Bost v. Illinois State Board of Elections

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL J. BOST et al.,

Plaintiffs,

No. 22-cv-02754

v.

THE ILLINOIS STATE BOARD OF Judge John F. Kness

ELECTIONS et al.,

Defendants.

MEMORANDUM OPINION & ORDER

This case challenges an Illinois election statute that governs the time for

counting ballots received after the nationally-uniform day set for federal elections

(“Election Day”). That Illinois law (the “Ballot Receipt Deadline Statute” or “Statute”)

allows ballots to be received and counted for up to 14 days after Election Day.

Plaintiffs are former and prospective candidates for federal office (and registered

voters) who allege that the Ballot Receipt Deadline Statute, contrary to federal law,

dilutes their votes and forces them to spend money and time campaigning after

Election Day. To realize their claims, Plaintiffs have sued the Illinois State Board of

Elections, which supervises the administration of Illinois’s election laws, and its

director, Bernadette Matthews. Plaintiffs seek a declaratory judgment that the

Statute deprives them of their constitutional and statutory rights; they also seek a

permanent injunction prohibiting Defendants from enforcing the Statute.

As explained more fully below, because Plaintiffs fail to plead sufficiently

concrete, particularized, and imminent injuries sufficient to meet the requirement of

standing under Article III of the United States Constitution, the Court lacks the

power to hear this case. And even if standing existed, the Eleventh Amendment

serves as an independent bar to this suit. In any event, Plaintiffs have not plausibly

alleged that the Ballot Receipt Deadline Statute conflicts with federal law. As a

result, and on the motion of Defendants, the case is dismissed without prejudice.

I. BACKGROUND

Since the founding of our country, the law governing voting in federal elections

has been a peculiarly federated affair. Under the United States Constitution, it is up

to the legislatures of the states to prescribe the “Times, Places and Manner” of holding

elections for U.S. senators and representatives. U.S. Const. art. I, § 4, cl. 1. But the

Congress may also “at any time by Law make or alter such Regulations . . . .” U.S.

Const. art. I, § 1, cl. 1. For choosing the Electors who actually elect the President, the

Constitution states that “Congress may determine the Time of ch[oo]sing the

Electors, and the Day on which they shall give their Votes; which Day shall be the

same throughout the United States.” U.S. Const. art. II, § 1, cl. 4. But the power to

appoint electors and the mode of their appointment belongs exclusively to the states.

McPherson v. Blacker, 146 U.S. 1, 27 (1892).

Congress has since exercised its Constitutionally-conferred legislative power

to set what has become one “Election Day” for the entire country. 3 U.S.C. §§ 1, 21(1);

2 U.S.C. §§ 1, 7. But despite that national standard, the states retain significant

discretion—frequently exercised—to prescribe the times, places, and manner of

conducting elections. For better or worse, with the advent of technology and changing

voter habits and preferences, gone are the days in which all votes were cast (and

counted) on one Election Day. Numerous states now allow votes to be cast by mail;

those ballots are often transmitted to election authorities (by mail or other means)

before or on Election Day. And to accommodate the potential for delayed deliveries of

otherwise-timely votes, a substantial number of states that permit voting by mail

now also allow mailed votes to be counted for some time past Election Day.

This evolution in voting habits has, perhaps predictably, led to occasional

uncertainty in the administration of elections. Under the power conferred by

Congress, state legislatures are permitted to set rules for ballots received by mail.

Because of the possibility that validly cast ballots will not be received or counted by

election officials before Election Day is over, many state legislatures have ballot

receipt statutes that set a timeframe within which a mail-in ballot may be received

post-Election Day yet still counted toward the final tally. Illinois is one of those states,

and that choice has led to the dispute currently before this Court.

In Illinois, the time for counting ballots received after the date of a federal

election is governed by statute (10 Ill. Comp. Stat. Ann. § 5/19-8(c)). (Dkt. 1 ¶ 14.)

That law allows ballots cast in federal elections to be received and counted for up to

14 days after Election Day, so long as the ballot was postmarked or certified on or

before Election Day. (Id. ¶ 15.) Under this statutory scheme, these mail-in ballots

have the same weight and force that a ballot cast at the polls on Election Day would

have. (Id. ¶ 16.)

Plaintiffs in this case are registered voters, as well as former and prospective

candidates for both federal office and appointment as Presidential Electors. Plaintiffs

allege that the Ballot Receipt Deadline Statute violates the Constitution and federal

statutory law, including 2 U.S.C. § 1, 2 U.S.C. § 7, and 3 U.S.C. § 1. (Dkt. 1.) More

specifically, Plaintiffs allege that the Statute violates 2 U.S.C. § 7 and 3 U.S.C. § 1 by

authorizing Illinois election officials to count untimely votes, thus diluting the value

of their timely ballots. Plaintiffs also allege that the Statute deprives them of their

rights as candidates under the First and Fourteenth Amendments by forcing them to

spend time and money to organize, fund, and run their campaign after Election Day.

Plaintiffs say that, because ballots are being counted up to two weeks after Election

Day, they must continue to campaign and to incur inevitable campaign-related

expenses. Plaintiffs allege that the Statute violates 2 U.S.C. § 7 and 3 U.S.C. § 1 and

is thus facially invalid.

In an effort to realize these Constitutional and statutory claims, Plaintiffs have

sued the Illinois State Board of Elections (“State Board”)—which is responsible for

supervising the administration of election laws in Illinois—and its Executive

Director, Bernadette Matthews (in her official capacity). Plaintiffs seek a declaratory

judgment that the Ballot Receipt Deadline Statute deprives them of their

Constitutional rights and injunctive relief to permanently enjoin enforcement of the

Statute. (Dkt. 1 at 11.)

