A federal judge has dismissed a lawsuit brought by a downstate Republican congressman and two GOP officials that sought to block the state from counting mail-in ballots cast on or before Election Day, but received by election authorities up to two weeks afterward.
U.S. District Judge John Kness ruled that five-term U.S. Rep. Mike Bost of Murphysboro and two prospective 2024 GOP presidential electors lacked standing to sue the State Board of Elections over an Illinois law allowing mail-in ballots to be counted in the 14 days after Election Day as long as they were postmarked or certified on or before that day.
More than just rejecting the three Republicans’ standing to file suit, Kness explicitly ruled that Illinois’ 2015 law complied with the U.S. Constitution as well as federal election law.
“By implementing the statute, Illinois is following the constitutional command that states determine the time, place, and manner of elections,” Kness wrote in a ruling released Wednesday.
“In addition, the statute further does not conflict with the federal mandate that Election Day be held on the Tuesday after the first Monday in November,” the judge wrote “By counting only mail-in ballots postmarked on or before Election Day, the statute does not extend the day for casting votes in a federal election.”
“Voting (as an act) and counting votes (as a separate act) are not the same thing, and the statute allows counting alone — not voting — to continue after Election Day,” the judge wrote.
The suit was filed in May of last year by the conservative legal organization Judicial Watch on behalf of Bost, Laura Pollastrini, a member of the Republican State Central Committee from Kane County, and Susan Sweeney, who was appointed a Trump elector from Illinois in 2020.
The suit contended the state law violated the federally established date for federal elections. It also contended Bost was subjected to harm, including expenses for post-Election Day poll watchers and the possibility that mail-in ballots counted during the 14-day period “dilutes” votes “timely” cast up to and including Election Day.
Judicial Watch was among the groups that assisted former President Donald Trump’s efforts to stop the counting of mail-in ballots after Election Day 2020. The group said the lawsuit was an effort to ensure the integrity of elections as well as protect the rights of Bost and other registered voters.
Tom Fitton, who heads the group, questioned how Bost as a political candidate lacked the standing to file suit.
“I presume we will appeal and seek to just stop this obviously improper counting of ballots for forever and a day,” Fitton said.
But in his ruling, Kness, who was appointed to the federal bench by Trump in 2019, said those contesting the law failed to plead “sufficiently concrete, particularized, and imminent injuries sufficient to meet the requirement of standing.”
Additionally, he said, if they had achieved standing by those means, they failed to clear the bar to sue states and state agencies set by the 11th Amendment.
Bost had contended he had a particular right to sue, arguing the law forced him to spend significant resources on his campaign for an additional two weeks after Election Day. But Kness rejected that argument.
“It is mere conjecture that, if congressman Bost does not spend the time and resources to confer with his staff and watch the results roll in, his risk of losing the election will increase,” the judge wrote. “Under the letter of Illinois law, all votes must be cast by Election Day, so congressman Bost’s electoral fate is sealed at midnight on Election Day, regardless of the resources he expends after the fact.”
Bost’s challenge to the law was somewhat ironic since he touts his past service in the Marines and the law was designed in part to meet federal voting requirements for military members serving overseas. The U.S. Department of Justice issued a “statement of interest” in support of the state of Illinois, in part citing protections for military members to have their votes counted.
Bost already has an announced 2024 Republican primary challenger, unsuccessful 2022 GOP governor candidate Darren Bailey of Xenia, in the ruby red, 34-county 12th Congressional District.
The lawsuit played out as Republicans have done an about face on mail-in voting. Trump as a 2020 presidential candidate told voters not to trust mail-in voting, while Illinois Republicans sought to encourage the practice in the 2022 statewide elections in an effort to cut into Democratic numbers.
For 2024, the national Republican Party is embracing mail-in voting and Trump has endorsed the effort.
Mail-in voting has steadily gained popularity in Illinois and represented more than one-third of the ballots cast in the pandemic 2020 general election. In last year’s general election, about 18% of the votes statewide were cast by mail. Illinois also offers voters the opportunity to permanently receive a mail-in ballot for elections.
State elections board officials said 115,991 mail-in ballots, nearly 16% of all mail ballots counted, were returned in the two week period after the Nov. 8, 2022, general election.
State Rep. Elizabeth Hernandez, who chairs the Illinois Democratic Party, called the ruling “a win for voting rights and a loss for those who wish to suppress fairly counted votes to suit their political ambitions.”
Republicans’ “effort to override the will of the voters with this baseless lawsuit rather than accepting the results of our elections was as unsuccessful as their campaigns,” Hernandez said in a statement.
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