A federal judge will not rule before Election Day on a Republican lawsuit, filed months ago, challenging an Illinois election law, supported by Democrats, that requires election officials to count mail-in ballots received up to two weeks after Election Day, even if those ballots carry no proof they were mailed by Election Day.
On the eve of Election Day, with hours to go before polling places opened across the state for in-person voting, U.S. District Judge John F. Kness declared he needs to hold a hearing to determine if a group of Republicans should be allowed to continue with their lawsuit against Illinois state election officials.
“Upon further consideration of the parties' written arguments, the Court finds that the decisional process for this motion would be aided by oral argument,” Kness wrote in an order filed late in the day Nov. 7.
Kness ordered lawyers for the state and the Republican plaintiffs to present their arguments in a hearing before him on Dec. 5, nearly a month after Election Day.
Kness was appointed to the court in 2020 by former President Donald Trump, a Republican.
In May, U.S. Rep. Michael J. Bost, of downstate Jackson County, and two other Illinois Republicans filed suit in Chicago federal court against the Illinois State Board of Elections, asking the judge to declare Illinois can’t count mail-in ballots received after Election Day, if those ballots include votes for federal offices.
The lawsuit takes aim at a law enacted by the state’s Democratic supermajority state legislature and Gov. JB Pritzker in 2020. The lawsuit claims Democrats improperly rewrote the voting rulings and processes in Illinois, allowing all Illinois voters the chance to vote by mail, and not just those requesting absentee ballots.
Further, the law requires election officials to count all ballots received by mail up to 14 days after Election Day, and to accept those ballots even if there is no proof they were actually mailed by Election Day, as ostensibly required by law.
The lawsuit claims these particular provisions clash with federal law which establishes an official Election Day for federal offices, including the U.S. House, Senate and President. Under the law, votes must be cast by “the first Tuesday after the first Monday in November of every even-numbered year.”
This year, that date is Nov. 8.
However, the lawsuit says, the Illinois vote by mail law improperly turns Election Day into an election period, without authorization from Congress to do so.
Critics of the law have asserted the change in the law creates new opportunities for powerful political parties and campaign organizations to manipulate the system and cheat.
According to plaintiffs, the state has the authority to set rules for balloting for state and local elections. But they say the state has no power 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, following the law.
Illinois state election officials, with the support of the Illinois Democratic Party, has asked the judge to dismiss the lawsuit.
The U.S. Department of Justice, under Democratic President Joe Biden, has also waded into the matter.
All of the state and federal officials, with their Democratic allies, say the Illinois law doesn’t conflict with federal law.
The state officials argue the plaintiffs have no standing to sue, because they can’t prove the extended mail-in ballot receipt deadline harms their ability to vote or run for office.
The extended time, they say, is needed to allow time for the U.S. Postal Service to deliver all mailed ballots. The court would effectively disenfranchise large numbers of voters if it were to strike down the law.
Further, the state said the Republicans’ legal challenge is similar to other, similar challenges to vote by mail regimes rejected by courts in other states.
The Biden DOJ said they also believe the state law does not conflict with federal law, as it is enough for the law to require all ballots to be mailed by Election Day. The Biden DOJ further claimed it is enough to include a “certification” from voters that the ballot was mailed by Election Day.
The Biden DOJ said they believe this means the Illinois law “clearly does not permit voters to cast votes after election day is over.”
The state of Illinois filed its motion to dismiss in July. The Biden DOJ filed its brief in support of the state’s position in September.
Kness, however, opted not to rule on the extensively briefed motion before Election Day. With hours to go before polls opened for in-person voting on Election Day, the judge said he believed he needed still more time and needed to hear oral arguments, in person, from attorneys for both sides before he could rule on the state’s motion to dismiss.
This means neither side will get an answer to the legal questions in the lawsuit until
Bost and the other 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.
The Illinois state election officials are represented by the Illinois Attorney General’s office.
The Democratic Party of Illinois has been 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.