Now before the Court is Defendants’ motion to dismiss for lack of jurisdiction

and for failure to state a claim upon which relief can be granted.1 (Dkt. 25.) In their

motion, Defendants contend that the Court lacks jurisdiction because the Plaintiffs,

having suffered no particularized or concrete injury, do not have standing to bring

this suit. Defendants also argue that Plaintiffs’ claims are barred by the Eleventh

Amendment to the United States Constitution. Defendants assert finally that

Plaintiffs’ suit should be dismissed because Plaintiffs fail to allege plausible claims

under 2 U.S.C. § 7, 3 U.S.C. § 1, and the First and Fourteenth Amendments to the

Constitution. (Dkt. 25 at 11; 14.)

Plaintiffs disagree and contend that, because state laws in conflict with federal

election laws inflict the judicially-cognizable injury of endangering the right to vote,

they do indeed have standing. (Dkt. 43 at 4.) Plaintiffs also argue that their

candidacy-related injuries are independently sufficient to confer Article III standing,

1 On November 8, 2022, the Democratic Party of Illinois (“DPI”) filed a notice of appeal of

the Court’s order denying DPI’s motion to intervene. (Dkt. 59.) At first glance, that pending

appeal might suggest that this Court must wait for the Court of Appeals to resolve the appeal

before adjudicating Defendants’ motions. But a notice of appeal does not completely divest

this Court of its jurisdiction over the case. As the Supreme Court held in Griggs v. Provident

Consumer Disc. Co., the filing of a notice of appeal “divests the district court of its control

over those aspects of the case involved in the appeal.” 459 U.S. 56, 58 (1982). If the appeal

does not concern the underlying merits of the case, the district court is not divested of its

jurisdiction over the merits. See Kilty v. Weyerhaeuser Co., 758 F. App’x 530, 532–533 (7th

Cir. 2019). DPI’s interlocutory appeal concerned only its effort to intervene, not the

underlying merits. Accordingly, this Court retains jurisdiction to address the motion to

dismiss. To be sure, the Court presumes it possesses the discretion to await resolution of the

pending appeal before proceeding to the merits. But imposing an ersatz stay would be

imprudent for several reasons: first, no party has asked for a stay; second, the relief set forth

in this ruling is aligned with the stated interests of DPI as amicus curiae and putative

intervenor (see, e.g., Dkt. 13, 56); third, the Court is now prepared to issue this substantive

ruling and to enter a judgment of dismissal; and fourth, the parties’ substantive motions have

already been pending for a substantial period. Accordingly, the Court will proceed to the

merits despite the pending appeal of nonparty DPI.

as the unnecessary expenditure of campaign money is both concrete and

particularized. As for the Eleventh Amendment, Plaintiffs maintain that the “plan of

the Convention” doctrine renders the Eleventh Amendment inapplicable. Finally,

Plaintiffs insist that they have pleaded a viable claim based on Illinois law permitting

voting beyond Election Day in violation of federal election law. These arguments are

addressed in turn.

II. STANDARD OF REVIEW

A. Standing

It is a truism that Article III of the Constitution requires an actual case or

controversy between the parties. Deveraux v. City of Chicago, 14 F.3d 328, 331 (7th

Cir. 1994). As part of that requirement, plaintiffs seeking to have a case heard in

federal court must demonstrate that they have standing to sue. In particular,

plaintiffs must show (1) that they suffered a concrete and particularized injury in

fact; (2) a causal connection between the injury and the challenged conduct of the

defendant; and (3) that the injury will be likely redressed by a favorable judicial

decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Because

“[s]tanding is an essential component of Article III’s case-or-controversy

requirement,” defendants may seek the dismissal of nonjusticiable claims through a

Rule 12(b)(1) motion for lack of subject matter jurisdiction. Apex Digital, Inc. v. Sears,

Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (quoting Lujan, 504 U.S. at 561).

A Rule 12(b)(1) motion challenges the Court’s subject matter jurisdiction over

the case. Fed. R. Civ. P. 12(b)(1); Meyer v. St. John’s Hosp. of the Hosp. Sisters of the

Third Order of Sta. Francis, 164 F. Supp. 3d 1083, 1085 (C.D. Ill. 2016). Rule 12(b)(1)

“provides for dismissal of a claim based on lack of subject matter jurisdiction,

including lack of standing.” Stubenfield v. Chicago Housing Authority, 6 F. Supp. 3d

779, 782 (N.D. Ill. 2013) (citing Retired Chicago Police Ass’n v. City of Chicago, 76

F.3d 856 (7th Cir. 1996)).

B. The Eleventh Amendment

Under the Eleventh Amendment to the Constitution, states (and their officers)

are generally protected from suit. As a “general rule,” private individuals “are unable

to sue a state in federal court absent the state’s consent.” McDonough Assocs., Inc. v.

Grunloh, 722 F.3d 1043, 1049 (7th Cir. 2013). That protection extends to state

agencies and state officials acting in their official capacities. Indiana Prot. &

Advocacy Servs. v. Indiana Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir.

2010).

An exception to the Eleventh Amendment’s general bar on suits against states

and their agencies can be found under the “plan of the Convention” doctrine. Alden v.

Maine, 527 U.S. 706, 729–30 (1999) (quoting Principality of Monaco v. State of

Mississippi, 292 U.S. 313, 323–24 (1934)). Under that doctrine, the sovereign

immunity afforded to States by the Eleventh Amendment will cease where a

“fundamental postulate[] implicit in the constitutional design” begins. PennEast

Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2258 (2021). Because the Eleventh

Amendment confirmed, rather than established, sovereign immunity, the scope of the

States’ immunity from suit is not demarcated by the text of the Eleventh Amendment

itself but rather by fundamental postulates implicit in the design of the Constitution.

Alden, 527 U.S. at 729–30. In other words, the federal government “is invested with

full and complete power to execute and carry out [the Constitution’s] purposes,” and

if a state interferes with that power, that state may not assert sovereign immunity

from suit in federal court. PennEast, 141 S. Ct. at 2259.

