Petition for Writ of Certiorari — Michael J. Bost, et al., Petitioners v. Illinois State Board of Elections, et al.

ia

APPENDIX TABLE OF CONTENTS

Appendix A – U.S. Court of Appeals for the Seventh

Circuit Opinion in 23-2644

Issued August 21, 2024 ...................1a

Appendix B – U.S. Court of Appeals for the Seventh

Circuit Judgment in 23-2644

Issued August 21, 2024 .................24a

Appendix C – Illinois District Court Opinion

in 22-cv-02754

Issued July 26, 2023 ......................26a

Appendix D – Illinois District Court Judgment

in 22-cv-02754

Issued July 26, 2023 ......................59a

Appendix E – Constitutional and Statutory

Provisions.......................................61a

Appendix F –

Declaration of Michael J. Bost

Illinois District Court

in 1:22-cv-02754

Issued July 15, 2022 ......................64a

Appendix G – Declaration of Laura Pollastrini

Illinois District Court

in 1:22-cv-2754

Issued July 15, 2022 ......................70a

Appendix H – Declaration of Susan Sweeney

Illinois District Court

in 1:22-cv-2754

Issued July 15, 2022 ......................76a

iia

Appendix I –

Complaint

Illinois District Court

Filed May 25, 2022.........................80a

1a

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

_________________

No. 23-2644

MICHAEL J. BOST, et al.,

Plaintiffs-Appellants,

v.

ILLINOIS STATE BOARD OF ELECTIONS and

BERNADETTE MATTHEWS, in her capacity as the

Executive Director of the Illinois State Board of

Elections,

Defendants-Appellees.

_________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:22-cv-02754 — John F. Kness, Judge.

_________________

ARGUED MARCH 28, 2024 – DECIDED AUGUST 21, 2024

_________________

Before BRENNAN, SCUDDER, and LEE, Circuit Judges.

LEE, Circuit Judge. In Illinois, voters can cast

their ballots by mail in any election. And election

2a

officials can receive and count these ballots for up to

two weeks after the date of the election so long as the

ballots are postmarked or certified by that date.

Plaintiffs, comprised of Illinois voters and political

candidates, challenged this procedure, arguing that

it impermissibly expands the time in which residents

can vote. The district court dismissed their claims,

ruling that Plaintiffs lacked standing to sue. The

court also rejected the claims on the merits for good

measure. Because Plaintiffs have not alleged an

adequate injury, we agree that they lack standing to

bring this suit and affirm the district court’s dismissal

of the case on jurisdictional grounds.

I.

Background

A. Legal Background

James Madison observed that the regulation of

elections in the United States is “a task of peculiar

delicacy” that requires involvement from both

Congress and state legislatures. 5 Documentary

History of the Constitution of the United States of

America 441–43 (1905). The Elections Clause of the

Constitution provides that “[t]he Times, Places and

Manner of holding Elections for Senators and

Representatives, shall be prescribed in each State by

the Legislature thereof; but the Congress may at any

time by Law make or alter such Regulations.” U.S.

Const. art. I, § 4, cl. 1.

This clause is a “default provision,” meaning it

“invests the States with the responsibility for the

mechanics of congressional elections, but only so far

as Congress declines to preempt state legislative

choices.” Foster v. Love, 522 U.S. 67, 69 (1997). As long

as a state’s election procedures do not conflict with

3a

federal provisions, states “are given, and in fact

exercise a wide discretion in the formulation of a

system for the choice by the people of representatives

in Congress.” United States v. Classic, 313 U.S. 299,

311 (1941).

Two federal statutes are relevant here. The first

establishes the “day of the election” for selecting

members of the House of Representatives as the

“Tuesday next after the 1st Monday in November, in

every even numbered year” (“Election Day”). 2 U.S.C.

§ 7. The second provides that electors of the President

and Vice President are to “be appointed, in each State,

on election day, in accordance with the laws of the

State enacted prior to election day.” 3 U.S.C. § 1.

Illinois has enacted a statutory scheme that

governs its federal and state elections. See 10 ILCS

5/1-1 et seq. Relevant here, Illinois allows voters to

cast their ballots by mail in any election held in the

state if the ballot is postmarked on or be- fore the day

of the election. Id. §§ 5/19-1; 5/19-8(c). If the mailed

ballot bears no postmark, the voter must have signed

and dated a certification accompanying the ballot

within the same timeframe. Id. § 5/19-8(c). Moreover,

any mail-in ballot that meets these requirements

must be received by election authorities “before the

close of the period for counting provisional ballots,”

id., which is defined as fourteen calendar days from

the election date. Id. § 5/18A-15(a). 1 These provisions

create a two-week period after Election Day where

Illinois officials can receive and count valid ballots

For convenience’s sake, we will refer to these statutes

collectively as the Illinois “ballot receipt procedure.”

1

4a

that are postmarked or certified on or before Election

Day.

B. Procedural History

Each Plaintiff in this case is a registered voter in

Illinois and a candidate for political office. Michael

Bost is a multi-term member of the United States

House of Representatives. Laura Pollatrini and

Susan Sweeney are political activists who served as

presidential electors during the 2020 election. In May

2022, they filed this suit against the Illinois State

Board of Elections (“Board”) and Bernadette

Matthews in her official capacity as the Executive

Director of the Board (collectively, “Defendants”).

