A federal judge has sealed off a lawsuit in which a Republican Congressman led a challenge to Illinois’ vote-by-mail law, finding statehouse Democrats didn’t violate the Constitution or federal law when extending the window for counting such ballots, even if they are received up to two weeks after Election Day.
The suit dates to a May 2022 filing in Chicago federal court by three plaintiffs: U.S. Rep. Michael Bost, of downstate Jackson County, currently representing Illinois’ 12th Congressional District; Laura Pollastrini, of west suburban Kane County, then Republican State Central Committeeperson for the 14th Congressional District; and Susan Sweeney, of Cook County, who pledged to seek appointment as a presidential elector in 2024.
The gist of the complaint was that the extended window to count mail-in ballots essentially meant Illinois was illegally conducting federal elections by counting ballots received after Election Day. They argued the fact ballots could be counted even without proper postmarks forced them to expend extra time and resources campaigning and monitoring voting after Election Day.
In August, attorneys with the U.S. Department of Justice filed a brief supporting the 2020 Illinois law enacting the change.
“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 its brief, styled as a “statement of interest.”
In an opinion filed July 26, U.S. District Judge John Kness granted the Illinois State Board of Elections’ motion to dismiss the complaint. Kness first said the plaintiffs lacked standing to sue, by failing to sufficiently allege legal harm, and then explained the Eleventh Amendment would’ve barred the litigation even with the standing bar cleared.
Kness agreed with the ISBE that the plaintiffs didn’t allege they suffered specific harm different from any other Illinois voter. He said allegations the state law conflicts with the Constitution “amount to a ‘general grievance about governance’ that is insufficient to confer standing.” He also agreed a claim the mail-in votes counted after Election Day dilute those cast on or before falls short on similar grounds.
“A vote dilution claim under the Equal Protection Clause is about votes being weighted differently to the disadvantage of an identifiable group,” Kness wrote. “That is, a vote dilution claim is about certain votes being given less value than others, and such claims typically arise in the context of redistricting disputes. Federal courts have thus declined to apply the doctrine of vote dilution to voter fraud allegations, because an increase in the pool of voters generally does not constitute vote dilution.”
The plaintiffs argued a dismissal would prevent future challenges to “gross abuses of state power,” Kness wrote, proposing a situation in which Illinois let French citizens vote in federal elections. But he said that “hypothetical depends on evidence of illegal votes actually being cast,” which he noted the present complaint lacks.
Regarding Bost’s claim his campaign had to spend two additional weeks courting votes, Kness said that claim might be more concrete than the other allegations but Bost still failed to show how he is prejudiced differently from any other candidate for federal office running in Illinois. Further, he said Bost’s assertions were speculative.
“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,” Kness wrote.
Despite Illinois law allowing mail-in ballots to be received without postmarks or any other independent verification that they were actually mailed before or on Election Day, Kness added: “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.”
Kness also said the Eleventh Amendment bars most federal lawsuits against states and state agencies. The plaintiffs attempted to invoke the “plan of Convention” exception to that immunity, appropriate for instances when a state interferes with the federal government’s exercise of Constitutional power, but Kness said nothing in the challenged Illinois law runs afoul of “the constitutional command that states determine the time, place, and manner of elections.”
Even if he had ruled in plaintiffs’ favor on standing and Eleventh Amendment immunity, Kness wrote, he still would’ve determined they failed to request deliverable relief.
“If a ballot is not postmarked, it must be certified on or before Election Day to be counted,” Kness wrote. “Nowhere in the text does the statute allow ballots postmarked or certified after Election Day to be counted. The question, then, is whether ballots that are postmarked or certified on or before Election Day, but are not received by Election Day, should be disregarded as untimely under federal law.”
Kness further said “there is a notable lack of federal law governing the timeliness of mail-in ballots” and noted at least two other states have a 14-day window, while others have seven- or 10-day periods. That points to Illinois’ law being harmonious with federal law, Kness said, adding that “despite these ballot receipt deadline statutes being in place for many years in many states, Congress has never stepped in and altered the rules.”
Because the chief reason for dismissal was lack of jurisdiction based on standing, Kness wrote, the plaintiffs may amend their complaint to correct those deficiencies.
Plaintiffs are represented by 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.
Kness has served on the federal bench since 2020. He was nominated by former President Donald Trump.