C. Motion to Dismiss for Failure to State a Claim

A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to

state a claim upon which relief may be granted.” Hallinan v. Fraternal Ord. of Police

of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Each complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). These allegations “must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put another

way, the complaint must present a “short, plain, and plausible factual narrative that

conveys a story that holds together.” Kaminski v. Elite Staffing, Inc., 23 F.4th 774,

777 (7th Cir. 2022) (cleaned up). In evaluating a motion to dismiss, the Court must

accept as true the complaint’s factual allegations and draw reasonable inferences in

the plaintiff’s favor. Iqbal, 556 U.S. at 678. But even though factual allegations are

entitled to the assumption of truth, mere legal conclusions are not. Id. at 678–79.

III. DISCUSSION

A. Plaintiffs Lack Standing to Bring This Suit

To bring a suit in federal court, the party suing must establish that it has

standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). To establish standing, a

plaintiff must prove that he has “(1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61 (1992). Of these three elements, injury in fact is often the most

significant hurdle for a plaintiff to clear in the standing analysis. To show injury in

fact, Plaintiffs must establish three sub-elements: first, the “invasion of a legally

protected interest”; second, that the injury is both “concrete and particularized”; and

third, that the injury is “actual or imminent, not conjectural or hypothetical.” Spokeo,

578 U.S. at 339. The first sub-element—invasion of a legally protected interest—is

largely self-explanatory. The second and third, however, require more discussion. For

an injury in fact to be “concrete and particularized,” it must affect the plaintiff in a

personal and individual way. Lujan, 504 U.S. at 560 n.1. For an injury in fact to be

actual or imminent, a plaintiff must show that an alleged future injury is “certainly

impending,” not merely possible. Clapper v. Amnesty Int’l. USA, 568 U.S. 398, 409

(2013).

Plaintiffs present three harms that they allege are sufficient to confer

standing: the Ballot Receipt Deadline Statute’s alleged facial conflict with federal

law, vote dilution, and Congressman Bost’s injuries as a candidate. Each of these

alleged harms and whether they are sufficient to confer Article III standing are

addressed in turn.

1. Alleging Conflict with the Elections Clause Is not a Concrete and

Particularized Injury.

Defendants first argue that Plaintiffs do not have standing because the

asserted injuries are not sufficiently concrete and particularized. (Dkt. 26 at 5.)

Defendants state that Plaintiffs merely assert a disagreement with the Ballot Receipt

Deadline Statute and fail to explain why it harms them specifically in a way that

differs from Illinois voters generally. (Dkt. 26 at 5, 7.) Plaintiffs respond that their

alleged vote dilution injury is sufficiently concrete and particularized. (Dkt. 43 at 5–

8.) Plaintiffs also assert that, even if the Plaintiffs’ facial challenge to the statute and

vote dilution injuries are insufficiently concrete and particularized, they still have

standing based on the Congressman Bost’s injury. Congressman Bost’s campaign-

resource injury is, they argue, concrete and particularized because it is specific to

Congressman Bost as a candidate. (Id. at 8–9.)

To adequately plead an injury in fact sufficient for Article III standing, the

alleged injury must be “concrete and particularized.” A “generalized grievance” is

insufficient to confer standing. If a party’s injury is a “grievance shared . . . by all or

a large class of citizens,” it is generalized and insufficient for standing. Warth v.

Seldin, 422 U.S. 490, 499 (1975).

A plaintiff cannot show a concrete and particularized injury sufficient for

standing by showing a mere “general interest common to all members of the public.”

Ex parte Levitt, 302 U.S. 633, 634 (1937). As the Supreme Court explained nearly 50

years ago, an allegation relating to the general conduct of government is not generally

concrete and particularized enough to satisfy the injury in fact requirement. United

States v. Richardson, 418 U.S. 166, 174 (1974); see also Bognet v. Sec’y Commonwealth

of Pa., 980 F.3d 336, 349 (3d Cir. 2020) (“[P]rivate plaintiffs lack standing to sue for

alleged injuries attributable to a state government’s violations of the Elections

Clause.”). If a plaintiff offers only a generally available grievance about government,

claiming only “harm to his and every citizen’s interest in proper application of the

Constitution and laws, and seeking relief that no more directly and tangibly benefits

him than it does the public at large—[the plaintiff] does not state an Article III case

or controversy.” Lujan, 504 U.S. at 573–74.

One component of Plaintiffs’ standing theory is that the Ballot Receipt

Deadline Statute conflicts with 2 U.S.C. § 7 and 3 U.S.C. § 1. Plaintiffs’ allegations

on this score amount to a “general grievance about governance” that is insufficient to

confer standing. Plaintiffs do not specify how they, individually, are or will be harmed

in a concrete and particularized way by the Statute’s alleged facial conflict with the

Elections Clause. Instead, they generally allege that the Statute violates the

Elections Clause. (Dkt. 1 at 9–10.) Rather than plead specific, personal harms,

Plaintiffs merely state that they “have no adequate remedy at law and will suffer

serious and irreparable harm to their constitutional rights unless Defendants are

enjoined from implementing and enforcing 10 Ill. Comp. Stat. Ann. § 5/19-8.” (Dkt. 1

at 10.)

Courts faced with similar allegations have rejected plaintiffs’ claims that they

possessed standing. This type of injury is the kind of generalized grievance that is

insufficient to confer standing. In Lance v. Coffman, for example, the Supreme Court

considered the challenge of four Colorado voters to the redistricting provision of the

Colorado Constitution. Those Plaintiffs alleged that the provision conflicted with the

Elections Clause of the United States Constitution. 549 U.S. 437, 441–42 (2007). But

the Supreme Court disagreed and explained that a bare allegation that the Elections

Clause has not been followed is “precisely the kind of undifferentiated, generalized

grievance about the conduct of government that we have refused to countenance in

the past[;] . . . plaintiffs assert no particularized stake in the litigation.” Id. at 442.

Plaintiffs’ complaint echoes the allegations in Lance. Plaintiffs’ Elections

Clause claims allege a general interest that every citizen shares in the proper

application of the Constitution and the laws of the United States. Lujan, 504 U.S. at

560–61. Seeking relief for this grievance no more “directly and tangibly benefits

[Plaintiffs] than it does the public at large” and thus “does not state an Article III

case or controversy.” Id. at 573–74. Put differently, were Plaintiffs (acting as voters)

to succeed in making Illinois voting laws comply with federal law, that benefit would

redound benefit equally to all voters—not merely to Plaintiffs specifically.

