A potential cloud over vote counting in Illinois’ election was lifted late Monday when a federal judge put off until December arguments over the validity of mail-in ballots postmarked on or before Election Day but received by election authorities within two weeks afterward.
U.S. District Judge John Kness set Dec. 5 for oral arguments over a motion to dismiss the suit, which was filed in May in U.S. District Court in Chicago by a downstate Republican congressman and two GOP officials. The timing of the argument is too late to affect the Nov. 8 general election’s vote count.
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An adverse ruling on Election Day could have invalidated potentially tens of thousands of mailed general election ballots that are cast by Illinois voters, including military members serving overseas, and postmarked on or before this coming Election Day but received by election authorities afterward.
The lawsuit, led by four-term U.S. Rep. Mike Bost of Murphysboro, echoed former President Donald Trump’s rejected court challenges in other states in the lead-up to the 2020 presidential election that he falsely contends was stolen.
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The lawsuit was filed by the conservative legal organization Judicial Watch, which was among the groups that assisted Trump’s efforts to try to stop the counting of mail-in ballots after Election Day 2020.
The group states the Illinois lawsuit was an effort to ensure the integrity of elections as well as protect the rights of Bost and other registered voters.
At issue is a 2015 state law that allows vote-by-mail ballots to be counted if they are received within 14 days after Election Day if they were postmarked on or before the final day of voting. If the ballots lack a postmark or if it is illegible, ballots can be counted if the voter dated and signed the ballot on or before Election Day.
The 2015 law is also aimed at assisting military members and overseas citizens. For this year, the 14-day time period, in which provisional votes also are considered, ends Nov. 22. The suit had sought to have no vote-by-mail ballots counted that are received after Nov. 8.
The lawsuit contends the Illinois law violates federal law that establishes the first Tuesday after the first Monday in November of even-numbered years as Election Day for federal elections. The suit further contends that the Illinois law subjects Bost to harm, including expenses for post-Election Day poll watchers and the possibility mail-in ballots counted during the 14-day period “dilutes” “timely” votes cast up to and including Election Day.
In defending the state law, the Illinois attorney general’s office, headed by Democrat Kwame Raoul, counters that the Illinois statute is “crucial to ensuring the voting rights of millions of Illinoisans who avail themselves of the right to vote by mail.
“Without it, those voters risk disenfranchisement, despite timely casting their ballots, due to delayed mail delivery and/or inconsistent postmarking practices,” the attorney general’s office said.
In the 2020 presidential election — which traditionally has heavier participation than midterm elections and saw an uptick in vote-by-mail ballots amid the pandemic — one-third of the nearly 6.1 million votes cast in the state were by mail. Of that, an estimated 266,417 mailed ballots were received and counted after Election Day, representing 4.4% of all votes cast in Illinois in 2020.
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