Plaintiffs allege that the Illinois ballot receipt

procedure impermissibly extends Election Day,

violating 2 U.S.C. § 7 and 3 U.S.C. § 1. As they see it,

the fourteen-day post-election period for the receipt

and counting of mail-in ballots increases the number

of total votes cast in Illinois by counting “untimely”

ballots. This in turn, Plaintiffs assert, dilutes their

own votes in violation of the First and Fourteenth

Amendments to the Constitution. Plaintiffs also claim

that the ballot receipt procedure forces them to spend

additional time and money operating their campaign

organizations beyond Election Day (for example, to

oversee the counting of mail-in ballots), which

impermissibly

impairs

their

constitutionally

protected right to run for office.

Defendants filed a motion, asking the district

court to dismiss the complaint under Federal Rule of

Civil Procedure 12(b)(1) and 12(b)(6). They argued,

among other things, that Plaintiffs lacked Article III

standing to challenge the Illinois ballot receipt

5a

procedure, that Plaintiffs failed to adequately state a

violation of federal law or the Constitution, and that

the Board was entitled to sovereign immunity under

the Eleventh Amendment. Plaintiffs subsequently

moved for partial summary judgment under Rule 56

on the claims that the ballot receipt procedure

violated their rights to vote and stand for office. In the

end, the district court granted Defendants’ motion to

dismiss, concluding that Plaintiffs lacked standing.

The court also determined that Plaintiffs had failed to

state a legally viable claim. This appeal followed.

II. Analysis

Because the Constitution gives federal courts the

power only to resolve “Cases” and “Controversies,” our

initial inquiry is whether Plaintiffs have standing to

challenge the ballot receipt procedure. U.S. Const.

art. III, § 2. We review de novo the district court’s

ruling that they did not. See Perry v. Sheahan, 222

F.3d 309, 313 (7th Cir. 2000).

To establish the “irreducible constitutional

minimum” of standing, a plaintiff must allege she

suffered (1) an injury in fact, (2) that is fairly

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

redressed by a favorable judicial decision. Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). At the

pleading stage, a plaintiff must allege facts

demonstrating each of these elements. Spokeo, Inc. v.

Robins, 578 U.S. 330, 338 (2016). We take these

factual allegations as true and draw reasonable

inferences in the favor of the plaintiff. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

This case hinges on whether Plaintiffs adequately

allege a sufficient injury in fact. An injury in fact is

6a

one that is “concrete and particularized” and “actual

or imminent, not conjectural or hypothetical.” Lujan,

504 U.S. at 560. To be considered “concrete,” an injury

must be “real, and not abstract,” meaning it “must

actually exist.” Spokeo, 578 U.S. at 340. A concrete

harm is usually physical or monetary but can also

include various intangible harms. See TransUnion v.

Ramirez, 594 U.S. 413, 425 (2021).

For an injury to be “particularized,” it must affect

the plaintiff “in a personal and individual way.”

Spokeo, 578 U.S. at 339. As the Supreme Court has

explained, such an injury must be personal,

individual, and distinct, not general and

undifferentiated. See, e.g., Whitmore v. Arkansas, 495

U.S. 149, 155 (1990) (“The complainant must allege

an injury to himself that is distinct and palpable.”)

(internal citations omitted); United States v.

Richardson, 418 U.S. 166, 176–78 (1974) (declining to

find standing for a “generalized grievance” when it is

“plainly undifferentiated and common to all members

of the public”) (internal citations omitted).

Plaintiffs argue they were injured by the Illinois

ballot receipt procedure both as voters in Illinois and

as political candidates. We consider each of these

propositions in turn.

A. Standing as Voters

Plaintiffs first assert that the strength of their

votes will be diluted in the upcoming election by the

many purportedly “untimely” mail-in ballots that

state election officials will receive and count after

Election Day. In their view, the late-arriving ballots

will diminish the extent to which their ballots help

choose the victor in the election. They recount that, in

7a

2020, approximately 4.4% of the ballots cast in Illinois

were received after Election Day, which diluted the

value of their own votes.

But, even if we were to accept Plaintiffs’ premise

that inclusion of these ballots would cause vote

dilution, their votes would be diluted in the same way

that every other vote cast in Illinois prior to Election

Day would be diluted. Thus, to the extent Plaintiffs

would suffer any injury, it would be in a generalized

manner and not “personal and individual” to

Plaintiffs, as the Supreme Court requires. Spokeo,

578 U.S. at 339 (“For an injury to be particularized, it

must affect the plaintiff in a personal and individual

way.”) (internal quotation and citation omitted); see

also Lujan, 504 U.S. at 575 (noting that a generalized

grievance is one that is “undifferentiated and common

to all members of the public”). Indeed, at its core,

Plaintiffs’ complaint is that Illinois is disobeying

federal election law. But an injury to an individual’s

right to have the government follow the law, without

more, is a generalized grievance that cannot support

standing “no matter how sincere.” Hollingsworth v.

Perry, 570 U.S. 693, 706 (2013); see Lance v. Coffman,

549 U.S. 437, 442 (2007) (noting that injury alleged

by plaintiffs, who claim that Colorado constitutional

provision violated the Election Clause, “is precisely

the kind of undifferentiated, generalized grievance

about the conduct of government that we have refused

to countenance in the past”).

