Can Illinois election authorities run absentee and early-voting ballots through tabulators before 7:00 p.m. on Election Day, as long as the totals are not uploaded or combined with precinct results until after the polls close?
Plain-English summary
A LaSalle County state's attorney, writing as president of the Illinois State's Attorneys' Association, asked the AG whether local election authorities could speed Election Night by running absentee and early ballots through optical-scan tabulators before 7:00 p.m., as long as they waited until after the polls closed to upload the totals and combine them with in-person precinct counts.
AG Lisa Madigan said no. The Election Code's plain language requires that absentee ballots returned before the polls close "shall be counted * * * on the day of the election after 7:00 p.m." (sections 19-8 and 20-8), and that early-voting ballots "shall not be counted until after the polls are closed on election day" (section 19A-25.5). Polls close at 7:00 p.m. (section 17-1). The AG read "counting" to include the act of feeding ballots through a tabulator, because the tabulator computes vote totals for each candidate as it scans, even if the totals are not displayed or uploaded.
The opinion noted public-policy reasons reinforcing the textual reading: pre-7:00 results, even if held internally, could leak; conducting all counting after the polls close gives parties, candidates, and qualified civic organizations the chance to observe the entire process under the open-counting provisions of the Code.
The AG sent a copy of the analysis to the State Board of Elections, all state's attorneys, all county clerks, and all election commissions, treating it as statewide guidance.
Currency note
This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: What does the Election Code say about when absentee ballots can be counted?
A: Sections 19-8(b) and 20-8(b) of the Code provided at the time of the opinion that absentee ballots received before the close of the polls "shall be counted in the central ballot counting location of the election authority on the day of the election after 7:00 p.m." Section 19-8(f) added that counting required to begin after the polls close "shall commence no later than 8:00 p.m." and shall continue until all ballots required to be counted that day have been counted.
Q: And early-voting ballots?
A: Section 19A-25.5 provided that early ballots "shall not be counted until after the polls are closed on election day."
Q: Why doesn't running ballots through a tabulator early count as just 'preparing' them?
A: The AG read "counting" in its plain meaning. The tabulator is the device that computes how many votes each candidate received from each scanned ballot. The Code itself referred to scanning as counting (section 24B-10.1: "Ballots may then be counted by entering or scanning each ballot into the automatic tabulating equipment"). The AG concluded that the act of running ballots through the tabulator was itself counting, regardless of whether the totals were uploaded.
Q: Why does it matter when the polls close?
A: Two reasons in the opinion. First, pre-close totals could leak, creating an appearance that an election authority's irregular procedure had affected the outcome. Second, the Code (sections 19-8(h) and 20-8(h), plus the open-counting safeguards in sections 24A-13, 24B-13, 24C-14) gives political parties, candidates, and qualified civic organizations the right to observe the counting process. Pre-close tabulation, with no observers present, would defeat that right.
Q: When can polls stay open past 7:00 p.m.?
A: The opinion noted limited exceptions. Federal or state court orders extending the polls (10 ILCS 5/18A-5(a)(3)) and voters in line at 7:00 p.m. who must be allowed to vote per State Board of Elections guidance.
Background and statutory framework
Articles 19 and 20 of the Election Code govern voting by absent civilian electors and absent service-member electors, respectively. Article 19A governs early voting. Each article has its own counting-time provision, but they all converge on the same rule: counting may not begin until after the polls close on Election Day.
The structure exists for two reasons that have been recognized in Illinois election law since at least the 1950s and 1960s: first, to keep absentee and early returns from influencing the in-person vote (a real concern during long election days); and second, to keep the counting process transparent and observable. The opinion drew on the longstanding line of cases (Glenn v. Radden, People ex rel. Harris v. Powell, Hester v. Kamykowski) holding that election laws "exist to preserve the integrity of republican government, and impose a duty of obedience on all persons within their scope."
The opinion's distribution list (State Board of Elections, all state's attorneys, all county clerks, all election commissions) signaled that the AG intended the analysis to be applied uniformly across Illinois jurisdictions.
Citations and references
Statutes:
- 10 ILCS 5/1-1 et seq.; 5/17-1; 5/18A-5(a)(3); 5/19-1 et seq.; 5/19-8; 5/19A-5 et seq., 5/19A-25.5; 5/20-1 et seq., 5/20-8; 5/24A-13; 5/24B-10.1; 5/24B-13; 5/24C-14
Cases:
- Blum v. Koster, 235 Ill. 2d 21 (2009)
- First American Bank Corp. v. Henry, 239 Ill. 2d 511 (2011)
- Glenn v. Radden, 127 Ill. App. 3d 712 (1984)
- People ex rel. Harris v. Powell, 35 Ill. 2d 384 (1966)
- Hester v. Kamykowski, 13 Ill. 2d 481 (1958)
Source
- Landing page: https://illinoisattorneygeneral.gov/opinions/
- Original PDF: https://illinoisattorneygeneral.gov/dA/037ebd61ab/2014%2014-001%20ELECTIONS%20Proper%20Time%20for%20Counting%20Absentee%20and%20Early%20Voters%20Ballots.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
October 15, 2014
FILE NO. 14-001
ELECTIONS:
Proper Time for Counting Absentee Voters' Ballots and Early Voters' Ballots
The Honorable Brian J. Towne
State's Attorney, LaSalle County
President, Illinois State's Attorneys' Association
707 East Etna Road, Suite 251
Ottawa, Illinois 61350
Dear Mr. Towne:
I have your letter requesting an opinion on a question raised by at least one Illinois county regarding the proper time to count absentee voters' ballots and early voters' ballots. Specifically, the issue was whether it is permissible for local election authorities and their staffs to process absentee voters' ballots and early voters' ballots by running them through a ballot tabulator before 7:00 p.m. on the day of the election, as long as they wait until after 7:00 p.m. to upload the totals for the ballots and to consolidate those totals with the in-person precinct tabulations.
