Federal appeals judges seem wary of GOP attempt to block part of Illinois’ vote-by-mail law

Ashlee Rezin/Sun-Times

A federal appeals panel in Chicago signaled skepticism toward Republican efforts to scuttle an Illinois law that allows for mail-in ballots to be counted up to two weeks after an election.

The 7th Circuit Court of Appeals heard arguments Thursday in the case brought, in part, by downstate Republican U.S. Rep. Mike Bost, who prevailed last week with backing from former President Donald Trump in a closely watched primary against former Republican gubernatorial nominee Darren Bailey.

Two other Republican co-plaintiffs from the Chicago area have joined Bost in the case that carries potentially significant election-year ramifications.

Nationally, Trump has called for an end to mail-in voting in presidential elections, alleging the process is “totally corrupt,” though Republican affiliates around the country, including the Illinois Republican Party, continue to encourage voters to cast mail-in ballots.

In 2022, Bost and the two other Republican plaintiffs sued the State Board of Elections and its executive director in a bid to overturn a state election law that has been on the books for years. The law gives election authorities 14 days after election day to count mail-in ballots, as long as they are postmarked on or before election day, and has been in place since 2015.

Bost and his fellow litigants allege the law violates the U.S. Constitution and federal law by extending election day and diluting the value of their votes through “illegal ballots” received and counted after election day.

Last year, U.S. District Judge John Kness, an appointee of former Republican President Donald Trump, rejected their arguments, saying they had not demonstrated “concrete, particularized or imminent” damages from the law and that states are afforded great latitude in picking the times, places and manner of elections.

During arguments Thursday before the appeals panel, the plaintiffs’ lawyer, Russell Nobile, focused on Bost’s election against Bailey. Even though the Associated Press declared Bost the winner of the 51-to-49% contest, Nobile argued mail-in ballots had potential to flip that outcome.

“We can illustrate the injuries that my client, Congressman Bost, is suffering right now,” Nobile told the three-judge panel composed of two Trump appointees and one appointee of Democratic President Joe Biden.

“He's ahead in the count. He has spent nine days monitoring late-arriving ballots, calling districts, checking the internet, having his staff do it, to make sure that the victory that he believed that he received on election night is not taken away by late-arriving ballots,” Nobile said.

Appellate Judge John Z. Lee, the Biden appointee, questioned whether Bost has actually suffered harm from mail-in ballots being counted after election day, pointing to his lopsided win in the 2022 election that nonetheless included those ballots.

“It appears that in 2022, he got 75% of the votes…So Mr. Bost, to his credit, won by a wide margin,” Lee said. “Is there anything to think that had whatever votes arrived…for counting after election day would have had any impact on that outcome?”

Nobile acknowledged in that election and in 2020, mail-in ballots didn’t change the outcome in Bost’s elections.

Another judge on the panel, Michael Scudder, noted how Congress specifically passed legislation respecting states’ post-election ballot counting when it comes to military members stationed abroad, but has never chosen to explicitly prohibit counting ballots after election day.

“What do you make of that history?” Scudder asked Nobile.

“It's just really impossible to get election statutory stuff through Congress,” Nobile answered. “The failure to act on it may reflect different issues going on at the time.”

Scudder, a Trump appointee, revisited the military voters’ ballot issue several times during the hearing, including with Justice Department lawyer Noah Bokat-Lindell, who argued on behalf of Illinois’ law. Scudder said Congress’ respect for states’ post-election ballot counting standards for overseas military members seems to undercut any contention that all votes must be counted by election day.

“It seems very odd for the same…United States Congress to do that and in a way that would be at odds with the election statutes to allow that in the overseas voter enlisted service member context,” the judge said.

“That’s absolutely right, your honor,” Bokat-Lindell answered.

The issue of post-election ballot-counting has flared intensely at the national and local levels.

In Cook County, for example, a victor still has not been called in the Democratic Cook County state’s attorney’s race nine days after the March 19 Illinois primary. The Associated Press still has not called a winner between Eileen O’Neill Burke and Clayton Harris because mail-in and provisional ballots continue to be counted.

Dave McKinney covers Illinois politics for WBEZ and is the former long-time Springfield bureau chief for the Chicago Sun-Times.