The U.S. Supreme Court may yet take up the question of whether a southern Illinois Republican congressman can revive their legal action challenging Illinois' vote-by-mail law, which asserts state Democratic lawmakers have violated the Constitution and federal law by allowing mail-in ballots to be counted up to two weeks after Election Day.
On Jan. 2, the Supreme Court directed Illinois Attorney General Kwame Raoul to respond to the petition filed by U.S. Rep. Michael Bost and his co-plaintiffs asking the high court for the chance to undo an appellate court's ruling dismissing their lawsuit seeking to strike down the state election law.
Bost, of downstate Jackson County, had filed the petition with the U.S. Supreme Court on Nov. 19, 2024, about five months after a divided judicial panel of the U.S. Seventh Circuit Court of Appeals had sided with the state in shutting down the lawsuit.
According to the online docket for the case at the U.S. Supreme Court, the state has until Feb. 3 to respond to Bost's appeal petition.
The petition centers on the question of whether Bost, as a sitting elected official, should have the right under cases decided in the past to challenge state election rules he believes are illegal.
Bost 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, including U.S. House of Representatives, Senate or President.
The lawsuit took aim at the law enacted by Illinois' Democratic legislative supermajority in Springfield 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 election rules and processes in Illinois. Particularly, the lawsuit takes aim at new rules requiring election authorities to count all mail-in ballots received 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 claims to otherwise require.
The lawsuit specifically claims Illinois' vote-by-mail regime clashes with federal law, which establishes an official Election Day for federal offices.
Under that federal law, votes must be cast by "the first Tuesday after the first Monday in November of every even-numbered year."
However, the lawsuit says, the Illinois vote-by-mail rules improperly turn "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 by counting questionable or illegitimate ballots.
The plaintiffs have asserted Illinois' balloting system could allow potentially hundreds of thousands of otherwise invalid votes to sway close election contests.
The voters in the lawsuit have argued the law improperly "dilutes" the value of their votes and those case by others on or before Election Day, in keeping with federal 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.
In court, U.S. District Judge John F. Kness, an appointee of President Donald Trump during his first term in office, ruled against Bost and the voters.
In his ruling, Kness did not address the actual claims of the lawsuit, but rather found the plaintiffs lacked standing to sue because they couldn't prove they were individually harmed by the extended mail-in vote counting period.
On appeal, the Seventh Circuit panel also didn't address the merits of the claim from Bost and his co-plaintiffs concerning whether Illinois' vote-by-mail rules are legal.
Seventh Circuit Judge Michael Y. Scudder dissented from the ruling.
They rejected the vote "dilution" claims, saying that alone isn't enough to allow voters to sue to force Illinois to follow federal election law.
They also rejected Bost's claims that the law has improperly forced him and his campaign to spend significantly more time and money to "poll watch" and ensure ballots are being counted legally.
In dissent, Scudder said Bost's claims of financial harm should be significant enough to allow his claims to be heard in court.
In his petition to the Supreme Court, Bost said Kness and the Seventh Circuit majority wrongly brushed off his claims of harm.
"Until recently, it was axiomatic that candidates had standing to challenge these regulations," wrote Bost's attorneys.
"Indeed, 'it’s hard to imagine anyone who has a more particularized injury than the candidate has.' … That is because a candidate who 'pours money and sweat into a campaign, who spends time away from her job and family to traverse the campaign trail, and who puts her name on a ballot has an undeniably different - and more particularized - interest in the lawfulness of the election' than 'some random voter.'
"... This petition presents an opportunity for the Court to provide lower courts and litigants much needed guidance on candidate standing, outside of the high-stakes, emergency, post-election litigation where these issues commonly arise."
Bost's petition drew support from a collection of mostly conservative policy organizations, who filed five separate briefs all urging the Supreme Court to take up the question and undo what they described as the harmful effects of the Seventh Circuit ruling.
They particularly argued the Seventh Circuit ruling, in conjunction with other court rulings since 2020, has resulted in an "unwarranted narrowing of candidates' ability to challenge electoral regulations," not in keeping with past Supreme Court holdings.
After Bost filed his petition at the Supreme Court, Raoul's office initially waived their right to respond to the petition. Raoul's office is representing the Illinois State Board of Elections, which is the nominal defendant in the case.
However, the Supreme Court indicated it would distribute the petition for discussion at its conference on Jan. 10.
And the court then "requested" a response to the petition.
Bost is represented in the action by attorneys from conservative legal advocacy organization, Judicial Watch, and local attorney Christine Svenson, of Svenson Law Offices.
In a statement announcing the filing of the Supreme Court petition, Judicial Watch President Tom Fitton said: “It is a scandal that the courts would deny a federal candidate the ability to challenge an election provision that could lead to illegal votes being cast and counted.
“Illinois’ 14-day extension of Election Day thwarts federal law, violates the civil rights of voters, and invites fraud. The Supreme Court should take up this case and reaffirm the right of federal candidates to challenge unlawful election schemes.”