Eye On Illinois: Absent Congressional action, election lawsuits here to stay

Have you heard about the lawsuit that could disrupt Illinois’ election one week from today?

You have if you were reading this column May 31, when I examined a federal lawsuit asking a judge to declare certain Illinois Election Code amendments violate plaintiffs’ Constitutional rights and to issue an injunction keeping the state from enforcing its own election law.

The primary issue is a 2015 law letting election authorities count absentee ballots up to 14 days after the election, provided they are postmarked on or before Election Day or have a dated, verified voter signature. That’s a problem for federal elections, per the complaint, because Congress sets the date.

The legal theory is that because Illinois counts votes they allege are illegal, the power of legally cast ballots is diluted, violating First and 14th Amendment rights. Furthermore, candidates in federal elections are forced “to spend money, devote time and otherwise injuriously rely on unlawful provisions of state law in organizing, funding and running their campaigns.”

The state’s counter is clear: the votes are cast in time, it’s the counting that carries on, and Congress didn’t regulate how long states can take to tally.

The lawsuit remains pending in U.S. District Court in Chicago. It’d be nice to think Judge John Kness won’t act on the complaint until all the electoral dust settles, given everyone campaigning has been operating under an assumed set of rules, but five months seems like plenty of time to issue an opinion.

Five months also is enough time for a member of Congress to act, but U.S. Rep. Mike Bost seems content to play the waiting game.

Bost, R-Murphysboro, is one of three plaintiffs in the suit that could upend Illinois voting. That’s the same Bost who in January 2021 said, “The Constitution is clear: state legislatures set the rules for states in conducting their elections.” In August 2021 he added, “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.”

But like most politicians who champion states’ rights, Bost threads a specific legal needle. He supports Illinois setting its own election rules, but argues one of those rules doesn’t square with the U.S. Constitution. So it’s not surprising he hasn’t introduced legislation to codify his viewpoint and has steadfastly opposed Democrats’ voting proposals, which he characterizes as an improper attempt “to nationalize our state and local elections and give unelected Washington bureaucrats power over state election laws.”

There are dozens of lawsuits challenging state election laws and hundreds of reform proposals. Absent new federal legislation, voting rights litigation will remain the norm, here and nationwide.

• Scott T. Holland writes about state government issues for Shaw Media. Follow him on Twitter @sth749. He can be reached at sholland@shawmedia.com.