Appeals court skeptical of Mike Bost’s case to stop ballot counts after Election Day

CHICAGO – A panel of federal appellate judges on Thursday seemed skeptical of legal arguments made on behalf of Republican U.S. Rep. Mike Bost, who claims Illinois’ law allowing counting of mail-in ballots for two weeks after an election is in violation of federal law.

Bost’s late 2022 lawsuit was filed with help from a conservative group that assisted former President Donald Trump’s efforts to block the counting of mail-in ballots after Election Day 2020. The suit named the Illinois State Board of Elections, seeking the court’s intervention against a 2015 state law that allows vote-by-mail ballots to be counted if they’re received within 14 days of Election Day so long as they were postmarked on or before Election Day.

A lower court judge dismissed Bost’s case last summer, ruling the state’s law governing mail-in ballots is in step with federal law. But Bost appealed, leading to Thursday’s oral arguments in front of the 7th Circuit Court of Appeals in Chicago.

The arguments happened to be scheduled nine days after Illinois’ 2024 primary election, in which the race for Cook County state’s attorney was still too close to call Thursday as local election authorities were still counting mail-in ballots. While that scenario didn’t come up in front of the panel, Bost’s own recent electoral history did.

“Right now, he’s ahead in the count,” Bost’s attorney Russell Nobile said of his client’s close race against Republican challenger, former state Sen. Darren Bailey, R-Xenia, the failed GOP candidate for governor in 2022. The Associated Press called the race for Bost the morning after the March 19 primary when Bost was 2,590 votes ahead of Bailey.

“He has spent nine days monitoring late arrival ballots, calling districts, checking the internet, having his staff do it, to make sure that the victory that is believed he received on election night is not taken away by late-arriving ballots,” Nobile said.

In dismissing the case last summer, U.S. District Judge John Kness rejected Bost’s arguments that he had the right to sue over Illinois’ law allowing ballots to be counted for two weeks after Election Day. Bost claimed the law forced him to spend significant resources on his campaign for that same time period.

“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.”

Alex Hemmer, who argued on behalf of the Board of Elections, sought to discredit any argument that Bost’s lawsuit was on behalf of voters who were “injured” by the law because the continued counting of mail-in ballots for two weeks after Election Day would “dilute” votes made on or before Election Day.

“Voters aren’t injured by a law that makes it easier for voters to cast ballots,” Hemmer told the panel.

“He has spent nine days monitoring late arrival ballots, calling districts, checking the internet, having his staff do it, to make sure that the victory that is believed he received on election night is not taken away by late-arriving ballots.”

—  Russell Nobile, U.S. Rep. Mike Bost’s attorney

Bost had also made an originalist argument about Illinois’ ballot counting law not comporting to the nearly two-century-old law that set Election Day as the first Tuesday in November. But Hemmer cut that argument down, pointing out that the nation’s first mass use of absentee voting occurred during the Civil War, when soldiers’ ballots were counted “days or weeks” after Election Day.

“The historical record does not support this argument at all,” he said. “If anything, it tends to refute it,” he said.

Judge Michael Scudder pointed out that many states also allow for the counting of mail-in ballots after Election Day, and pointed out that Congress has long allowed ballots from overseas military personnel and has updated federal law recently enough to have considered the existence and impact of other state laws.

“It seems odd, though, in the military statutes, that Congress would acknowledge and respect the fact that some states have receipt deadlines that postdate Election Day,” Scudder said. “And that in the text of the federal statutes, Congress would allow those to be respected if, at the same time, all of the state law was categorically preempted.”

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of newspapers, radio and TV stations statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.