By

way

of

contrast,

consider

racial

gerrymandering cases. There, the Supreme Court has

held that voters in a racially gerrymandered district

have standing because they are “personally subject to

a racial classification.” Ala. Legis. Black Caucus v.

8a

Alabama, 575 U.S. 254, 263 (2015) (cleaned up).

Because these voters have the strength of their votes

diminished compared to voters of another race, the

harm is sufficiently individualized.

Malapportionment cases are another example.

There, voters have standing to challenge the

apportionment of congressional seats because their

votes are diminished compared to voters in other

congressional districts. See Baker v. Carr, 369 U.S.

186, 206 (1962). As the Supreme Court observed, the

plaintiffs in Baker were “in a position of

constitutionally unjustifiable inequality vis-à-vis

voters in irrationally favored” groups. Id. at 207–08.

Here, Plaintiffs have not and will not suffer the same

kind of unequal treatment recognized in Baker and

Alabama Legislative Black Caucus.

The Eleventh Circuit arrived at the same

conclusion in a similar case involving statewide

voting procedures. In Wood v. Raffensperger, the

plaintiff challenged Georgia’s recount procedures,

contending that they diluted his vote by allowing

“unlawful” ballots. 981 F.3d 1307, 1314 (11th Cir.

2020). But the claimant had no standing, the

Eleventh Circuit concluded, because “vote dilution in

this context is a paradigmatic generalized grievance

that cannot support standing.” Id. (cleaned up).

This rationale also informed the Supreme Court’s

holding in Gill v. Whitford, 585 U.S. 48, 64 (2018).

That case involved a challenge to a redistricting plan

in Wisconsin. In determining that the plaintiffs

lacked standing, the Supreme Court distinguished

the allegations in Baker, 369 U.S. 186, and Reynolds

v. Sims, 377 U.S. 533, 561 (1964), noting that “the

9a

injuries giving rise to those claims were individual

and personal in nature, because the claims were

brought by voters who alleged facts showing

disadvantage to themselves as individuals.” Gill, 585

U.S. at 67. Just as in Gill, Plaintiffs here only claim a

generalized grievance affecting all Illinois voters;

therefore, they have not alleged a sufficiently concrete

and particularized injury in fact to support Article III

standing.

B. Standing as Candidates

Plaintiffs next contend that they suffered tangible

and intangible harms as political candidates. As an

initial matter, the parties dispute whether, in

reviewing the district court’s grant of Defendants’

motion to dismiss, we can consider the affidavits

Plaintiffs filed detailing the harms they purportedly

suffered due to the ballot receipt procedure. Plaintiffs

believe we can, relying on United States ex rel. Hanna

v. City of Chicago, 834 F.3d 775, 779 (7th Cir. 2016).

There, we remarked that “[t]he party defending the

adequacy of a complaint may point to facts in a brief

or affidavit ‘in order to show that there is a state of

facts within the scope of the complaint that if proved

(a matter for trial) would entitle him to judgment.’”

Id. (quoting Early v. Bankers Life & Cas. Co., 959 F.2d

75, 79 (7th Cir. 1992)). But Hanna and Early dealt

with motions under Rule 12(b)(6) for failure to state a

claim. Here, we are considering jurisdiction under

Rule 12(b)(1), and the Supreme Court has

unequivocally held that “[w]here, as here, a case is at

the pleading stage, the plaintiff,” as the party

invoking federal jurisdiction, bears the burden to

“clearly allege facts demonstrating each element” of

standing. Spokeo, 578 U.S. at 338 (cleaned up).

10a

Be that as it may, even with their affidavits,

Plaintiffs cannot establish the injury in fact necessary

for Article III standing. Plaintiffs say that the

challenged policy imposed tangible monetary harms

by forcing them to use resources to contest ballots that

arrived after Election Day. For example,

Congressman Bost attests that he must continue to

fund his campaign for two additional weeks after

Election Day to contest any objectionable ballots.

Furthermore, he needs to send poll watchers to each

of the thirty-four counties in his district to monitor

the counting of the votes after Election Day to ensure

that any discrepancies are cured. In Plaintiffs’ view,

the money and organization required to facilitate this

operation is a tangible harm sufficient to confer

standing.

We disagree. Recall that, to confer Article III

standing, a plaintiff’s injury must not only be

“concrete and particularized” but also “actual or

imminent.” Lujan, 504 U.S. at 560. The latter

requirement for standing “ensure[s] that the alleged

injury is not too speculative for Article III purposes.”

Id. at 564 n.2. Thus, when a claimant premises

standing on a future harm, the harm must be more

than just “possible”—the allegedly threatened injury

must be “certainly impending.” Whitmore, 495 U.S. at

158.

The Supreme Court’s holding in Clapper v.

Amnesty International, USA, 568 U.S. 398 (2013), is

instructive. There, the plaintiffs challenged certain

amendments to the Foreign Intelligence Surveillance

Act that allowed government surveillance of

communications to and from persons in foreign

countries under certain circumstances. To establish

11a

standing, the plaintiffs argued that the law required

them to undertake costly measures to ensure the

confidentiality of legitimate communications with

persons abroad to avoid detection. The Court was

unconvinced, finding such injuries too speculative:

Respondents’ contention that they have

standing because they incurred certain

costs as a rea- sonable reaction to a risk

of harm is unavailing—because the

harm respondents seek to avoid is not

certainly impending. In other words,

respondents

cannot

manufacture

standing merely by inflicting harm on

themselves based on their fears of

hypothetical future harm that is not

certainly impending.

