The conservative group Judicial Watch is asking the U.S. Supreme Court to review a case filed by U.S. Rep. Mike Bost, R-Murphysboro, challenging Illinois’ law allowing mail-in ballots to be counted 14 days after the election.
Under Illinois law, ballots postmarked by Election Day can be counted as late as 14 days after the election as they arrive at local election authorities. Bost’s case argued that Illinois’ law violates the federal law establishing Election Day by allowing votes to arrive and be counted for two weeks after the polls close. Two Illinois delegates at the Republican National Convention for President-elect Donald Trump, Laura Pollastrini and Susan Sweeney, are also part of Bost’s lawsuit.
Two lower courts have already ruled against Bost’s 2022 case against the Illinois State Board of Elections. The U.S. 7th Circuit Court of Appeals in Chicago ruled in August Bost lacked standing to sue in the case.
But the legal fight is not over for Judicial Watch, which filed an appeal to the U.S. Supreme Court on Nov. 19 asking the court to take up the case in hopes justices might strike down Illinois’ law.
“Specific holdings in this case will tend to make the next electoral cycle as fraught as 2020,” the group argues.
The filing cited numerous cases from 2020 challenging election laws and outcomes, some of which Judicial Watch was a part of, in efforts to block the counting of mail-in ballots.
Many other states also allow late-arriving mail-in ballots to be counted in the days after the election. Federal law regulates counting military ballots.
Judicial Watch’s central argument to the U.S. Supreme Court is that the court of appeals in Chicago erred in its ruling that Bost lacked standing. The court ruled it was Bost’s “choice” to spend campaign resources to monitor post-election counting while on his way to a large victory. Bost argued he suffered damages by extending his campaign’s operation for two weeks beyond the election to monitor counting.
The appeals court made a “major error by treating candidates’ likely electoral prospects as relevant to the standing analysis, where a challenged statute inflicted real costs on their campaigns,” Judicial Watch argued.
“Apparently, judges in pre-election cases must now try to predict electoral outcomes,” the group said.
A State Board of Elections spokesperson declined to comment on pending litigation.
Bost, who has represented the 12th Congressional District in southern Illinois since 2015, was reelected this month with nearly 75% of the vote, according to preliminary results. Judicial Watch said it worried “illegal votes could diminish his margin of victory” and make it appear that he is growing more unpopular with his constituents. Bost himself argued his races have seen more mail-in ballots in recent campaigns.
Judicial Watch also argued Bost filed this case to preemptively correct perceived issues with the vote by mail law, which they believe gives him standing in federal court cases and is something the nation’s high court should be interested in addressing.
The group called Bost’s challenge “an ideal vehicle” for the court to rule on vote by mail. “The need to have that issue resolved, and outside of emergency litigation, is great,” the group said.
Judicial Watch also pointed to largely unfounded concerns about the reliability of elections because of late counting of mail in ballots as another reason the U.S. Supreme Court needs to get involved.
“It is important that courts hear and resolve well-pleaded challenges by federal candidates to state time, place and manner regulations affecting their elections,” the group said. “Aside from the interests of the litigants, it is important that the public conclude that elections are run in an orderly, not arbitrary, fashion.”
Republicans in Illinois and at the national level embraced mail-in voting in the 2024 election cycle after pushing back against it in recent years. The Illinois Republican Party joined the Republican National Committee’s “bank your vote” initiative, which encouraged reliable Republican voters to vote early or by mail so campaign resources could be focused on turning out people on the fence about voting or who were undecided.
Capitol News Illinois is a nonprofit, nonpartisan news service that distributes state government coverage to hundreds of news outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.
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