CHICAGO — A pending federal lawsuit, brought by a downstate Republican congressman and two GOP officials, could invalidate potentially tens of thousands of mailed general election ballots that are cast by Illinois voters, including military members serving overseas, and postmarked on or before this coming Election Day but received by election authorities afterward.
The lawsuit, led by four-term U.S. Rep. Mike Bost, echoes some of the rejected court challenges filed by former President Donald Trump in other states in the lead-up to the 2020 presidential election that he falsely contends was stolen. Bost is being assisted in the suit by a nonprofit conservative advocacy organization that has backed a number of Trump’s efforts.
At issue is a 2015 state law that allows vote-by-mail ballots to be counted if they are received within 14 days after Election Day if they were postmarked on or before the final day of voting. If the ballots lack a postmark or if it is illegible, ballots can be counted if the voter dated and signed the ballot on or before Election Day.
Election Day is Nov. 8 and the 14-day time period, in which provisional votes also are considered, ends Nov. 22. The suit seeks to have no vote-by-mail ballots counted that are received after Nov. 8.
Bost filed the lawsuit along with Laura Pollastrini, a member of the Republican State Central Committee from Kane County, and Susan Sweeney, who was appointed a Trump elector from Illinois in 2020. Sweeney and Pollastrini are seeking to become GOP presidential electors in the 2024 election.
The lawsuit contends the Illinois law violates federal law that establishes the first Tuesday after the first Monday in November of even-numbered years as Election Day for federal elections. The suit further contends that the Illinois law subjects Bost to harm, including expenses for post-Election Day poll watchers and the possibility mail-in ballots counted during the 14-day period “dilutes” “timely” votes cast up to and including Election Day.
The lawsuit was filed by the conservative legal organization Judicial Watch, which was among the groups that assisted Trump’s efforts to try to stop the counting of mail-in ballots after Election Day 2020. The group stated the lawsuit is an effort to ensure the integrity of elections as well as protect the rights of Bost and other registered voters.
“It’s Election Day, not election week or month,” Tom Fitton, the head of the conservative group, told The New York Times of the 2020 count, a claim he has repeated in objecting to the Illinois law.
The Bost suit is among more than 100 lawsuits that The Associated Press has tracked that have been filed around the Nov. 8 elections. Nationally, the legal challenges, filed largely by Republicans, go after rules for mail-in voting, early voting, voter access, voting machines, voting registration, the counting of mismarked absentee ballots and access for partisan poll watchers, the AP reported.
In defending the state law, the Illinois attorney general’s office, headed by Democrat Kwame Raoul, counters that the Illinois statute is “crucial to ensuring the voting rights of millions of Illinoisans who avail themselves of the right to vote by mail.
“Without it, those voters risk disenfranchisement, despite timely casting their ballots, due to delayed mail delivery and/or inconsistent postmarking practices,” the attorney general’s office said.
The suit, filed in May in U.S. District Court in Chicago, remains pending before Judge John Kness, with Election Day only days away.
In the 2020 presidential election — which traditionally has heavier participation than midterm elections and which that year was conducted amid pandemic restrictions that made vote-by-mail a health-safety option — one-third of the nearly 6.1 million votes cast were mail-in ballots. Of that, an estimated 266,417 mailed ballots were received and counted after Election Day, representing 4.4% of all votes cast in Illinois in 2020.
This year, while vote-by-mail has grown in popularity, the lack of pandemic restrictions and the historical nature of midterm turnout makes the number of mail-in ballots an open question, as well as how many of those ballots will be delivered after Election Day.
As of Oct. 26, nearly 820,000 vote-by-mail ballots had been requested by voters statewide and more than 300,000 had already been returned, Illinois State Board of Elections figures show.
In the 2018 midterm, mail-in votes overall amounted to slightly more than 9% of the more than 4.6 million ballots cast, the state election board said.
The state attorney general’s office said Illinois is among 18 states that have an extended ballot-receipt deadline beyond Election Day.
Bost’s lawsuit has drawn the attention of the civil rights division of the U.S. Department of Justice, which filed a statement with the court on behalf of Attorney General Merrick Garland.
“Permitting the counting of otherwise valid ballots cast by election day even though they are received thereafter does not violate federal statutes setting the day for federal elections,” the Justice Department wrote in the statement. “This practice not only complies with federal law but can be vital in ensuring that military and overseas voters are able to exercise their right to vote.”
The Justice Department noted that since 2000, the inability of states to meet deadlines for sending out military and overseas ballots resulted in court orders or settlements that extended the vote-counting deadline past Election Day in 29 cases, including extending Illinois’ post-Election Day deadline twice in the last 12 years.
Bost served as a Marine from 1979 to 1982. He contends in the suit that “late-arriving, deficient ballots exacerbate the expenses my campaign incurs.”
“I risk injury because my margin of victory in my election may be reduced by untimely and illegal ballots. Election results are the best measure for my constituents and me to evaluate the public’s opinion about my effectiveness as congressman,” Bost said in an exhibit filed with his lawsuit.
“A diminished margin of victory will lead to the public perception that my constituents have concerns about my job performance as the representative,” he said in the filing. “Negative and positive perceptions about my effectiveness influence numerous third parties such as future voters, congressional leadership, donors and potential political opponents.”
The attorney general’s office contends that Bost and the other plaintiffs “seek to disenfranchise voters who avail themselves of the ability to lawfully vote by mail under the guise of attending to vindicate plaintiff’s First Amendment rights.”
Bost and the others lack standing to file the case because “they simply express disagreement with statutes passed by the Illinois legislature and ask this court to override the state legislature’s decisions,” the attorney general’s office said.
But Bost’s attorneys said the attorney general’s claims of disenfranchisement were exaggerated.
“Were voters disenfranchised during the Colonial, Early Republic, Civil War, Reconstruction, and 20th Century eras when states universally required ballot receipt on or before Election Day?” Bost’s attorneys said.
“Plaintiffs do not seek to set any election aside or to reject any ballots already cast. And plaintiffs only seek to enjoin the future counting of unlawful ballots — not all ballots cast in a past election,” Bost’s attorneys wrote. “No one is ‘disenfranchised’ if unlawful ballots received after Election Day are not counted.”
Bost’s attorneys cited efforts by Trump’s legal team in contending the state attorney general’s defense “primarily relies on trial court rulings from truncated proceedings involving emergency relief related to the highly contentious 2020 election.” They noted that “many of those rulings were not appealed, presumably because of time frame constraints caused by the impending election.”
“To the extent any of these district court rulings are still good law, Plaintiffs respectfully submit they were wrongly decided, and that consideration should be given to the unusual context in which those cases arose,” the Bost lawsuit alleges.
