“The Constitution is clear: state legislatures set the rules for states in conducting their elections.”
So said U.S. Rep. Mike Bost, R-Murphysboro, on Jan. 7, 2021. He expressed a similar sentiment on Aug. 24: “The Supreme Court has ruled that the U.S. Constitution provides each state the right to regulate their own elections, not the federal government. This is a fundamental principle of federalism.”
Last week, the same Mike Bost became one of three plaintiffs in a federal lawsuit asking a judge to declare recent Illinois Election Code amendments violate their Constitutional rights and to issue an injunction keeping the state from enforcing its own election law.
“Under federal law, the first Tuesday after the first Monday in November of every even-numbered year is election day for federal elections,” according to the complaint. “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.”
According to the complaint, Illinois accepted 266,417 vote-by-mail ballots after Election Day 2020, which plaintiffs say is 4.4% of the statewide total.
The other plaintiffs are Kane County’s Laura Pollastrini, the 14th Congressional District GOP committeewoman now running for the same position in the 11th, and Cook County’s Susan Sweeney, a 2020 Republican presidential elector aspiring to be so again in 2024.
Their legal theory is that because Illinois counts votes allegedly illegal under federal law, the power of legally cast ballots is diluted, violating First and 14th Amendment rights. Furthermore, because all plaintiffs are candidates in federal elections, they say they’re forced “to spend money, devote time and otherwise injuriously rely on unlawful provisions of state law in organizing, funding and running their campaigns.”
The Jan. 7 Bost quote comes from a release explaining why he voted against certifying the 2020 Electoral College votes from Pennsylvania and Arizona, “because, in my belief, they failed to meet that constitutional standard.”
The Aug. 24 quote references his House vote against Democrats’ legislation, adding: “We can all agree on the importance of ensuring the integrity of our elections, but what House Democrats want is to nationalize our state and local elections and give unelected Washington bureaucrats power over state election laws.”
Like most politicians who champion states’ rights until they disagree with how a state exercises those rights, Bost is threading a specific legal needle. He’s not saying Illinois can’t set its own election rules, he just thinks one of those rules can’t be squared with the U.S. Constitution.
As with anyone, Bost, Pollastrini and Sweeney deserve their day in court. But no matter the outcome, absent new federal legislation, voting rights litigation will remain the norm, here and nationwide.