The U.S. Supreme Court said Monday it would decide whether Republicans can challenge Illinois’ law that allows mail-in election ballots to be counted 14 days after Election Day, following lower federal courts’ previous dismissals of the GOP effort.
The lawsuit, led by downstate Republican U.S. Rep. Mike Bost, comes as the GOP and President Donald Trump have pushed for the recognition of a singular Election Day ballot count — most recently in a presidential executive order issued in March — despite state laws allowing ballots to be counted after Election Day as long as they are postmarked or voter-signed and certified on or before the election date.
In the Illinois case, both the U.S. District Court and the 7th U.S. Circuit Court of Appeals in Chicago ruled Bost and two presidential electors lacked legal standing when they challenged the law in May 2022. The courts did not decide on the merits of the case regarding the legality of post-Election Day ballot counting.
But in dismissing the lawsuit in July 2023, U.S. District Judge John Kness also wrote that he thought Illinois’ 2015 law complied with the U.S. Constitution as well as federal election law and does “not conflict with the federal mandate that Election Day be held on the Tuesday after the first Monday in November.”
“By counting only mail-in ballots postmarked on or before Election Day, the statute does not extend the day for casting votes in a federal election,” Kness, a Trump appointee, wrote.
In a 2-1 decision in August of last year, a three-judge panel of the 7th Circuit Court of Appeals sided with the lower court’s dismissal due to lack of standing.
Judicial Watch, a conservative legal organization that had worked unsuccessfully with Trump to stop post-Election Day ballot counting in the 2020 presidential race, is representing Bost and appealed last November to the U.S. Supreme Court.
The suit contended the state law violated the federally established date for federal elections. About 20 states have similar post-Election Day counting laws. But in its appeal to the nation’s highest court, Judicial Watch noted a federal appeals court in Louisiana last fall sided with Republicans and ruled Mississippi’s law allowing mail-in ballot counting after Election Day violated federal law.
Bost has argued the counting of “late, illegal ballots dilutes the value of” lawfully cast votes and infringes upon his right as a federal candidate to stand for office and that he faces added costs for poll watchers post Election Day.
Bost has also alleged that post-Election Day votes could reduce his margin of victory and that this “will lead to the public perception that my constituents have concerns about my job performance” and would “influence numerous third parties, such as future voters, Congressional leadership, donors and potential political opponents.”
Trump has made numerous false, misleading and unsupported claims about mail-in balloting, calling them in his 2020 election loss a “whole big scam.” But even as he argued against them, the Republican National Committee and the Illinois Republican Party ramped up efforts to get GOP voters to cast ballots by mail.
Still, the RNC and the National Republican Congressional Committee filed briefs in support of the election law challenge.
Tom Fitton, president of Judicial Watch, called it “an injustice that the courts would deny a federal candidate the ability to challenge an election provision” that they view illegal.
“The Supreme Court’s decision to hear this case is a critical opportunity to uphold federal law, protect voter rights, and ensure election integrity,” Fitton said. “Illinois’ 14-day extension of Election Day thwarts federal law, violates the civil rights of voters, and invites fraud.”
Yet in its appeal, Justice Watch said Bost and the GOP activists “do not allege voter fraud, nor do they allege that ballots were mailed after Election Day, contrary to Illinois law.” Instead, they allege ballots received after Election Day are illegal and are “as invalid as if they were received one year after Election Day.”
The U.S. Justice Department under President Joe Biden filed briefs in support of the Illinois law, in part because the statute was aimed at ensuring that late arriving votes cast overseas by U.S. military members would be counted.
Ironically, Bost, in his sixth House term from Murphysboro, is a Marine veteran who serves as chairman of the House Veterans’ Affairs Committee.
In a statement, Bost said he was “thankful” the U.S. Supreme Court agreed to review the ruling that he lacked standing to challenge the law.
“With the American people’s confidence in our elections at a discouraging low point, it’s more important than ever we work to restore their trust,” Bost said.
“I believe a big part of that effort is ensuring all votes are tallied by Election Day, not days or weeks later,” he said. “This is a critical moment for the rule of law and election integrity.”