7th Circuit To Hear Republican Challenge to Illinois’ Mail-in Ballot Receipt Deadline
WASHINGTON, D.C. — The 7th U.S. Circuit Court of Appeals will hold oral argument on Thursday in a Republican lawsuit challenging an Illinois statute that allows mail-in ballots to be received and counted for up to two weeks after an election as long as they are postmarked or dated on or before Election Day.
Led by a GOP representative for the state’s 12th Congressional District, Michael Bost, the Republican plaintiffs allege that the state’s “extended” mail-in ballot receipt deadline effectively “expands” Election Day in violation of the U.S. Constitution and federal law, which requires states to hold Election Day on the Tuesday after the first Monday in November.
Bost and his Republican co-plaintiffs — who are represented by the right-wing legal group Judicial Watch — contend that the two-week receipt deadline for mail-in ballots burdens their right to vote by allowing “illegal ballots” to “dilute the value of timely ballots cast and received on or before Election Day.”
A Trump-appointed federal district court judge originally tossed out the lawsuit in July 2023, but the Republican plaintiffs appealed the dismissal to the 7th Circuit, where a three-judge panel will ultimately decide whether or not the lawsuit will move forward following Thursday’s oral argument. The members of the three-judge panel will not be known until oral argument commences.
In his 2023 order, district court Judge John Kness acknowledged that although federal law sets a “national standard” for Election Day, “states retain significant discretion—frequently exercised—to prescribe the times, places, and manner of conducting elections” under the Elections Clause of the U.S. Constitution. Kness added that the “[p]laintiffs’ votes…are not diluted by other valid, lawfully cast votes” as a result of the challenged deadline.
In defense of the state’s two-week post-election deadline, Illinois election officials previously argued in the district court that the law is “crucial to ensuring the voting rights of millions of Illinoisans” who rely on mail-in voting. Without it, they argued, voters who cast ballots by mail could be put at risk of disenfranchisement due to factors beyond their control such as “delayed mail delivery and/or inconsistent postmarking practices.”
State election officials are now urging the 7th Circuit to affirm the district court’s dismissal, emphasizing that the lower court “correctly turned back plaintiffs’ novel and far-reaching challenge.” In court filings, the state defendants underscore the fact that post-Election Day receipt deadlines are commonplace across the country: Aside from Illinois, 18 other states and Washington D.C. accept and allow for the counting of mail-in ballots delivered after Election Day.
The lawsuit has even garnered the attention of the U.S. Department of Justice (DOJ), which filed a statement of interest in August 2022 to inform the court about the importance of post-Election Day mail-in ballot deadlines for military and overseas voters and will participate at Thursday’s argument as a “friend of the court” in support of the state defendants. According to the DOJ, military and overseas voters often face “logistical challenges that can…result from transporting ballots from overseas or distant locations across the country” and therefore rely on later ballot receipt deadlines to protect against disenfranchisement.
In an amicus brief submitted to the 7th Circuit, the Democratic Party of Illinois highlights how the state’s receipt deadline “guards against the disenfranchisement of all qualified voters, including Bost’s constituents and supporters.” On the other hand, Bost and the other Republican plaintiffs maintain that “all ballots received after Election Day pursuant to the Illinois Receipt Deadline are illegal and invalid,” but disclaim any “allegations relating to voter fraud.”
Although Thursday’s argument specifically concerns Illinois’ election law, the 7th Circuit’s eventual decision could reverberate around the country, where Republicans and other right-wing groups are seeking to curtail mail-in ballot receipt deadlines through new litigation.
Last month, a Trump-appointed federal judge dismissed a similar lawsuit brought by the right-wing Public Interest Legal Foundation challenging North Dakota’s mail-in ballot receipt deadline, which allows for the counting of mail-in ballots up to 13 days after Election Day. North Dakota’s top election official, Republican Secretary of State Michael Howe, applauded the ruling, calling it “a win for the rule of law in North Dakota and a win for our military and overseas voters.”
Meanwhile, a duo of recent federal lawsuits from the Republican National Committee and Libertarian Party of Mississippi mount nearly identical legal challenges in the Magnolia State, where mail-in ballots can be counted if they are received within five business days of the election.
You can listen to a live stream of the 7th Circuit oral argument here beginning at 10:30 a.m. EDT on March 28.