Judicial Watch: Federal Appeals Court Hearing in Lawsuit Challenging Illinois Counting Ballots up to Two Weeks after Election Day

(Washington, DC) – Judicial Watch announced today that an appellate oral argument is set for Thursday, March 28 in the U.S. Court of Appeals for the Seventh Circuit in the case filed on behalf of Congressman Mike Bost and two other registered Illinois voters to prevent state election officials from extending Election Day for 14 days beyond the date established by federal law (Rep.Michael J. Bost, Laura Pollastrini, and Susan Sweeney v. The Illinois State Board of Elections and Bernadette Matthews (No. 1:22-cv-02754, 23-2644)).

The lawsuit was filed on May 25, 2022.

In October 2022, Judge Kness rejected a motion by Democratic Party of Illinois to intervene as a defendant in Judicial Watch’s lawsuit challenging the Illinois election law permitting mail-in ballots to be received as long as two weeks after Election Day. Kness in July 2023 dismissed the case based upon lack of “standing.” The case is now in the Court of Appeals for the Seventh Circuit.

Federal law defines Election Day as the first Tuesday after the first Monday in November of every even-numbered year. The initial complaint states: “Despite Congress’ clear statement regarding a single national Election Day, Illinois has expanded Election Day by extending by 14 days the date for receipt and counting of vote-by-mail ballots.”

Judicial Watch points out to the Appeals Court that Illinois election law allows vote-by-mail ballots received up to 14 days after the polls close on Election Day to be counted as if they were cast and received on or before Election Day. Illinois law also provides that “[e]ven vote-by-mail ballots without postmarks shall be counted if received up to 14 calendar days after Election Day if the ballots are dated on or before Election Day.”

Judicial Watch’s brief also notes:

Plaintiffs allege that all ballots received after Election Day pursuant to the Illinois Receipt Deadline are illegal and invalid. These ballots are as invalid as if they were received one year after Election Day, because they violate the federal Election Day statutes. [Emphasis in original]

Judicial Watch argues that holding voting open for 14 days past Election Day violates the constitutional rights of voters and candidates:

Plaintiffs allege three claims. First, they claim Defendants’ receipt and counting of late, illegal ballots dilutes the value of Plaintiffs’ lawfully cast votes, thereby infringing on their right to vote under the First and Fourteenth Amendments … Second, Plaintiffs claim the Receipt Deadline injures them as federal candidates, infringing on their right to stand for office under the First and Fourteenth Amendments … Third, Plaintiffs claim the [14-day extension] violates their federal statutory rights …

Judicial Watch explains:

The Board … advised that the number of ballots received after Election Day through November 17, 2020, could materially affect the unofficial election results.

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[Illinois’ own data indicates that] Illinois received as many as 266,417 ballots during the period between November 3 (Election Day) and November 17, 2020 (Receipt Deadline) …. This tranche of ballots totaled as much as 4.4% of the total ballots cast in the 2020 election. The record includes unrebutted, contemporaneous statements by Defendants that this tranche could change electoral outcomes after Election Day.

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By counting untimely and illegal ballots received after Election Day and diluting Plaintiffs’ timely cast and received ballots, Defendants … are depriving Plaintiffs of rights protected under the First Amendment and 14th Amendment” and 42 U.S.C. § 1983.

The hearing will be held:

Date: Thursday, March 28, 2024

Time: 9:30 a.m. CT, 10:30 a.m. ET

Location: Everett McKinley Dirksen

219 S. Dearborn Street

Chicago, IL 60604

Audio of the hearing will be available here Court Of Appeals 7th Circuit – YouTube.

(Judicial Watch also separately just sued Illinois to force the state to clean up its voter rolls, as federal law requires.) Christine Svenson, Esq., of Svenson Law Offices in Palatine, Illinois, is assisting Judicial Watch with the lawsuit.

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