Id. at 416.

In much the same way, the Illinois ballot receipt

procedure does not impose a “certainly impending”

injury on Plaintiffs. Rather, it was Plaintiffs’ choice to

expend resources to avoid a hypothetical future

harm—an election defeat. But whether the counting

of ballots received after Election Day would cause

them to lose the election is speculative at best. Indeed,

Congressman Bost, for example, won the last election

with seventy-five percent of the vote. See Ill. State Bd.

of Elections, Election Results, 2022 General Election,

https://www.elections.il.gov/electionoperations/Electi

onVoteTotals.aspx. 2

And

Plaintiffs

cannot

We take judicial notice of the official election results from the

Illinois State Board of Elections website. See Fed. R. Evid.

201(b)(2), (d) (explaining that courts may take judicial notice, “at

any stage of the proceeding,” of a fact “not subject to reasonable

2

12a

manufacture standing by choosing to spend money to

mitigate such conjectural risks.

Resisting this conclusion, Plaintiffs contend that

being compelled to expend resources as a result of the

Illinois ballot receipt procedures is in itself sufficient

for Article III standing. For this proposition, they cite

two cases—Krislov v. Renour, 226 F.3d 851 (7th Cir.

2000), and Libertarian Party of Ill. v. Scholz, 872 F.3d

518 (7th Cir. 2017). Neither is helpful.

In Krislov, we considered a challenge to an Illinois

law that required candidates to collect a certain

number of signatures to appear on the ballot. 226 F.3d

at 856. This regulation mandated that the signatures

had to be collected by voters who lived in the district

where the election took place. Id. We determined that

a candidate had standing to challenge the

constitutionality of the law when he used significant

campaign resources to collect the requisite number of

signatures after some of the signatures were initially

collected by individuals who lived outside of the

district. Id. at 857–58.

In Scholz, we held that a political party had

standing to challenge a law that required the party to

field candidates for every office in the political

subdivision in which the party wished to compete. 872

F.3d at 523. In doing so, we observed that the law

imposed a “burdensome condition” on the Libertarian

dispute because it ... can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned”);

see, e.g., Mont. Green Party v. Jacobsen, 17 F.4th 919, 927 (9th

Cir. 2021) (taking judicial notice of official election results from

the Montana Department of State website).

13a

Party and that the full-slate requirement stood as an

“ongoing obstacle” to ballot access. Id. at 522–23.

Both cases are readily distinguishable—the laws

at issue there imposed a direct affirmative obligation

on the candidates or political parties. By contrast,

here, Plaintiffs are not spending resources to comply

with the Illinois ballot receipt procedure or to satisfy

some obligation it imposes on them. Rather, they are

electing to undertake expenditures to insure against

a result that may or may not come. Such expenditures

are not “fairly traceable” to the Illinois ballot receipt

procedure. Clapper, 568 U.S. at 416.

Undeterred, Plaintiffs also argue that the ballot

receipt procedure imposes an intangible “competitive

injury.” This theory posits that allowing votes to be

received and counted after Election Day could

decrease their margin of victory, which, in turn, could

impact their reputations and decrease their

fundraising. We have recognized similar types of

injuries involving politicians in other circumstances.

See, e.g., Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th

Cir. 1990) (holding that a third party and its

candidates faced the injury of “increased competition”

when the defendants allegedly improperly placed

major-party candidates on the ballot). The problem is

that Plaintiffs do not (and cannot) allege that the

majority of the votes that will be received and counted

after Election Day will break against them, only

highlighting the speculative nature of the purported

harm.

Finally, Plaintiffs contend that they have an

interest in ensuring that the final official vote tally

reflects only legally valid votes. In support, they cite

14a

Carson v. Simon, 978 F.3d 1051, 1056 (8th Cir. 2020).

There, the plaintiffs, who had been nominated as

electors in the 2020 presidential election, challenged

a state court consent decree that required the

Minnesota Secretary of State to receive and count for

up to five days after Election Day absentee ballots

that were postmarked on or before election day. The

Eighth Circuit heard the appeal six days before the

presidential election and well after voters had begun

receiving their absentee ballots. The court found that

the two electors had standing to sue, reasoning that

“[a]n inaccurate vote tally is a concrete and

particularized injury to candidates.” Id. at 1058.

Upon first blush, we question whether the Eighth

Circuit’s brief treatment of this issue without citation

to any authority is consistent with the Supreme

Court’s holding in Lance. See Carson, 978 F.3d at

1063 (Kelly, J., dissenting) (noting that the claimed

injury “appears to be ‘precisely the kind of

undifferentiated, generalized grievance about the

conduct of government’ that the Supreme Court has

long considered inadequate for standing”) (quoting

Lance, 549 U.S. at 442). But, even if consistent with

Lance, we find the facts in Carson markedly different

from those here.

