A divided federal appeals panel is the latest to turn aside an attempt by a Republican congressman and Republican voters to upend Illinois' vote-by-mail law, saying they can't show they have actually been harmed by a state law allowing mail-in ballots to be received up to two weeks after Election Day.
A dissenting judge, however, said his fellow judges were too quick to dismiss the complaints from at least the congressman that the law will force his campaign, at a minimum, to dedicate significant resources to continue to monitor vote counting for accuracy and to watch for possible vote fraud up to 14 days after federal law says the election should be over.
U.S. Rep. Michael J. Bost, a Republican, of downstate Jackson County, and two other Illinois Republicans filed suit in the weeks leading up to the November 2022 general election, seeking a court order blocking Illinois from counting mail-in ballots received after Election Day, if those ballots included votes for federal offices.
U.S. Rep. Michael Bost
| Illinois House District 12
The lawsuit took aim at the law enacted by the state's Democratic legislative supermajority and Gov. JB Pritzker in 2020 which used the Covid pandemic to greatly expand mail-in voting in Illinois. The lawsuit claims Democrats improperly rewrote the voting rulings and processes in Illinois, particularly by requiring election authorities to count all ballots received by mail up to 14 days after Election Day. The rules further require election officials to accept those ballots even if there is no proof they were actually mailed by Election Day, as the law ostensibly requires.
The lawsuit claims Illinois' mail-in balloting system clashes with federal law which establishes an official Election Day for federal offices, including for President and Congress.
Under that federal law, votes must be cast by "the first Tuesday after the first Monday in November of every even-numbered year." In 2022, that date was Nov. 8. In 2024, that date is Nov. 5.
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 dominant parties and powerful 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 authority to simply extend the deadline for receiving ballots beyond Election Day for federal contests, potentially allowing hundreds of thousands of otherwise invalid votes to sway close contests.
The two voters in the lawsuit say this illegally "dilutes" the value of their votes and those cast by others on or before Election Day, following the law.
Illinois state election officials, with the support of the Illinois Democratic Party and the U.S. Justice Department, under the administration of Democratic President Joe Biden, have sought to dismiss the lawsuit, arguing Illinois law doesn't conflict with federal law because the Illinois law still requires all ballots to be mailed on or before Election Day, even if the law allows votes to be counted without any independent proof they actually were mailed at all.
Illinois Democrats have noted in court filings that striking down the law would make it more difficult for Democrats to win elections, as Democrats disproportionately vote by mail, compared to Republicans and other voters.
In court, U.S. District Judge John F. Kness, an appointee of former President Donald Trump, sided with Democrats and the state, and dismissed the lawsuit. Kness did not address the actual claims in the lawsuit, but rather agreed that the plaintiffs lacked standing to sue because they couldn't prove they were individually harmed by the extended mail-in vote counting period.
Bost and his fellow plaintiffs appealed to the U.S. Seventh Circuit Court of Appeals.
On Aug. 21, a three-judge panel from the Seventh Circuit ruled 2-1 in favor of the state and Democrats, upholding Kness' decision.
Circuit Judge Michael Y. Scudder dissented.
Lee was appointed to the court by President Biden. Brennan and Scudder were each appointed by Trump.
In the majority decision, Lee and Brennan also did not address the actual claims that Illinois' law conflicts with federal law.
Rather, they also agreed that Bost and his fellow plaintiffs lacked standing to sue.
They said the claims that the extended vote-counting period dilutes votes cast on Election Day cannot move forward, because the claims are too "general" and not specific enough.
"Indeed, at its core, Plaintiffs' complaint is that Illinois is disobeying federal election law," Lee wrote. "But an injury to an individual's right to have the government follow the law, without more, is a generalized grievance that cannot support standing 'no matter how sincere.'"
They also said it doesn't matter that the extra 14 days of vote counting would cause political parties and campaigns, like Bost's, to spend significant time and money on so-called "poll watching," in a bid to ensure ballots are being legally counted in their contests.
The majority noted Bost won his last election with 75% of the vote. So, they said, any harm he may claim to possibly suffer from the extended mail-in balloting is mere speculation.
"Plaintiffs are not spending resources to comply with the Illinois ballot receipt procedure or to satisfy some obligation it imposes on them," Lee wrote for the majority. "Rather they are electing to undertake expenditures to insure against a result that may or may not come. Such expenditures are not 'fairly traceable' to the Illinois ballot receipt procedure."
In dissent, Scudder said he agreed that the vote dilution claims should be tossed as too general.
But Scudder said Bost's claims are far more specific, and the harm to his campaign operation more real.
"According to the Panel, Bost's protracted poll watching is not a strategic necessity but instead an overreaction to a hypothetical possibility that is 'speculative at best': electoral defeat due to ballots received after Election Day that were improperly counted," Scudder wrote.
But, Scudder said, "... the application of the challenged government restriction in this case is a near certainty. There will be an election this November, Congressman Bost will incur staffing costs to monitor the full and complete ballot count, and Illinois law will require that that count extend for an additional two weeks after Election Day.
"What is speculative in Bost's case is not the application of the challenged statute but a risk unrelated to its enforcement: the risk of ballot irregularities swaying an election...
"Congressman Bost has asserted injuries sufficient to confer Article III standing by alleging that his longstanding election-monitoring efforts will incur extra financial costs this November due to Illinois's extended ballot-receipt deadline. As a sitting member of Congress in the midst of an ongoing reelection campaign, he is nothing close to a 'mere bystander' to the upcoming election or the allegation at the heart of this lawsuit. He is an active stakeholder who ought to be permitted to raise his claim in federal court."
Bost and his co-plaintiffs have been represented in the action by attorneys with the conservative legal advocacy organization, Judicial Watch, and local attorney Christine Svenson, of Svenson Law Offices.
Judicial Watch has brought a nearly identical action against the state of Mississippi, claiming that state's law extending the mail-in ballot receipt period by 5 days similarly violates federal law and dilutes voters' rights. That case is currently pending on appeal before the U.S. Fifth Circuit Court of Appeals.
Should the Fifth Circuit side with Judicial Watch, it would set up a so-called "circuit split," under which U.S. states would essentially operate under different interpretations of federal law. Such circuit splits often result in cases being taken up by the U.S. Supreme Court.
The Illinois state election officials are represented by the Illinois Attorney General’s office.