Government Center in Geneva on Friday morning. (Photo by Sandy Bressner –

Mary Heineman of Sugar Grove takes voting very seriously. A former village trustee, Heineman only votes in races where she has studied the candidates and skips others or ones with a candidate that is unopposed.

In voting parlance, the practice is known as undervoting.

“I undervote all the time,” Heineman said. “If I’m not educated about people in that election, I don’t vote. Some races I care about more than others and I educate myself.”

A state law to protect voters from mistakenly undervoting will go into effect for the Feb. 2 primary election and has many county clerks in an uproar that it will violate voter privacy.

The Illinois Undervote Notification Law, enacted in 2007, affects constitutional offices, such as governor, lieutenant governor, attorney general, secretary of state, comptroller and treasurer, officials said. This is the first election with constitutional offices since it was enacted.

It has caused such consternation among county clerks, one filed a suit that was dismissed and inspired a handful of refuseniks who will not follow it.

The law will have no effect in Kane County because the county’s electronic voting equipment already tells voters they’ve undervoted, County Clerk Jack Cunningham said.

The difference is, he said, Kane voters are notified within the privacy of the voting booth and they can either go back and vote or approve the ballot as is. Nearly all the other counties rely on optical scanning of a paper ballot. Those undervotes will be noted by a voting judge in the polling place.

Cunningham said counties with older generation equipment require upgrades that allow for catching undervotes. The upgrade catches all the undervotes, not just the constitutional offices.

For example, if there are five candidates for three trustee seats and a voter purposely chooses to vote for one or two – known as bullet voting – the equipment notifies the election judge of the undervote.

“It was one of the reasons we went to the system we did,” Cunningham said. “We thought (the other system) sort of violated the secrecy of the vote.”

Heineman agrees.

“It bothers me from the privacy perspective,” Heineman said. “It’s so ridiculous. A great amount of the population undervotes every election. There might be one person who accidentally forgot to vote for somebody, but it will not make a difference in the end. This is just more bureaucracy.”

• • •

Some lawmakers are on the same page, having proposed that the law be repealed before the Nov. 2 general election.

House Bill 4687 sponsored by State Rep. Jim Watson, R-Jacksonville, has the identical language to repeal it as Senate Bill 2503 sponsored by State Sen. William Haine, D-Alton.

Haine said the law violates voter secrecy.

“What will happen in some areas is the ballot will be kicked out and the election judge can see how the person voted for other offices, and that is intolerable,” Haine said. “It (the repeal) restores us to the custom of the last century or more that we have a ballot that is completely secret.”

Haine said the law also presumes an undervote is an error.

“An undervote may be the voter’s intent,” Haine said. “If both parties nominate dunderheads, then the option of the citizen is not to vote for either one and no one should question it. Casting a ballot should be under the complete, utter and exclusive control of the voter.”

Watson said the measure was included in an omnibus bill as part of the Help America Vote Act.

“This is a perfect paradigm of the legislature overreacting,” Watson said. “It was well-intentioned, but at some point, there has to be a level of individual competency ... we can’t spoon feed everyone on everything. If you don’t want to vote for somebody ... you should not be embarrassed in the polling place,” Watson said.

A bipartisan repeal is good news to Heineman.

“I’m glad to hear there are sane people in both parties,” Heineman said.

• • •

Iroquois County Clerk Lisa Fancher believes the law takes away some voter privacy.

“You still have the right to undervote,” Fancher said. “If you are undervoting and theá ballot comes back out, other people in the voters area, and the judge, know you undervoted on something. You have to come to the device and push override. It is a privacy issue.”

Their upgraded voting equipment will read all undervotes, not just those for constitutional offices, she said.

“It was $6,000 for the computer chips to be installed in our equipment to make the machines compliant,” Francher said. “The cost (for upgrading) is also a big issue on many counties. We’re kind of broke here in ‘Corn County’ down here. We did get a grant from the Help America Vote Act that paid for it.”

• • •

McHenry County Clerk Katherine Schultz is one of the refusniks.

After consulting with the state’s attorney, she wrote a letter to the Illinois State Board of Elections saying she would not comply with the new law.

For her, it was a timing issue. The state did not certify the upgrade to McHenry’s voting equipment until the day before Thanksgiving.

“I told the state board it was too late,” Schultz said. “It was too close to the election to guarantee there would be no problems.”

After the state certified the upgrade, the clerk’s internal checks found problems with ballots being rejected for other reasons than undervoting.

“Because of the way I lay my ballot out, the Democratic, Green and a third of the Republican ballots would be rejected,” Schultz said. “The state statute requires me to make sure elections are run in an honest way. There are too many ifs that late in the game for me to be comfortable.”

Dan White, executive director of the state board of elections, said the state will not take action against Schultz or the handful of other county clerks who have refused to comply with the undervote law.

“It is state law, passed over two years ago and it is our obligation to enforce it,” White said. “There is very little option from the board’s standpoint. We took all reasonable measures to make sure the equipment was tested and worked. I believe we did our job to enforce the law. The vast majority of election authorities are conforming with the provision.”

Illinois Undervote Notification Law:

(10 ILCS 5/18‑5) (from Ch. 46, par. 18‑5)
Immediately after voting, the voter shall be instructed whether the voting equipment, if used, accepted or rejected the ballot or identified the ballot as under‑voted. A voter whose ballot is identified as under‑voted for a statewide constitutional office may return to the voting booth and complete the voting of that ballot. A voter whose ballot is not accepted by the voting equipment may, upon surrendering the ballot, request and vote another ballot. The voter's surrendered ballot shall be initialed by the election judge and handled as provided in the appropriate Article governing that voting equipment.

House Bill 4687and Senate Billá 2503:
Amends the Election Code. Removes the requirements that a voter be informed that his or her ballot was undervoted for statewide constitutional officers; that a non-early voter be informed that his or her ballot was accepted or rejected; and that the voter be permitted to vote another ballot if his or her ballot was rejected or undervoted. Effective immediately.

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