In Carson, over one million voters had already

requested mail-in ballots for the presidential election

as of September 29, 2020. 978 F.3d at 1056. Given

that there were only 3,588,299 preregistered voters in

Minnesota at the time, whether and how the absentee

ballots were counted would likely have had a material

effect in “ensuring that the final vote tally accurately

reflects the legally valid votes cast.” Id. at 1058; see

Fed. R. Evid. 201(b)(2), (d); Off. of the Minn. Sec. of

15a

State,

2020

Election

Statistics,

https://www.sos.state.mn.us/electionsvoting/election-results/2020/2020-general-electionresults/2020-election-statistics. By contrast, here, the

election is months away and the voting process has

not even started, making any threat of an inaccurate

vote tally far more speculative than in Carson. So

again, Plaintiffs have failed to allege a certainly

impending injury.

III. Conclusion

Because Plaintiffs do not have standing to

challenge the Illinois ballot receipt procedure, we

AFFIRM the district court’s dismissal of the case for

lack of jurisdiction.

16a

SCUDDER, Circuit Judge, dissenting in part. I join

my colleagues in rejecting the plaintiffs’ voter-dilution

and competitive-injury theories of standing. I also

agree that plaintiffs Laura Pollatrini and Susan

Sweeney have failed to adequately explain how

Illinois’s ballot-receipt procedure would tangibly

harm them as candidates. In my view, however, the

same cannot be said for Congressman Michael Bost.

Because Illinois’s extended deadline for receiving

mail-in ballots will increase Bost’s campaign costs

this November—a fact that gives Bost a concrete

stake in the resolution of this lawsuit—I respectfully

dissent.

I

Michael Bost has run successfully in 15 electoral

races in Illinois—first as a longstanding member of

the Illinois House of Representatives and then as a

U.S. Representative of House District 12. Like many

candidates, Congressman Bost dispatches poll

watchers on Election Day to monitor the counting of

ballots at each precinct in his district and report any

irregularities. Bost has used watchers in past

elections and intends to do the same in 2024.

In 2013 Illinois extended its deadline before

which mail-in ballots must be received. The new law

directed state officials to count any mail-in ballot

postmarked by Election Day and received up to

fourteen days later. This change in law had an

immediate impact on candidates’ election-monitoring

operations. To ensure that all mail-in ballots were

accurately tallied, Congressman Bost had to recruit,

train, assign, and coordinate poll watchers and keep

his headquarters open for an additional two weeks.

17a

This took substantial time, money, and resources, as

Bost explained in his complaint and sworn

declaration.

In my view, the costs Congressman Bost will incur

to monitor ballots after Election Day gives him “a

personal stake in th[is] dispute” and a basis to proceed

in federal court. FDA v. Alliance for Hippocratic

Medicine, 602 U.S. 367, 379 (2024) (internal quotation

marks omitted). Campaign expenses readily qualify

as both “concrete” and “particularized”—the first two

prongs of Article III standing. See TransUnion LLC v.

Ramirez, 594 U.S. 413, 424–25 (2021) (emphasizing

that tangible monetary harms are quintessential

“concrete injuries”); Mack v. Re- surgent Cap. Servs.,

L.P., 70 F.4th 395, 406 (7th Cir. 2023) (“[M]oney

damages are almost always found to be concrete

harm.”); see also Trump v. Wisconsin Elections

Comm’n, 983 F.3d 919, 924 (7th Cir. 2020) (“An

inaccurate vote tally is a concrete and particularized

injury to candidates.” (quoting Carson v. Simon, 978

F.3d 1051, 1058 (8th Cir. 2020))).

The monitoring costs are also “imminent.”

Congressman Bost has declared, in no uncertain

terms, that he will send poll watchers to monitor vote

processing and counting for two weeks after Election

Day this November. As night follows day, he will incur

campaign expenses to do so. Political campaigns cost

money, including in the form of staffing; none of this

is free. The guaranteed prospect of higher campaign

costs is more than just a “possible future injury.”

Clapper v. Amnesty Intern. USA, 568 U.S. 398, 409

(2013) (cleaned up). Such costs are “certainly

impending.” Id.

18a

Congressman Bost’s increased monitoring

expenses are also “fairly traceable” to Illinois’s ballotreceipt procedure and “redressable by a favorable

ruling.” See Monsanto Co. Geerston Seed Farms, 561

U.S. 139, 149 (2010); see also Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992). The only reason

he continues to monitor polls after Election Day is

because Illinois law allows ballots to be received and

counted. Before Illinois decided to accept and count

such ballots, he had no need for such extended

operations. Bost’s decision to continue running his

campaign for two weeks after Election Day is thus a

direct response to Illinois’s decision to extend its

deadline for mail-in ballots. We should not hesitate to

hold that Congressman Bost meets all the

requirements of Article III standing.

II

Resisting this conclusion, the Panel majority

describes Bost’s costs as somehow entirely selfinflicted. Nothing in Illinois law, the Panel

emphasizes, forces Bost to monitor the ballot count

after Election Day. According to the Panel, Bost’s

protracted poll watching is not a strategic necessity

but instead an overreaction to a hypothetical

possibility that is “speculative at best”: electoral

defeat due to ballots received after Election Day that

were improperly counted. Op. at 11. Such conjectural

risks, in the majority’s view, are not sufficiently

“imminent” to confer standing. See Clapper, 568 U.S.

at 409. Nor, the Panel reasons, are the expected costs

of precautionary measures taken to avoid those risks.

See Op. at 11–12.

19a

I disagree. For starters, the Panel goes too far in

saying that the risk of ballots swaying the upcoming

District 12 election after Election Day is only

speculative. Nothing in Congressman Bost’s

complaint or sworn declaration supports that view.