Plaintiffs cite a variety of cases in support of their standing argument (Dkt.

43), but those cases do not squarely address the issue of standing. See, e.g., Foster v.

Love, 533 U.S. 67 (1997).2 In particular, Plaintiffs cite Judge v. Quinn, which

Plaintiffs contend is analogous to this case. Plaintiffs assert that the injuries they

allege are “consistent with the injuries that led this Court in 2009 to find that

2 Although those courts reached the merits, thus implying standing to sue in those cases,

the Supreme Court has “often said that drive-by jurisdictional rulings of this sort . . . have

no precedential effect.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998).

different voters had standing to challenge a special election date chosen to fill the

Senate seat vacated by then-President-elect Obama.” (Dkt. 43 at 6) (citing Judge v.

Quinn, 623 F. Supp. 2d 933, 934 n.3 (N.D. Ill. 2009)). But the court in Judge did not

undergo an extensive standing analysis—standing was instead relegated to a single

footnote in which the court said it “concur[red] with the parties’ apparent agreement

that plaintiffs have standing.” Id. This brief acknowledgment of standing is the exact

kind of drive-by jurisdictional ruling that the Supreme Court has cautioned courts to

avoid treating as precedential. Citizens for a Better Env’t, 523 U.S. at 91. Accordingly,

Judge does not show that Plaintiffs have standing.

Plaintiffs’ claims are, in any event, distinguishable from those in Judge. Those

plaintiffs challenged then-Governor Quinn’s decision to allow Roland Burris, who was

specially appointed to fill a vacancy in the United States Senate, to remain in office

until the next regular election rather than conducting a special election to elect a

replacement senator. Id. at 934. As Judge reflects, the plaintiffs were concerned about

being denied entirely the right to vote for their representative in the Senate—not that

their votes in a federal election were being diluted. Further, the plaintiffs did not

allege any sort of vote fraud. Because the Judge plaintiffs were challenging the

outright denial of their right to vote, rather than bringing a claim that their votes

were diluted by the allegedly fraudulent votes of others, Judge is distinguishable.

Plaintiffs’ contention that the Ballot Receipt Deadline Statute inflicts an injury

sufficient to confer Article III standing fails because it is not specific to Plaintiffs. The

alleged conflict with the Elections Clause is same kind of injury that the Supreme

Court found too undifferentiated to confer standing in Lance. Further, the cases

Plaintiffs cite to support a finding of standing do not engage in a standing analysis

and are factually distinguishable. For all of these reasons, therefore Plaintiffs fail to

allege a particularized injury.

2. Plaintiffs’ Vote Dilution Claim is Insufficient to Confer Standing.

Plaintiffs also allege that the Ballot Receipt Deadline Statue dilutes their votes

and state that this alleged harm is sufficient to confer standing. Plaintiffs contend

that by counting ballots received after Election Day, their ballots, presumably cast

on or before Election Day and received on or before Election Day, are diluted. In

contrast, Defendants state that the vote dilution claim is not concrete and

particularized enough to meet Article III’s requirements.

Plaintiffs’ vote dilution claim is similar to the vote dilution claim at issue in

Feehan v. Wisconsin Election Commission. 506 F. Supp. 3d 596 (E.D. Wis. 2020). In

Feehan, the Plaintiff alleged that Wisconsin’s election policies diluted his vote in

violation of the Constitution. More specifically, the plaintiff alleged “massive election

fraud” in violation of the Election, Electors, and Equal Protection Clauses of the

Constitution. Id. at 601. The plaintiffs sought a declaratory judgment that

Wisconsin’s signature verification violated the Constitution and that mail-in and

absentee ballot fraud occurred in the 2020 election. Id. at 602. They also sought a

permanent injunction prohibiting the Wisconsin governor and secretary of state from

transmitting the certified election results to the Electoral College. Id. Feehan’s

plaintiffs thus maintained that their alleged vote dilution injury was sufficient for

Article III standing. But the Feehan court disagreed and held that the injuries

claimed were “too speculative and generalized” because they were “injuries that any

Wisconsin voter suffers.” Id. at 609.

Courts outside this Circuit have agreed that claims of vote dilution based on

the existence of unlawful ballots fail to establish standing. For example, the district

court for the Middle District of North Carolina held that in “vote dilution cases arising

out of the possibility of unlawful or invalid ballots being counted,” the harm alleged

“is unduly speculative and impermissibly generalized because all voters in a state are

affected.” Moore v. Circosta, 949 F. Supp. 3d 289, 312–13 (M.D.N.C. 2020). Although

Moore did not go so far as to say that no statewide election law could ever be

challenged “simply because it affects all voters,” Moore explained that “the notion

that a single person’s vote will be less valuable as a result of unlawful or invalid

ballots being cast is not the concrete and particularized injury [that is] necessary for

Article III standing.” Id. Unlike gerrymandering claims, “in which the injury is

specific to a group of voters based on their racial identity or the district in which they

live,” all voters would suffer from the vote dilution injury alleged. Id. As a result,

Moore found that the plaintiff had no standing to bring the vote dilution claim.

Plaintiffs’ vote dilution claim is effectively the same as the vote dilution claims

in Feehan and Moore. In Count I of the complaint, Plaintiffs allege that “[u]ntimely

and illegal ballots received and counted after Election Day pursuant to 10 Ill. Comp.

Stat. Ann. § 5/19-8 dilute the value of timely ballots cast and received on or before

Election Day, including Plaintiffs’ timely cast and received ballots.” (Dkt. 1 ¶ 41.)

Plaintiffs suggest the dilution posed by the Ballot Receipt Deadline Statute violates

the Elections Clause, but, as in Moore and Feehan, Plaintiffs do not allege an injury

beyond the general grievance that all Illinois voters would share if that were the case.

