As the Republican National Committee embarks on a strategy to encourage mail-in-voting — a method strongly opposed in the past by former President Donald Trump — it also is backing an appeal in a federal lawsuit seeking to overturn an Illinois law that allows mail-in ballots cast on or before Election Day to be counted up to 14 days afterward.
The RNC, which is promoting a “bank the vote” program to get Republicans to pledge to vote by mail, joined with the National Republican Congressional Committee in filing a court brief in the 7th U.S. Circuit Court of Appeals in support of the effort to nullify ballots received by Illinois election authorities after Election Day.
U.S. District Judge John Kness in July dismissed the lawsuit, which was brought by five-term U.S. Rep. Mike Bost of Murphysboro and two prospective 2024 GOP presidential electors. Kness ruled the three plaintiffs lacked standing to sue the State Board of Elections over the law, which allows 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.
But Kness went even further, ruling that 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,” the judge ruled.
Bost, who is facing a March 19 Republican primary challenge from last year’s unsuccessful GOP candidate for governor, former state Sen. Darren Bailey of Xenia, appealed the ruling in August and briefs from both sides in the case were filed Friday. Bost’s candidacy is backed by the National Republican Congressional Committee.
The case could have far-reaching consequences. During the 2020 pandemic- year general election, when mail-in voting increased, as many as 266,417 votes were counted in the two-week period after Election Day, according to court documents.
Democrats have long been successful in organizing and executing a mail-in voting strategy in Illinois and other states. Trump, who has a huge lead in the race for the 2024 Republican presidential nomination, has decried mail-in voting and encouraged in-person voting on Election Day.
“There is no way you can go through a mail-in vote without massive cheating,” Trump said in an August 2020 interview with Axios.
But the RNC, joined by many backers of the former president, is now promoting mail-in voting nationally to better compete against Democrats. As the RNC filed its court brief to end the counting of late arriving mail-in ballots Friday, the Illinois GOP held a “Bank Your Vote” gala fundraiser in Rosemont to encourage mail-in voting that featured U.S. Sen. John Kennedy of Louisiana.
Briefs in support of upholding the Illinois law were filed by the Democratic Party of Illinois, the civil rights division of the U.S. Department of Justice and 18 states that have similar laws for counting ballots post-Election Day.
The state Democratic Party said the consequences of a successful appeal would be “widespread and severe.”
“Illinoisans’ ability to successfully use mail ballots to exercise their fundamental right to vote would largely depend on the ability of the Postal Service to timely deliver them — a troubling proposition in a time when significant delivery delays are common,” the Democratic brief said.
State Rep. Elizabeth “Lisa” Hernandez of Cicero, the state Democratic chair, questioned the incongruous message of Republicans pushing for mail-in voting at they same time they’re seeking to curtail its results.
“It is fundamentally un-American and antidemocratic for Republicans to continue their attempts to silence Illinoisans when the will of votes is not on their side,” Hernandez said in a statement.
Justice Watch, which joined unsuccessful efforts by Trump to stop vote counting in his 2020 loss to President Joe Biden, acknowledged in its appeal that Bost and the Republican 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.”
In his ruling, Kness, who was appointed to the federal bench by Trump in 2019, rejected Bost’s complaint that the law forced him to spend significant resources on his campaign for an additional two weeks after Election Day.
“It is mere conjecture that, if congressman Bost does not spend the time and resources to confer with his staff and watch the results roll in, his risk of losing the election will increase,” the judge wrote. “Under the letter of Illinois law, all votes must be cast by Election Day, so congressman Bost’s electoral fate is sealed at midnight on Election Day, regardless of the resources he expends after the fact.”
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. The U.S. Department of Justice had issued a “statement of interest” in support of the state of Illinois, in part citing protections for military members to have their votes counted.
In both his lawsuit and appeal, Bost contended 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.
Bost has alleged that late 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.”
While facing a challenge from Bailey this year, Bost faced only token primary opposition in 2018 and no primary opposition in 2014 when he was first elected to Congress as well as in 2016, 2020 and 2022. Since entering Congress, he has easily won reelection with large margins in his Republican-rich downstate district.
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