Perhaps realizing the shortfall in its reasoning, the

majority opinion resorts to taking judicial notice of

the fact that Congressman Bost won reelection last

cycle by a vast margin. See Op. 11 & n.3. But past is

not prologue for political candidates, including an

incumbent like Congressman Bost. In no way is any

outcome guaranteed in November.

Regardless, a candidate’s past margin of victory

says nothing about the relative weight of mail-in

ballots received after Election Day—and thus the

strategic importance of extended poll-watching

operations. Even if Congressman Bost had won

reelection by 99% in 2022, he would have been more

than justified in monitoring the count after Election

Day if a significant enough portion of ballots

remained outstanding at that point. He is far from

alone in believing that the risk of ballot irregularities

justifies funding poll-watching operations. In recent

years, poll watching has become commonplace among

major candidates, with all 50 states permitting

campaign representatives to monitor vote tallies. See

National Conference of State Legislatures, Poll

Watchers and Challengers (May 28, 2024). In light of

this reality, federal courts should be wary of labelling

such practices speculative, particularly when

included in the longstanding and successful election

strategy of a sitting member of Congress.

In characterizing Congressman Bost’s pollwatching strategy as anchored in speculation, the

20a

Panel also fails to accept his factual allegations as

true for purposes of evaluating standing at the

motion-to-dismiss phase. See Ne. Fla. Chapter of

Associated Gen. Contractors of Am. v. City of

Jacksonville, 508 U.S. 656, 668–69 (1993). The Panel

acknowledges this principle in theory, asserting that

Bost would lack standing even if all the claims in his

complaint and sworn affidavit were true. See Op. at 5,

10. In practice, however, the Panel disregards several

claims made by Bost that directly undermine its

conclusions. Congressman Bost has asserted, for

instance, that the number of ballots received after

Election Day has increased consistently every

election, and that “many of these late-arriving ballots

have discrepancies (e.g., insufficient information,

missing signatures, dates, or postmarks) that need to

be resolved.” Those statements undercut the Panel’s

view that the need for extended monitoring is purely

speculative. At this phase of litigation, we must credit

the former.

The Panel decision also suffers from a deeper flaw.

Even if we assume that Congressman Bost’s concern

about delayed ballots altering the course of his

election is speculative, that alone should not bar his

lawsuit. Plaintiffs who take precautionary measures

to avoid speculative harms are ubiquitous in federal

courts. Consider, for instance, people seeking to

purchase a firearm for self-defense. By doing so, they

seek to take a precautionary measure to mitigate a

risk of harm (an act of violence). That risk is entirely

speculative and may never materialize. But even so,

courts have overwhelmingly held that prospective

gun owners have standing to challenge government

policies that prevent, restrict, or otherwise tax the

21a

preventative measure they seek to take. See, e.g.,

Parker v. District of Columbia, 478 F.3d 370, 376

(D.C. Cir. 2007), aff'd sub nom., District of Columbia

v. Heller, 554 U.S. 570 (2008) (holding that it is “not a

new proposition” that a plaintiff had standing to

challenge the denial of a gun licensing permit). By

dismissing Bost’s expected campaign costs as a selfimposed, preventative measure designed to avoid a

speculative harm, the Panel fails to see this as a

straightforward application of settled principles of

standing.

Where the majority opinion most misses the mark

is in viewing this case as on all-fours with Supreme

Court’s 2013 decision in Clapper v. Amnesty

International, 568 U.S. 398. There the Court declined

to enjoin provisions of the Foreign Intelligence

Surveillance Act authorizing the surveillance of

phone conversations with persons outside the United

States. See id. at 401–02. The Court concluded that

the plaintiffs (attorneys, human-rights advocates, and

NGOs) lacked standing because they had no reason to

believe that the government would “imminently”

target their specific phone conversations under the

Act. See id. at 412. Because any risk of enforcement

was purely speculative, the Court concluded that the

preventative costs that the plaintiffs had undertaken

to avoid potential surveillance did not constitute an

“injury in fact” that was “fairly traceable” to the Act.

See id. at 410–12. Plaintiffs, the Court concluded,

“cannot manufacture standing by choosing to make

expenditures based on hypothetical future harm that

is not certainly impending.” Id. at 402.

The majority concludes that Bost is seeking to do

what Clapper prohibited: transform a purely

22a

speculative injury into an actual one by taking costly

measures in an attempt to prevent it. Clapper and its

progeny teach that when the very application of a

challenged government restriction to the plaintiffs is

uncertain, preventative measures taken to avoid that

application cannot create standing. See id. at 402; see

also Murthy v. Missouri, 144 S. Ct. 1972, 1994–96

(2024) (holding that plaintiffs lacked standing to

challenge government actions that allegedly

encouraged social-media censorship because it was

“no more than conjecture” that the plaintiffs would be

subject to government-induced content moderation

(internal quotation marks omitted)).

But Congressman Bost’s claim is distinct. In

Clapper, the only reason the plaintiffs had for

incurring costs was to guard against the specter of a

surveillance action that may never come. See FEC v.

Cruz, 596 U.S. 289, 297 (2022) (clarifying that the

“problem” that Clapper addressed “was that the [

plaintiffs] could not show that they had been or were

likely to be subjected to th[e] policy in any event”).