To be sure, the plaintiffs in Feehan, unlike here, sought to decertify election

results, and thus Plaintiffs argue that their claim is distinct from the underlying

claim in Feehan. (Dkt. 43 at 11–12). But that is a distinction without a difference, as

both the claims here and in Feehan are the same on a legal level: they both allege

that the election process is “riddled with illegality,” thus diluting their right to vote.

Feehan, 506 F. Supp. 3d at 609.

More broadly, Plaintiffs assert that a ruling for Defendants on the standing

issue would give rise to an untenable situation in which voters will never have

standing to challenge gross abuses of state power. Plaintiffs compare this case to a

situation in which “Illinois granted citizens of France the right to vote in its federal

elections.” (Dkt. 43 at n.6.) In Plaintiffs’ example, were Defendants’ reasoning to

prevail, the result would be that “no private citizen would have standing to challenge

the French ballots.” (Id.)

Although Plaintiffs’ hypothetical concerning illegitimate French voters raises

a sincere question about the limits of the doctrine of standing, it ultimately strays too

far from the context of this case to be genuinely illustrative. Contrary to Plaintiffs’

conceptualization, a vote dilution claim under the Equal Protection Clause is about

votes being weighted differently to the disadvantage of an identifiable group. Bognet,

980 F.3d at 355. That is, a vote dilution claim is about certain votes being given less

value than others, and such claims typically arise in the context of redistricting

disputes. Federal courts have thus declined to apply the doctrine of vote dilution to

voter fraud allegations, e.g., Bowyer v. Ducey, 506 F. Supp. 3d 699, 711 (D. Ariz. Dec.

9, 2020), because an increase in the pool of voters generally does not constitute vote

dilution. Absent any suggestion that our hypothetical, carpetbagging French voters

diluted the votes of another identifiable group of legitimate voters, current standing

doctrine does not support Plaintiffs’ claims. Further, Plaintiffs’ hypothetical depends

on evidence of illegal votes actually being cast. (Dkt. 43 at 6 n.1.) But Plaintiffs do not

allege that any illegal ballots were cast in any election—they merely suggest the

possibility of such votes being counted. The lack of any such allegation distinguishes

Plaintiffs’ allegations from the French voter hypothetical. Put another way, to the

extent there is an outer boundary at which the counting of wholly illegal ballots cast

by noncitizens amounts to a cognizable claim of vote dilution for which standing

would exist, Plaintiffs’ claims here do not come close to reaching it.

As in Feehan and Moore, Plaintiffs’ claims here are too speculative and

generalized to constitute an injury in fact for the purposes of Article III standing.

Accordingly, Plaintiffs lack standing based on their vote dilution theory.

3. Congressman Bost’s Stated Financial Injuries Are Too

Speculative to Confer Standing.

In addition to Plaintiffs’ vote dilution claims, Congressman Bost alleges that

Defendants are depriving him of his right to stand for office by enforcing the Ballot

Receipt Deadline Statute. (Dkt. 1 ¶¶ 44–48.) Congressman Bost argues that because

he is forced to spend significant resources running his campaign for an additional two

weeks after Election Day, his injury, unlike the other injuries alleged in the

complaint, is necessarily concrete and particularized. (Dkt. 43 at 8.) Defendants

counter that Congressman Bost’s injury, although perhaps concrete, is not

particularized because all federal candidates in Illinois are affected by the Statute in

the same way. (Dkt. 26 at 9.) Defendants also argue that Congressman Bost’s claim

is speculative because the claimed effect of the Statute on his ability to win re-election

is based on a “chain of possibilities.” (Id. at 10.)

By its terms, the Ballot Receipt Deadline Statute affects all federal candidates

equally. All candidates in Illinois, including Congressman Bost’s opponent, are

subject to the same Illinois election rules. See Bognet, 980 F.3d at 351 (candidate-

plaintiff did not have standing when his objection to state election rules applied to all

candidates). Congressman Bost does not allege how his right to stand for office is

particularly affected compared to his opponents. Id. For example, Congressman Bost

does not allege that the ballots cast after Election Day are more likely to be cast for

his opponent. Because the alleged injury is not particularized to Congressman Bost,

it is insufficient to confer standing.

But even if Congressman Bost’s financial injury is concrete and particularized,

his claim is still speculative. An injury in fact, in addition to being concrete and

particularized, must be “actual or imminent.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 409 (2013). In practice, that means that a threatened injury must be “certainly

impending” to constitute an injury in fact, not merely “possible.” Id. For example, a

plaintiff cannot “manufacture standing by choosing to make expenditures based on

hypothetical future harm that is not certainly impending.” Id. at 416.

Congressman Bost’s harm—spending more resources on the election—is not

certainly impending. Congressman Bost asserts that he will be forced to spend money

to avoid the alleged speculative harm that more ballots will be cast for his opponents.

There is, however, no reason to believe that these alleged future expenditures are

anything but speculative. See Bognet, 980 F. 3d at 352. (“The same can be said for

Bognet’s alleged wrongfully incurred expenditures and future expenditures. Any

harm Bognet sought to avoid in making those expenditures was not ‘certainly

impending’—he spent the money to avoid a speculative harm.”); see also Donald J.

Trump for Pres., Inc. v. Boockvar, 493 F. Supp. 3d 331, 380–81 (W.D. Pa. 2020). 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. 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.

Plaintiffs cite to Carson v. Simon to support their argument that Congressman

Bost has standing. (Dkt. 43 at 9) (citing Carson v. Simon, 978 F.3d 1051 (8th Cir.

2020)). In Carson, Minnesota presidential electors challenged a decree issued by the

Minnesota Secretary of State that unilaterally rendered the statutorily-mandated

absentee ballot receipt deadline inoperative. Carson, 978 F.3d at 1054. The district

court found that the electors lacked standing, but the Eighth Circuit reversed. Id. at

1059.

