Il-14: The Recount Dilemma
by bored now, Sat Feb 09, 2008 at 06:04:45 AM EST
richard k. means, the best progressive election lawyer in the state of illinois, explains that the procedure for obtaining a recount is quite clear:
A discovery recount is only available in Illinois to a candidate who is within 95% of the winner. Even then you get to recount only 25% of the precincts in every election jusridiction in the district for a pidling $10 per precinct. In order to change the result, you have to go to court and prove that, had certain very specificly described errors not been made, that your candidate would have won.
means is one of the authors of the 2002 handbook on illinois election law published by the illinois institute for continuing legal education and wrote the chapter on recounts in the state.
laesch would clearly be within his right to call for a discovery recount (in the regular primary), since he's within the margin allowed by law. but, as the hill points out,
Split Illinois results could muddle Dems' plans to take Hastert seat
By Aaron Blake
Posted: 02/06/08 07:12 PM [ET]
A close race in the Democratic contest to succeed former House Speaker Dennis Hastert (R-Ill.) could hurt the party's chances to win Hastert's seat in a March special election to fill out the term, and in a general election in November.
Bill Foster led John Laesch by six points and declared victory in the Democratic primary for the special election to fill the seat for the remainder of Hastert's term. He will now face Republican Jim Oberweis, who won his party's special election.
But in the contest to be the Democratic nominee in November, Foster led Laesch by just 323 votes out of 75,000 cast.
Laesch, the Democratic nominee against Hastert in 2006, has yet to concede, but also has yet to ask for a recount.
If the result changed and Laesch became the Democratic nominee in the general primary, Democrats would have different candidates in the March special election to fill out Hastert's term, and in the general election to elect a candidate to the 111th Congress.
In effect, Foster could potentially win the seat next month but not be his party's nominee in November.
A challenge to the result could also cause Foster additional headaches during the short five-week period before the special election, which will be held March 8. The regular primary result will not be certified until March 7. This could make his chances of defeating Oberweis in a district that favored President Bush in the 2004 election even more difficult.
there are many misperceptions about recounts, and some wishful thinking, but there's considerable pressure for the laesch campaign to go through an expensive and tedious recount -- just because. laesch himself hasn't ruled out a recount request. but the claim that they are waiting for the absentee ballots to come in before conceding is worrisome:
Kendall County - 10 Outstanding Democratic Absentee Ballots
Kane County - 82 Outstanding Democratic Ballots, there are additional military and student ballots out but according to the Clerk's office an extremely small number of those will be returned.
City of Aurora - There are a total of 100-130 absentee and provisional ballots. They would not indicate the exact number and these include Republican and Non-Partisan ballots.
Dekalb - 31 Total outstanding Democratic ballots.
Dupage is going to take a while.
even if laesch won every single one of the outstanding ballots, there aren't enough that will be returned to overturn this election. an early comment about "counting provisional ballots" was misinformed, as provisional ballots are counted in the initial returns, and removed after 48 hours if cause is provided.
the confusion we see coming out of the laesch camp seems to be based on progressive resentments about elections built up over this decade, the lack of professional campaign management and a misunderstanding of election law by laesch's supporters. i can't clear all that up, but i can explain some of what laesch would face if he did decide he wanted a recount.
first of all, it's important to acknowledge that recounts can change election outcomes. one need only look at the gubernatorial race in washington state for that. closer to home -- and under the same laws that would apply if laesch were to request a recount -- we find:
The Mayoral Election in Calument City was overturned 3 or 4 years ago for absentee ballot fraud. I [rich means] reversed a Palatine Rural Fire District tax increase referendum about 5 or 6 years ago because the election judges gave voters the wrong ballot. There are probably 4 election contests filed every year in Illinois and 20-25% win.
given the laesch campaign's paucity of resources, i asked specifically, "how much can a campaign achieve for free or with relatively little in way of funds?" means' answer was pretty clear:
Nothing. The half dozen of lawyers in Illinois experienced in this kind of case charge, like I do, about $250 per hour. A congressional district discovery recount could cost upwards of $25,000 and a full-blown election contest in court could cost ballpark $100,000 if hard fought on both sides.
btw (and please, folks, don't interpret this as anymore than what it is), if i wanted to go forward with a recount, i would certainly be hiring means, given that he's successfully overturned elections in the past, wrote the book (as it were) on the subject, and has been taking on the machine for years with much success. i'm not advising anyone, i'm just sayin'.
the time frame for all this -- a time frame made more dramatic, given the approach of the special election -- is compact:
Within 5 days after the official proclamation of results, you have to file petitions in each election board and each county clerk in the district. Investigation and other preparations should begin right after the polls close and the discovery recount petition must be filed within 5 days after the proclamation which will ocurr about February 26.
another election law attorney i consulted concurs with rich's investigation advise. remember,
In order to change the result, you have to go to court and prove that, had certain very specificly described errors not been made, that your candidate would have won.
ballot fraud -- and this typically means absentee ballot fraud -- is the primary justification used in recounts that lead to the successful reversal of an election result. and ballot fraud is the tool of the local party establishment, not the "outsider" candidate or campaign. much has been made about how laesch was the preferred candidate of the local political establishment (which i initially rejected because i understood the tensions between a local democratic official and laesch -- but my extrapolation turned out to be wrong). it would have been laesch, not foster, who would have had the opportunity to commit ballot fraud -- and i don't think anyone would argue that laesch or his campaign would have done so. the point is that there is little that laesch could hope to achieve by a recount, given his status as the local party establishment candidate.
not to mention how expensive it would be. given the import of any such recount and followup procedures, one could expect foster to aggressively defend his victory in the general primary. means tells us that "Both the winner and the petitioning loser and credentialled press" can oversee recount procedures. the process is completely transparent. the magic, as it were, had to take place before a recount was requested.
clout street, the chicago tribune's local politics blog, notes that "Foster has declared victory, but Laesch has not yet conceded." contrast that with the very similar situation tuesday night where the local democratic establishment candidate tom allen conceded the race to outsider candidate anita alvarez before even 70% of the ballots were counted. less than 1% of the vote separated those two, as well. but allen knew, because he had the advice of professional management, that nothing would change. so allen looks gracious by conceding before any media outlet was ready to call the race. i don't think anyone would suggest that laesch looks gracious here:
Democrat to wait for all ballots to be counted in special race to succeed Hastert
Posted by James Kimberly at 12:00 p.m.
Democrat John Laesch said Friday that he won't concede the Democratic primary election in the 14th Congressional District until all provisional and absentee ballots are counted.
the reality is that modern media effects people's perceptions of elections. in this case, people think that after the polls are closed, the elections are over. laesch is technically correct when he notes that all the votes have not been counted (even though outstanding votes could not alter the outcome). but his decision to wait does look like sour grapes. it only serves to divide local democrats. after all that work that laesch and his supporters put into building up the party, it's curious that he would now take steps to divide it. the ball is, most definitely, in john laesch's court...