Here, however, Congressman Bost’s poll-monitoring

efforts are not aimed at shielding against the

speculative possibility of government action. In direct

contrast to Clapper, the application of the challenged

government restriction in this case is a near certainty.

There will be an election this November,

Congressman Bost will incur staffing costs to monitor

the full and complete ballot count, and Illinois law

will require that that count extend for an additional

two weeks after Election Day.

What is speculative in Bost’s case is not the

application of the challenged statute but a risk

unrelated to its enforcement: the risk of ballot

23a

irregularities swaying an election. But Clapper is

fully consistent with accepting at face value a

plaintiff’s judgment that the risk of some external

harm unrelated to enforcement warrants mitigation.

When the government creates obstacles to such

mitigation efforts—here, as in the gun example and

countless others—plaintiffs have standing to

challenge them in federal court.

Congressman Bost has asserted injuries sufficient

to confer Article III standing by alleging that his

longstanding election-monitoring efforts will incur

extra financial costs this November due to Illinois’s

extended ballot-receipt deadline. As a sitting member

of Congress in the midst of an ongoing reelection

campaign, he is nothing close to a “mere bystander”

to the upcoming election or the allegation at the heart

of this lawsuit. See Alliance for Hippocratic Medicine,

602 U.S. at 379. He is an active stakeholder who

ought to be permitted to raise his claim in federal

court.

24a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen

United States Courthouse

Room 2722–219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

FINAL JUDGMENT

August 21, 2024

Before

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

JOHN Z. LEE, Circuit Judge

MICHAEL J. BOST, et al.,

Plaintiffs – Appellants

v.

No. 23-2644

ILLINOIS STATE BOARD OF

ELECTIONS and BERNADETTE

MATTHEWS, in her capacity as the

Executive Director of the Illinois

State Board of Elections,

Defendants – Appellees

25a

Originating Case Information:

District Court No : 1 :22-cv-02754

Northern District of Illinois, Eastern Division

District Judge John F. Kness

The judgment of the District Court is AFFIRMED,

with costs, in accordance with the decision of this

court entered on this date.

Clerk of the Court

form name: c7_FinalJudgment

(form ID: 132)

26a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

ILLINOIS EASTERN DIVISION

MICHAEL J. BOST et al.,

Plaintiffs,

v.

THE ILLINOIS STATE

BOARD OF ELECTIONS

et al.,

No. 22-cv-02754

Judge John F. Kness

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

27a

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

28a

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 Constitutionallyconferred 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.

29a

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

30a

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.)

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.

31a

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 candidacyrelated injuries are independently sufficient to confer

Article III standing, 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

32a

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

33a

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

34a

(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,

35a

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

36a

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

37a

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

38a

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

different voters had standing to challenge a special

election date chosen to fill the Senate seat vacated by

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).

2

39a

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

40a

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

Insufficient to Confer Standing.

is

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 mailin 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

41a

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

42a

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

43a

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.

44a

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

45a

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

46a

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.

47a

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

48a

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

49a

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

50a

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

51a

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

52a

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

53a

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

a. Plaintiffs fail to state a vote dilution

claim upon which relief can be

granted.

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 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.

3

54a

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 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

55a

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

56a

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

57a

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.

58a

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

___________________________

JOHN F. KNESS

United States District Judge

59a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

ILLINOIS

MICHAEL J. BOST, LAURA

POLLASTRINI, and SUSAN

SWEENEY,

Plaintiffs,

No. 22-cv-02754

v.

Judge John F. Kness

THE ILLINOIS STATE

BOARD OF ELECTIONS,

and BERNADETTE

MATTHEWS, in her capacity

as the Executive Director of

the Illinois State Board of

Elections

Defendants.

JUDGMENT IN A CIVIL CASE

Judgment is hereby entered (check appropriate box):

in favor of plaintiff

which

includes pre-judgment interest.

does not include pre-judgment interest.

Post-judgment interest accrues on that amount

at the rate provided by law from the date of this

judgment.

60a

Plaintiff(s) shall recover costs from defendant(s).

in favor of defendant(s)

and against plaintiff(s)

Defendant(s) shall recover costs from plaintiff(s).

other: Case dismissed without prejudice

based on lack of jurisdiction.

This action was (check one):

tried by a jury with Judge presiding, and the

jury has rendered a verdict.

tried by Judge without a jury and the above

decision was reached.

decided by Judge John F. Kness on an order

granting Defendants' motion (Dkt. 25) to dismiss.

Date: July 26, 2023

__________________________

JOHN F. KNESS

United States District Judge

61a

APPENDIX E

1. Elections Clause, U.S. Const. Art. I, Sec. 4, Cl. 1

provides:

The Times, Places and Manner of holding Elections

for Senators and Representatives, shall be prescribed

in each State by the Legislature thereof; but the

Congress may at any time by Law make or alter such

Regulations, except as to the Places of chusing

Senators.

2. Electors Clause, U.S. Const. Art. II, Sec. 1, Cl. 4

provides:

The Congress may determine the Time of chusing the

Electors, and the Day on which they shall give their

Votes; which Day shall be the same throughout the

United States.

3. 2 U.S.C. 7 provides:

Time of election

The Tuesday next after the 1st Monday in November,

in every even numbered year, is established as the

day for the election, in each of the States and

Territories of the United States, of Representatives

and Delegates to the Congress commencing on the 3d

day of January next thereafter.

