A federal appeals court this week upheld a lower court’s ruling that dismissed a lawsuit filed by a downstate Republican congressman and two GOP officials who wanted to block Illinois’ election authority from counting mail-in ballots cast on or before Election Day, but received up to two weeks afterward.
The 2-1 decision from the U.S. 7th Circuit Court of Appeals in Chicago affirms a ruling from U.S. District Judge John Kness last year that five-term U.S. Rep. Mike Bost of Murphysboro and two GOP presidential electors lacked standing to sue the State Board of Elections over a state law allowing mail-in ballots to be counted in the 14 days after Election Day as long as they were postmarked or certified on or before that day.
The suit was filed by the conservative legal organization Judicial Watch on behalf of Bost, Laura Pollastrini, a member of the Republican State Central Committee from Kane County, and Susan Sweeney of Park Ridge, who was appointed a Trump elector from Illinois in 2020. Pollastrini and Sweeney were also Trump delegates during July’s Republican National Convention in Milwaukee, where Trump was officially nominated as the GOP presidential candidate in November.
The suit, filed in 2022, contended the state law violated the federally established date for federal elections. It also alleged Bost was subjected to harm, including expenses for post-Election Day poll watchers and the possibility that mail-in ballots counted during the 14-day period “dilutes” votes “timely” cast up to and including Election Day.
But, in a decision filed Wednesday, the Court of Appeals rejected that argument.
“If we were to accept Plaintiffs’ premise that inclusion of these ballots would cause vote dilution, their votes would be diluted in the same way that every other vote cast in Illinois prior to Election Day would be diluted,” appellate judges John Lee and Michael Brennan said in affirming Kness’ ruling. “Thus, to the extent Plaintiffs would suffer any injury, it would be in a generalized manner and not ‘personal and individual’ to Plaintiffs, as the Supreme Court requires.”
Judge Michael Scudder dissented, defending Bost’s contention that the mail-in ballot law forced him to spend significant resources on his campaign.
“This change in law had an immediate impact on candidates’ election-monitoring operations. To ensure that all mail-in ballots were accurately tallied, Congressman Bost had to recruit, train, assign, and coordinate poll watchers and keep his headquarters open for an additional two weeks,” Scudder wrote. “This took substantial time, money, and resources, as Bost explained in his complaint and sworn declaration.”
Bost’s challenge to the law was somewhat ironic since he touts his past service in the Marines and the law was designed in part to meet federal voting requirements for military members serving overseas.
Aided in part by Trump’s endorsement, Bost in March defeated unsuccessful 2022 GOP gubernatorial candidate Darren Bailey of Xenia in a close race in the 34-county 12th Congressional District. Records show Bost has a Democratic opponent in the November election, though he’s almost assured victory in a solidly Republican district.
The lawsuit played out as Republicans have done an about-face on mail-in voting. Trump as a 2020 presidential candidate told voters not to trust mail-in voting. And Republican-aligned groups have been filing similar lawsuits to the one filed against Illinois’ elections board in other states.
But Illinois Republicans sought to encourage mail-in voting in the 2022 statewide elections in an effort to cut into Democratic numbers. And in 2024, the national Republican Party is embracing mail-in voting and Trump has endorsed the effort.
