A federal judge has blocked the Democratic Party of Illinois from stepping in to defend an Illinois state elections law the party believes is essential to its election chances, because the law requires election officials to count mail-in ballots up to 14 days after Election Day, even those without a postmark, a provision Democrats admit boosts Democratic totals.
On Oct. 11, U.S. District Judge John F. Kness issued an order denying the state Democrats’ bid to stand alongside Illinois state election officials in court, to argue against Republican attempts to block the late vote counting on the grounds that Illinois’ mail-in balloting regime violates federal law and improperly waters down the votes of people who cast ballots in accordance with federal law.
In rejecting the Democrats’ petition to intervene in the case, Judge Kness recognized the Democratic Party’s interests in protecting the expanded voting rights of its voters under the state law. But the judge said, ultimately, the Illinois State Board of Elections should be required to defend its law on its own, because the state board should seek to secure the voting rights of all eligible Illinois voters, not just Democrats.
“Put another way, the State Board’s broader interest in the rights of all voters includes (the Democratic Party of Illinois’) narrower interests in the rights of its members,” Judge Kness wrote. “And the State Board’s effort to defend the Ballot Receipt Statute will inevitably include defending the ability of DPI’s members to have their ballots counted after Election Day.”
Earlier this spring, three Republicans, including downstate U.S. Rep. Michael J. Bost, challenged Illinois’ mail-in voting law in federal court.
The challenge rests on language in federal elections which requires votes in federal elections to 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, the lawsuit alleges Illinois’ vote-by-mail law violates that provision by allowing Illinois election officials to count votes that arrive in the mail, up to two weeks after the officially designated Election Day.
The Illinois law which established such a vote-by-mail system has been in place since 2020, when Democratic Gov. JB Pritzker and Illinois’ Democrat-dominated legislature rewrote the state’s election rules, ostensibly in response to the Covid-19 pandemic.
Republicans have alleged from the start that the new system creates large new opportunities for powerful political parties and organizations to cheat in elections.
While the plaintiffs concede the state is free to set rules for voting for state and local offices, they said the state cannot simply extend the deadline for receiving ballots for federal offices beyond the Election Day set by federal law. They said this could potentially allow hundreds of thousands of otherwise invalid votes to be cast, diluting the value of ballots cast by voters on or before Election Day, and potentially tipping the balance in close elections.
The lawsuit was aimed at the Illinois State Board of Elections and other officials involved in counting ballots.
However, the Illinois Democratic Party responded to the lawsuit, as well, asking the court for permission to defend the vote-by-mail regime. In their petition, the state Democrats concede the vote-by-mail system is key for Democratic election strategies, and they would be forced to spend big bucks to reorient their strategies if the court were to agree that the state law violated federal law.
The Department of Justice, under Democratic Attorney General Merrick Garland and Democratic President Joe Biden, has also filed in support of the Illinois law. In a brief filed in August, the Biden DOJ said they interpret federal law to place no limits on state election officials’ ability to extend “Election Day” over a period of weeks, so long as the law requires ballots to be cast or mailed by Election Day – even if the ballots lack a postmark proving they were legally cast.
With Election Day approaching in less than four weeks, the eyes of political observers in Illinois have turned to Judge Kness, awaiting his decision on the Republican challenge.
However, to date, the judge has ruled on the Democratic Party’s attempt to intervene.
The judge agreed that a ruling for the Republicans would be problematic for the Democratic Party, as it would require them to spend a significant portion of their “limited resources” on educating Democratic voters about any rules different from those in place in 2020 and in the June 2022 primary vote.
But Kness said Democrats can’t prove the State Board of Elections won’t adequately represent their interests, along with those of Republicans, independents and other Illinois voters, as the ISBE is also seeking to defend the vote-by-mail law prized by Democrats.
To allow the Democratic Party into the case now would slow down proceedings too much, the judge determined.
“Because (the Illinois Democratic Party) is interested only in a subset of Illinois voters yet makes functionally the same argument as Defendants in time-sensitive litigation, the Court finds that the interest of moving this case forward expeditiously is better served by avoiding the burdens inherent in adding a party at this stage,” Kness wrote.
The judge said he would allow the Democratic Party of Illinois to present their arguments in favor of maintaining the law, as a so-called amicus curiae, or friend of the court, a term for outside parties the court allows to file briefs in support of a particular position.
The Democratic Party of Illinois is represented by attorneys Coral A. Negron, of Jenner & Block, of Washington, D.C.; and Elisabeth A. Frost, Maya Sequeira, Ricard A. Medina and Abha Khanna, of Elias Law Group, of Washington, D.C., and Seattle.
Attorneys from the Elias Law Group have also represented Pritzker in other matters. Those other matters included drafting and sending letters threatening to sue Chicago television stations for airing a political advertisement they said defamed Pritzker by claiming the governor attempted to get a Veterans Administration nurse fired for running against him in the Democratic Party primary election in June.
The Republican plaintiffs are represented by attorneys Christine Svenson, of Svenson Law Offices, of Chicago; and T. Russell Nobile, Paul J. Orfanedes, Robert D. Popper and Eric W. Lee, of conservative activist organization, Judicial Watch, of Washington, D.C., and Gulfport, Mississippi.