Carson is distinguishable. Its elector-plaintiffs challenged a consent decree

that contradicted state law; they did not (as Plaintiffs do here) seek to challenge a

statute passed by the state legislature and signed into law by the governor. Carson’s

electors were concerned that ballots cast in direct conflict with state law would be

counted as legitimate votes. Plaintiffs here acknowledge that ballots received up to

fourteen days after Election Day are valid under Illinois state law. In any event,

Carson was decided over a dissent, which argued the plaintiffs’ claims concerning an

“ ‘inaccurate vote tally’ . . . appear[ed] to be precisely the kind of undifferentiated,

generalized grievance about the conduct of government that the Supreme Court has

long considered inadequate for standing.” Carson, 978 F.3d at 1063 (Kelly, J.,

dissenting) (cleaned up). That concern over an undifferentiated grievance based on

an inaccurate vote tally rings true here as well. Accordingly, the Court declines to

follow Carson.

In short, Congressman Bost’s alleged financial injury is not concrete and

particularized and is speculative. Accordingly, it insufficient to demonstrate standing

under Article III.

B. The Eleventh Amendment Separately Bars Plaintiffs’ Suit

Apart from standing, Defendants also argue that the Eleventh Amendment

bars Plaintiffs’ various claims. (Dkt. 26 at 11.) Under the Eleventh Amendment, a

state that does not consent to suit in federal court is immune from most claims, unless

Congress has abrogated its immunity. Carmody v. Bd. of Trs. of Univ. of Ill., 893 F.

3d 397, 403 (7th Cir. 2018). Such immunity, however, does not exist if “the State

consents to the suit or Congress has abrogated their immunity.” Tucker v. Williams,

682 F. 3d 654, 658 (7th Cir. 2017). Eleventh Amendment immunity from suit in

federal court extends to “arms of the state”—meaning state agencies. Joseph v. Bd. of

Regents of Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir. 2005). Under this broad

immunity, states and their arms are not generally “persons” subject to suit under 42

U.S.C. § 1983. Defendants thus argue that Plaintiffs cannot sue the Illinois State

Board of Elections because it is an arm of the State of Illinois (Dkt. 26 at 11.)

Plaintiffs respond that courts in this District have previously rejected

immunity arguments in Elections Clause suits because the Elections Clause falls

under the “plan of Convention” exception to Eleventh Amendment immunity. (Dkt.

43 at 13.) Under the “plan of Convention” doctrine, Eleventh Amendment immunity

ceases where a “fundamental postulate implicit in the constitutional design” is at

issue. PennEast Pipeline Company, LLC v. New Jersey, 141 S. Ct. 2244, 2258 (2021).

In practice, this means that the federal government has “full and complete power” to

carry out the Constitution, and when a state interferes with the exercise of that

power, the sovereign immunity defense is not available. Id. at 2259.

Plaintiff argues that the Ballot Receipt Deadline Statute directly contradicts

Article I, Section 4 of the Constitution. That section establishes that “[t]he Times,

Places, and Manner of holding Elections for Senators and Representatives, shall be

prescribed in each State by the Legislature thereof.” Nothing on the face of the

Statute runs afoul of this constitutional provision. By implementing the Statute,

Illinois is following the constitutional command that states determine the time, place,

and manner of elections. In addition, the Statute further 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. Because

the Statute does not conflict with a constitutional provision, it does not fall under the

plan of Convention doctrine.

Plaintiffs’ cited authority applying the plan of Convention doctrine is

distinguishable. Public Interest Legal Found. v. Matthews, No. 20-3190, 2022 U.S.

Dist. LEXIS 40640 (C.D. Ill. March 8, 2022) and Illinois Conservative Union et al. v.

Illinois et al., No. 20-cv-05542, 2021 WL 2206159 (N.D. Ill. Sept. 28, 2021) both center

on the National Voter Registration Act (NVRA). In those cases, the courts found that

the plan of Convention doctrine applied because, by passing the NVRA, Congress

“act[ed] pursuant to its power under the Elections Clause.” Public Interest Legal

Found., 2022 U.S. Dist. LEXIS 40640 at *4; see also Ill. Conservative Union et al.,

2021 WL 2206159, at *6. By acting under this power, Congress superseded all

conflicting state laws. Unlike those cases, though, here there is no intervening federal

law showing that the Ballot Receipt Deadline Statute conflicts with the Elections

Clause. Those cases, therefore, do not govern the outcome here.

Because the Ballot Receipt Deadline Statute does not fall under the plan of

Convention doctrine, Plaintiffs’ argument that their claims are exempted from

Eleventh Amendment immunity fail. Plaintiffs do not contest that the Illinois State

Board of Elections is an arm of the state covered by the Eleventh Amendment and do

not argue that any other Eleventh Amendment exception applies. Accordingly, and

apart from the issue of standing, the Eleventh Amendment independently bars

Plaintiffs’ suit.

C. Plaintiffs Separately Fail to State a Claim Upon Which Relief

Can Be Granted

1. Plaintiffs Do not Allege Plausible Claims Under 2 U.S.C. § 7 or 3

U.S.C. § 1.

Assuming Plaintiffs had standing to bring their 2 U.S.C. § 7 and 3 U.S.C. § 1

claims, and further assuming Defendants were not immune under the Eleventh

Amendment, Plaintiffs still must state a claim upon which relief can be granted. In

their motion to dismiss, Defendants argue that Plaintiffs have failed to do so.

Specifically, Defendants contend that, because the Ballot Receipt Deadline Statute

does not conflict with either 2 U.S.C. § 7 or 3 U.S.C. § 1, Plaintiffs have not brought

a claim upon which this Court can grant relief.

States have wide discretion to establish the time, place, and manner of electing

their federal representatives. United States v. Classic, 313 U.S. 219, 311 (1941). This

broad discretion is subject only to one limitation: the state’s system for electing its

federal representatives cannot directly conflict with federal election laws on the

subject. Voting Integrity Project, Inc. v. Bomer, 199 F. 3d 773, 775 (5th Cir. 2000).

Under 2 U.S.C. § 7, the date for the election of federal representatives is “[t]he

Tuesday next after the 1st Monday in November, in every even numbered year . . . .”

