From the Sun-Times:

State high court: late ballots don't count--yet

November 10, 2006
By STEVE LORD staff writer
GENEVA -- The Illinois Supreme Court Thursday afternoon said any votes cast in Kane County after 7 p.m. Tuesday don't count yet.

The court issued a stay of 16th Circuit Court Judge Keith Brown's order that kept polls in all 223 of Kane County's precincts open until 8:30 p.m. on Election Day. The stay affects about 1,100 votes, which should not change the outcome of any countywide or local races.

Brown made the ruling Tuesday afternoon at the request of the Kane County state's attorney's office on behalf of County Clerk John Cunningham because some precincts had trouble with the eSlate voting machines, causing those polling places to open late.

Although the late openings took place in only 62 precincts, Brown ordered all precincts be kept open later because it would be hard to know as of Tuesday afternoon exactly where all voters were turned away during the morning.

He also ordered that all those votes cast after 7 p.m. be considered provisional votes, which means they are subject to later scrutiny.

Attorneys for the Illinois Coalition for Immigrant and Refugee Rights argued that not all the polls should be allowed to stay open later, only the ones that actually opened late.

"We think the court abused its discretion in the way it did it, that all of the polls stayed open," said attorney William Quinlan, of Quinlan & Carroll in Chicago.

Some Democrats were concerned that allowing all the polls to stay open later helped Republicans get out more votes in traditionally GOP areas. They were particularly concerned because the office of U.S. House Speaker Dennis Hastert sent out a recorded telephone message after Tuesday's court ruling, telling voters about the later poll hours.

"I think it was a partisan thing," said Annie Collins, the Democratic candidate who lost her bid for Kane County clerk. "That's what happens when you open all of them."

The Supreme Court action Thursday is a stay of 10 days and was signed by Justice Thomas L. Kilbride. The stay will allow the court to decide on the merits of the argument as to whether the Circuit Court did overstep its bounds by keeping all the polls open.

Cunningham said Thursday afternoon the stay affects 1,124 votes cast after 7 p.m. He originally said Wednesday those votes already were counted, but he said Thursday they were not.

But the 332 provisional votes made during normal voting hours Tuesday have been acted on and added into the vote totals, he said.

Provisional voting came about as part of the Help America Vote Act, or HAVA, after the 2004 national election. It allows voters who are turned away because of questions over voting eligibility -- such as age, registration or residency, for example -- to vote and prove later they were eligible.

Cunningham said the Kane County State's Attorney John Barsanti will appear before the Supreme Court sometime within the next 10 days, possibly as early as today, to ask that the stay be withdrawn.

"There is some urgency, because we want to get the election certified," he said. "It's hard for me to believe that a judge would put a blanket on a person's right to vote, disenfranchising 1,100 people."