The Biden administration has jumped into a court dispute over whether Illinois’ vote-by-mail law conflicts with federal election law, as the Democratic administration sided with Illinois Democrats who argue federal law doesn’t block election officials in the state from counting ballots received up to two weeks after Election Day.
On Aug. 31, attorneys with the U.S. Department of Justice filed a brief in Chicago federal court in the Republican-led legal challenge to the Illinois state law that allows Illinois election officials to count ballots received by mail up to 14 days after Election Day, even if those ballots lack a postmark proving when they may have been mailed.
“The plain text of the Federal Election Day Statutes does not preclude state law procedures designating particular times or places for casting, receiving, processing, and counting ballots - in this case, Illinois’s statute allowing for the counting of ballots cast by mail on or before election day, provided they are received by officials within fourteen days after election day,” the DOJ wrote in their brief, styled as a “statement of interest.”
“… Illinois law requires that voters must vote and mail in their ballots on or before election day, before any election results are publicized. This system ensures that there is a level playing field for all voters and that no voters have access to cumulative vote tallies before casting their vote.
“Federal law does not preclude Illinois’s decision to count ballots validly cast by mail on or before election day but received and tallied in the following fourteen days,” the assistant attorneys general from the Biden DOJ wrote.
The brief comes as the latest move in a court battle launched earlier this year by Republicans who are seeking a court order preventing Illinois Democrats from using Illinois’ vote by mail system to boost their vote totals.
The lawsuit was filed by three Republicans, including downstate U.S. Rep. Michael J. Bost.
The lawsuit notes federal law establishes votes in federal elections should be cast by “the first Tuesday after the first Monday in November of every even-numbered year.”
In 2022, that date will be Nov. 8.
However, under Illinois’ new election law, Illinois election officials will be allowed to continue receiving votes by mail for weeks after that date.
Illinois Republicans say the law, enacted by the state’s Democrat-dominated state legislature and Gov. JB Pritzker, improperly rewrote the voting rulings and processes in Illinois, allowing all Illinois voters the chance for the first time to vote by mail, not just those requesting absentee ballots.
They have asserted the law creates new opportunities for powerful political parties and campaign organizations to manipulate the system and cheat.
They have particularly criticized the provision in the law that requires election officials to count all ballots received up to 14 days after Election Day, even if those ballots have no postmark.
According to the plaintiffs, the state has the authority to set rules for balloting for state and local elections. However, the plaintiffs said federal law does not allow the state to simply extend the deadline for receiving ballots beyond Election Day for federal offices, potentially allowing hundreds of thousands of otherwise invalid votes to be cast. They said this “dilutes” the value of ballots cast by voters on or before Election Day, in accordance with federal law.
The lawsuit was aimed at the Illinois State Board of Elections and other officials involved in the counting of ballots.
The Illinois Democratic Party has responded to the lawsuit, as well, asking the court for permission to defend the vote by mail law. In their filing, they concede the vote by mail system is key for Democratic election strategies. They say to limit voting only to ballots received on or before Election Day would suppress Democratic voting turnout.
The judge has not yet ruled on various aspects of the case, including efforts to dismiss the lawsuit.
In the meantime, attorneys general from the administration of Democratic U.S. President Joe Biden have offered their perspective on the lawsuit.
In their statement of interest, they told the court the DOJ believes the Republican plaintiffs have incorrectly argued federal election law and U.S. Supreme Court precedent governing how federal laws interact with state election laws.
They particularly pointed to the Supreme Court’s 1997 decision in the case of Foster v Love. In that ruling and others, the Supreme Court “embraced a narrow view of what state laws the Federal Election Day Statutes preempt.”
The Biden attorneys general said the Supreme Court ruled the federal laws only impost “the limitation that an election may not conclude prior to election day.”]
The attorneys general said this means state election officials are allowed to continue receiving ballots after Election Day, so long as some safeguard is in place to prevent people from casting ballots after Election Day.
The Biden attorneys general said the Department of Justice believes Illinois has such a safeguard in place, in the form of a “mailbox rule for absentee ballots,” which requires the ballot be placed in the mail on or before Election Day, and be received up to 14 days after Election Day.
The law technically requires the ballot be postmarked on or before Election Day. However, the law allows mail-in ballots to be counted without a postmark, so long as the ballot includes a “certification” from the voter claiming the ballot was legally mailed by Election Day.
The Biden attorneys general said they believe this means the Illinois law “clearly does not permit voters to cast votes after election day is over.”
Rather, they assert the Illinois law is no different than other state election laws “designating particular times or places for casting, receiving, processing, and counting ballots.”
And they said the 14-day vote-receipt period is consistent with federal laws requiring state election officials to receive ballots from U.S. Armed Forces personnel stationed overseas, “to ensure that they have time to receive, vote, and return their ballots in time for them to be counted.”
The brief was filed assistant U.S. attorneys general Jane Allison Sitton, Kristen Clarke, Rebecca B. Bond, T. Christian Herren Jr., Timothy F. Mellett and Holly F.B. Berlin, of the Civil Rights Division of the U.S. Department of Justice.