Under 3 U.S.C. § 1, the date for appointing electors is “the Tuesday next after the

first Monday in November.” Together, these statutes create the federal parameters

for state ballot receipt deadlines in federal elections.

Plaintiffs allege that the Ballot Receipt Deadline Statute violates 2 U.S.C. § 7

and 3 U.S.C. § 1 by allowing the state to count votes that are received after Election

Day, even if they are postmarked on or before the date of the election or certified

before Election Day. (Dkt. 1 at 10.) But the Statute does not contradict 2 U.S.C. § 7

and 3 U.S.C. § 1. As the statute says, all mail-in ballots must be “postmarked no later

than election day.” 10 Ill. Comp. Stat. Ann. § 5/19-8(c). If a ballot is not postmarked,

it must be certified on or before Election Day to be counted. Id. Nowhere in the text

does the Statute allow ballots postmarked or certified after Election Day to be

counted. The question, then, is whether ballots that are postmarked or certified on or

before Election Day, but are not received by Election Day, should be disregarded as

untimely under federal law.

There is a notable lack of federal law governing the timeliness of mail-in

ballots. See Bognet, 980 F.3d at 353. In general, the Elections Clause delegates the

authority to prescribe procedural rules for federal elections to the states. See U.S.

Terms Limits, Inc. v. Thorton, 514 U.S. 779, 832–35 (1995). If the states’ regulations

operate harmoniously with federal statutes, Congress typically does not exercise its

power to alter state election regulations. Bognet, 980 F. 3d at 353.

In this Court’s view, and with due respect to Plaintiffs’ contrary view, the

Ballot Receipt Deadline Statute operates harmoniously with the federal statutes that

set the timing for federal elections. Many states have post-Election Day absentee

ballot receipt deadlines, and at least two states other than Illinois allow mail-in

ballots postmarked on or before Election Day to be counted if they are received within

two weeks of Election Day. See West’s RCWA 29A.40.091 (Washington–no receipt

deadline for ballots postmarked on or before Election Day); see also Utah Code Ann.

§ 20A-3a-204 (seven to 14 days after the election if postmarked the day before the

election). Other states will accept mail-in ballots received seven to 10 days after

Election Day. See AS § 15.20.081(e) & (h) (Alaska–10 days after Election Day if

postmarked on or before Election Day); DC ST § 1-1001.05(a)(10A) (District of

Columbia–seven days after the election if postmarked on or before Election Day); NV

Rev Stat § 293.317 (Nevada–by 5:00 P.M. on the seventh day after Election Day if

postmarked by Election Day); R.C. § 3509.05 (Ohio–10 days after the election if

postmarked by the day before Election Day). Despite these ballot receipt deadline

statutes being in place for many years in many states, Congress has never stepped in

and altered the rules. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 14

(2013) (“There is good reason for treating Elections Clause legislation differently: The

assumption that Congress is reluctant to pre-empt does not hold when Congress acts

under that constitutional provision, which empowers Congress to ‘make or alter’ state

election regulations.”).

Moreover, the Ballot Receipt Deadline Statute is facially compatible with the

relevant federal statutes. By counting only these ballots that are postmarked no later

than Election Day, the Statute complies with federal law that set the date for Election

Day. As the United States notes in its statement of interest in this case (Dkt. 47),

even federal laws governing elections allow ballots received after Election Day to be

counted. (Dkt. 47 at 1.) For example, the Uniformed and Overseas Citizens Absentee

Voting Act of 1986 (“UOCAVA”), 52 U.S.C. §§ 20301–20311, sets out various

requirements for states to ensure that military voters overseas can cast ballots in

federal elections. And the United States Attorney General often seeks court-ordered

extensions of ballot receipt deadlines to ensure that military voters are not

disenfranchised. (Id. at 12.) These longstanding efforts by Congress and the executive

branch to ensure that ballots cast by Americans living overseas are counted, so long

as they are cast by Election Day, strongly suggest that statutes like the one at issue

here are compatible with the Elections Clause. (Id. at 10.) Because the Statute does

not facially conflict with the federal election law, Plaintiffs have failed to state a

viable facial challenge to the Statute based on federal law.

2. Plaintiffs Do Not Allege a Plausible Violation of Their First or

Fourteenth Amendment Rights

Plaintiffs also allege that their First Amendment right to vote and right to

stand for office is violated by the Ballot Receipt Deadline Statute. (Dkt. 1 at 8–9.)

Even accepting all of Plaintiffs’ allegations as true, which the Court must do,

Plaintiffs fail to allege a plausible claim that the Statute affects their rights to vote

and stand for office.3

3 Both parties dedicate significant argument to discussing whether the Anderson-Burdick

standard should apply to this case, and if so, what the outcome should be under that test.

Anderson-Burdick applies when a facially valid law placing restrictions on voting

impermissibly burdens the right to vote. Serv. Emps. Int’l Union, Loc. 1 v. Husted, 906 F.

Supp. 2d 745, 750 (S.D. Ohio 2012) (“[W]hen the state places a ‘substantial’ burden on the

a. Plaintiffs fail to state a vote dilution claim upon which

relief can be granted.

As explained above, Plaintiffs’ vote dilution claim rests on a theory that, if

mail-in ballots received after Election Day are counted, then Plaintiffs’ votes,

presumably cast on or before Election Day, are diluted by the late and invalid votes.

(Dkt. 43 at 20.) Counting the votes of others, however, does not infringe on Plaintiffs’

right to vote.

Under the Equal Protection Clause of the Constitution, the right to vote is

protected in two ways. First, a state violates the Equal Protection Clause when it,

having “once granted the right to vote on equal terms,” through “later arbitrary and

disparate treatment, value[s] one person’s vote over that of another.” Bush v. Gore,

531 U.S. 98, 104–05 (2000). Second, the Equal Protection Clause requires states to

ensure that no class of voters receives preferential treatment. Gray v. Sanders, 372

U.S. 368, 379–80 (1963). To prove a violation of the Equal Protection Clause under

the second theory, a plaintiff must show that there is “arbitrary and disparate

treatment.” Bush, 531 U.S. at 105.