To provide guidance to election authorities and their legal advisors, and to promote the uniform application of the State's election laws, the Office of the Attorney General provides the following legal analysis, a copy of which will be provided to all local election authorities. This analysis focuses on the Election Code (10 ILCS 5/1-1 et seq. (West 2012)) requirement that absentee voters' ballots and early voters' ballots received on or before the day of the election must be counted after 7:00 p.m. on election day. Consequently, it is my opinion that no absentee voters' ballots or early voters' ballots should be placed into the tabulators prior to 7:00 p.m. on the day of the election.
ANALYSIS
Articles 19 and 20 of the Election Code (10 ILCS 5/19-1 et seq., 20-1 et seq. (West 2012)), respectively, set out the procedures for voting by absent electors and by absent electors who are members of the United States Service and their qualifying family members. Sections 19-8 and 20-8 of the Code (10 ILCS 5/19-8, 20-8 (West 2012)) provide, with respect to absentee voters' ballots received before the closing of the polls on election day:
(b) Each absent voter's ballot returned to an election authority, by any means authorized by this Article, and received by that election authority before the closing of the polls on election day shall be endorsed by the receiving election authority with the day and hour of receipt and shall be counted in the central ballot counting location of the election authority on the day of the election after 7:00 p.m., except as provided in subsections (g) and (g-5).
(d) Special write-in absentee voter's blank ballots returned to an election authority, by any means authorized by this Article, and received by the election authority at any time before the closing of the polls on election day shall be endorsed by the receiving election authority with the day and hour of receipt and shall be counted at the central ballot counting location of the election authority during the same period provided for counting absent voters' ballots under subsections (b), (g), and (g-5). * * *
(f) Counting required under this Section to begin 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. The counting shall continue until all absent voters' ballots and special write-in absentee voter's blank ballots required to be counted on election day have been counted.
Similarly, article 19A of the Election Code (10 ILCS 5/19A-5 et seq. (West 2012)), which sets out the procedure for early voting, provides that early ballots "shall not be counted until after the polls are closed on election day." 10 ILCS 5/19A-25.5 (West 2012). Polls are required to close at 7:00 p.m. on the day of the election. 10 ILCS 5/17-1 (West 2012).
The primary purpose of statutory construction is to ascertain and give effect to the intent of the General Assembly. The best indicator of the legislature's intent is the language of the statute, given its plain and ordinary meaning. Blum v. Koster, 235 Ill. 2d 21, 29 (2009). Where statutory language is clear and unambiguous, it must be given effect as written. First American Bank Corp. v. Henry, 239 Ill. 2d 511, 516 (2011).
The Election Code provides that absentee voters' ballots received by the election authority before the closing of the polls on election day "shall be counted * * * on the day of the election after 7:00 p.m." Early ballots also "shall not be counted until after the polls are closed on election day." The act of running absentee voters' ballots and early voters' ballots through tabulator equipment which computes and totals the number of absentee ballot and early ballot votes received by each candidate clearly constitutes "counting" as that term is ordinarily understood. Accord 10 ILCS 5/24B-10.1 (West 2012) ("Ballots may then be counted by entering or scanning each ballot into the automatic tabulating equipment").
We recognize that the act of running only the absentee voters' ballots and/or early voters' ballots through the tabulator equipment does not result in a total precinct count for a candidate or proposition. To arrive at a total vote count for the precinct, the absentee voter and early voter totals must still be uploaded and consolidated with the in-person precinct vote count. However, the initial computation of absentee and early votes is still "counting." Accordingly, pursuant to the plain language of sections 19-8, 20-8, and 19A-25.5 of the Election Code, it is my opinion that a local election authority may not run absentee voters' ballots or early voters' ballots through a tabulator before 7:00 p.m. on election day.
This construction of the statutory language is also supported by public policy considerations. Election "laws exist to preserve the integrity of republican government, and impose a duty of obedience on all persons within their scope." See generally Glenn v. Radden, 127 Ill. App. 3d 712, 714-15 (1984), citing People ex rel. Harris v. Powell, 35 Ill. 2d 384, 387 (1966) and Hester v. Kamykowski, 13 Ill. 2d 481, 485 (1958). By beginning to count the ballots before the polls close at 7:00 p.m., it may be suggested that because of the irregular procedure employed, the conduct of the election authorities somehow affected the outcome of the election or gave a particular candidate or political party an unfair advantage (e.g., that absentee ballot and/or early ballot election results were leaked by or posted by the staff of the election authority). Further, by waiting until after the polls close to count all ballots, the election authorities may ensure that "[e]ach political party, candidate, and qualified civic organization" has the opportunity to observe the entire ballot counting process. See 10 ILCS 5/19-8(h), 20-8(h) (West 2012); see also 10 ILCS 5/24A-13, 24B-13, 24C-14 (West 2012). Therefore, it is my opinion that no absentee voters' ballots or early voters' ballots should be placed in the tabulators before 7:00 p.m. on the day of the election.
Very truly yours,
LISA MADIGAN
ATTORNEY GENERAL
cc: The State Board of Elections
All State's Attorneys
All County Clerks
All Election Commissions