Plaintiffs do not plausibly allege an Equal Protection Clause violation under

either theory. If ballots cast by mail and postmarked by Election Day are counted, no

single voter “is specifically disadvantaged,” even if the votes counted in compliance

with the Ballot Receipt Deadline Statute have a “mathematical impact on the final

right to vote—one that is greater than a ‘reasonable, nondiscriminatory restriction’ but less

than a ‘severe burden’—courts apply the Anderson/Burdick test.”). Because the Ballot Receipt

Deadline Statute does not restrict the right to vote, the Anderson-Burdick test does not apply

here.

tally and thus on the proportional effect of every vote.” Wood v. Raffensperger, 981

F.3d 1307, 1314 (11th Cir. 2020). Plaintiffs’ votes are no more diluted than they would

be if “get-out-the-vote” efforts were particularly successful and more people than

anticipated voted in person at the polls. Another voter exercising his or her

constitutional right to vote does not affect the value of a different voter’s ballot. A

voter is not guaranteed to have their vote be decisive or to have their vote be for the

ultimate winner of an election. On the contrary, a voter has a right to cast a lawful

ballot and have that lawfully cast ballot counted. Nothing in the Statute infringes on

that right, and Plaintiffs do not allege any facts that suggest their ability to cast a

lawful ballot is negatively affected by the Statute. Unlike the facts in other vote

dilution cases in which plaintiffs were harmed because the voting process was marred

by overt fraudulent practices like ballot stuffing, Plaintiffs’ votes here are not diluted

by other valid, lawfully cast votes. See, e.g., United States v. Saylor, 322 U.S. 385, 386

(1944).

Plaintiffs also do not allege the presence of arbitrary and disparate treatment.

Plaintiffs bring only a facial challenge to the Ballot Receipt Deadline Statute. Put

differently, for Plaintiffs’ as-pleaded theory to be plausible, it would have to be

possible for the statute, as it is written, to allow Illinois election officials to count

mail-in ballots that are cast after Election Day. But the text of the Statute does not

permit that result. All ballots cast by Election Day are treated the same under the

Statute’s plain text. Untimely ballots, i.e., those not cast on or by Election Day, are

not counted.

More broadly, Plaintiffs consistently—and wrongly—conflate “voting” with

“counting votes.” The word “voting” as used in this case is a gerund; that is, a word

derived from a verb that functions as a noun. As a derivative of the verb “to vote,”

“voting” refers to a specific act: casting a vote. Under the Ballot Receipt Deadline

Statute, the voting deadline is unambiguous: the act of voting must take place on or

before Election Day. 10 ILCS § 5/19-8(c). Counting those votes, however, may take

place up to 14 days after Election Day. Id. Voting (as an act) and counting votes (as a

separate act) are not the same thing, and the Statute allows counting alone—not

voting—to continue after Election Day.

It is, of course, possible that election officials could be improperly applying the

Ballot Receipt Deadline Statute and improperly counting late votes. But Plaintiffs do

not allege this in their complaint. If Plaintiffs came to believe that election officials,

in applying the Statute, were illegally counting invalid votes, then Plaintiffs might

have a separate claim (and one that could likely be presented to an Illinois state

court). But Plaintiffs do not allege fraudulent vote counting; they allege only that the

Statute facially allows “late votes” to be counted. As explained above, nothing in the

text of the Statute supports that conclusion. Plaintiffs thus fail to state a vote dilution

claim upon which relief can be granted.

b. Plaintiffs do not plausibly allege that the Ballot Receipt

Deadline Statute impinges on the right to stand for office.

Finally, Plaintiffs allege that the Ballot Receipt Deadline Statute impinges on

the right to stand for office. As the Seventh Circuit has explained, the right to stand

for office “is to some extent derivative of the right of the people to express their

opinions by voting.” Nader v. Keith, 385 F.3d 729, 737 (7th Cir. 2004). But the right

to stand for office is not absolute, and the Constitution gives states the “broad

authority to regulate the conduct of elections.” Griffin v. Roupas, 385 F.3d 1128, 1130

(7th Cir. 1997). If a state is regulating the “Times, Places, and Manner of holding

Elections for Senators and Representatives” under Article I, Section 4, clause 1 of the

Constitution, that regulation cannot be said to infringe on the right to stand for office.

See generally Tripp v. Scholz, 872 F.3d 857, 862–863 (7th Cir. 2017).

Plaintiffs allege that the Ballot Receipt Deadline Statute forces Congressman

Bost and other candidates “to spend money, devote time, and otherwise injuriously

rely on unlawful provisions of state law in organizing, funding, and running their

campaigns.” (Dkt. 1 ¶ 46.) Plaintiffs do not, in connection with their right to stand for

office claim, explain why the Statute constitutes an invalid regulation of the times,

places, and manner of federal elections. Instead, Plaintiffs merely set forth their

reasons why the Statute could make standing for federal office in Illinois more

challenging.

These allegations do not assert a plausible claim that the Ballot Receipt

Deadline Statute impairs the right to stand for office. Spending time and money on

campaigning is an inevitable feature of running for office, and Plaintiffs do not

contend that the extra time and money they might have to spend due to the Statute

prevents them from standing for office at all. For these reasons, Plaintiffs’ “right to

stand for office” claim is unavailing.

IV. CONCLUSION

Plaintiffs lack standing to sue, the Eleventh Amendment is a bar to suit, and

the Complaint fails to state a claim upon which relief can be granted. Defendants’

motion to dismiss is therefore granted, and the case is dismissed. Because the

principal basis for dismissal is a lack of jurisdiction based on standing, this dismissal

is without prejudice. See McHugh v. Ill. Dep't of Transp., 55 F.4th 529, 533 (7th Cir.

2022) (dismissals based on lack of subject matter jurisdiction and Eleventh

Amendment immunity must be without prejudice).

SO ORDERED in No. 22-cv-02754.

Date: July 26, 2023 _ LUD Kose

JO F. KNESS

United States District Judge

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