62a

4. 3 U.S.C. 1 provides:

Time of appointing electors

The electors of President and Vice President shall be

appointed, in each State, on election day, in

accordance with the laws of the State enacted prior to

election day.

5. 2 U.S.C. 1 provides:

Time for election of Senators

At the regular election held in any State next

preceding the expiration of the term for which any

Senator was elected to represent such State in

Congress, at which election a Representative to

Congress is regularly by law to be chosen, a United

States Senator from said State shall be elected by the

people thereof for the term commencing on the 3d day

of January next thereafter.

6. 3 U.SC. 21 provides, in part:

Definitions

As used in this chapter the term—

(1) “election day” means the Tuesday next after the

first Monday in November, in every fourth year

succeeding every election of a President and Vice

President held in each State, except, in the case of a

State that appoints electors by popular vote, if the

State modifies the period of voting, as necessitated by

force majeure events that are extraordinary and

63a

catastrophic, as provided under laws of the State

enacted prior to such day, “election day” shall include

the modified period of voting.

7. 10 ILCS. 5/19-8(c) provides, in part:

Each vote by mail voter’s ballot that is mailed to an

election authority and postmarked no later than

election day, but that is received by the election

authority after the polls close on election day and

before the close of the period for counting provisional

ballots cast at that election, shall be endorsed by the

receiving authority with the day and hour of receipt

and shall be counted at the central ballot counting

location of the election authority during the period for

counting provisional ballots.

8. 10 ILCS 5/18A-15(a) provides, in part:

The county clerk or board of election commissioners

shall complete the validation and counting of

provisional ballots within 14 calendar days of the day

of the election. The county clerk or board of election

commissioners shall have 7 calendar days from the

completion of the validation and counting of

provisional ballots to conduct its final canvass. The

State Board of Elections shall complete within 31

calendar days of the election or sooner if all the

returns are received, its final canvass of the vote for

all public offices.

64a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL J. BOST, et al.,

Plaintiffs,

v.

THE ILLINOIS STATE

BOARD OF ELECTIONS,

et al.,

Defendants.

Civil Action No.

1:22-cv-02754

DECLARATION OF MICHAEL J. BOST

I, Michael J. Bost, declare as follows:

1. I am a resident of Jackson County, Illinois

and a plaintiff in this lawsuit.

2. I am registered to vote in Jackson County and

voted in the county in the 2020 general federal

election.

3. I am currently a member of the United States

House of Representatives and represent Illinois’ 12th

Congressional District.

4. I was first elected to represent Illinois’ 12th

Congressional District in 2014. I ran for reelection in

2016, 2018, and 2020.

5. Before the recent redistricting, the 12th

District included 12 Illinois counties, in whole or part.

65a

Following the recent redistricting, the 12th District

now includes 34 counties, in whole or part.

6. On June 28, 2022, I was renominated by

Republican voters, and I am again a candidate to

represent Illinois’ 12th Congressional District in the

upcoming November 8, 2022, general federal election.

7. Prior to running for Congress, I was a member

of the Illinois’ House of Representatives. I was first

elected to the Illinois House of Representatives in

1994.

8. I have been a candidate for elected office both

under Illinois’ previous ballot receipt deadline (on or

before Election Day) and following the 2005

amendment to 10 ILCS 5/19-8, which initially held

absentee voting open fourteen days after Election

Day. 2005 Ill. Laws 557 (P.A. 94-557).

9. I have also been a candidate for office after

Illinois again amended Section 19-8(c). 2013 Ill. Laws

1171 (P.A. 98-1171). Following that change, Illinois

expanded from holding voting open fourteen days

after Election Day only for absentee ballots to holding

voting open for its vote- by-mail (“VBM”) program.

The inclusion of ballots from the VBM program

dramatically increased the number of ballots received

during the fourteen days following Election Day.

10. My congressional campaign has spent, and

will spend, money, time, and resources to monitor and

respond as needed to ballots received by state election

officials after the national Election Day.

11. Before the 2005 amendment to Section 198(c), it was much easier for my campaign to organize

Election Day activities. Back then, campaigns

66a

typically only needed volunteers for early voting and

Election Day. Sometimes volunteers would be needed

to monitor canvassing activities the day after Election

Day if canvassing took too long on Election Day

evening, but generally my campaign ended on

Election Day evening.

12. However, the monitoring of ballots has

become significantly more difficult since 2005.

Previously, my campaign needed to focus its efforts on

observing ballots on or before “Election Day.” Now, it

must invest resources on “Election Day” operations

that last fourteen days rather than one day.

13. Since Illinois amended its election code to

hold voting open fourteen days after Election Day, I

have had to organize, fundraise, and run my

campaign for fourteen additional days in order to

monitor and respond as needed to ballots received

after the national Election Day.

14. Since the 2005 changes, it has become

significantly more difficult to find “Election Day”

volunteers, especially those willing volunteer during

the fourteen-day period after Election Day.

15. The volume of votes arriving after Election

Day has grown significantly, especially after Illinois

replaced limited absentee voting with vote-by-mail

(“VBM”) in 2013. Following that change, the number

of ballots arriving after Election Day has

substantially increased almost every year. The

volume of “Election Day” resources needed has

become even greater because many of these latearriving ballots have discrepancies (e.g., insufficient

information, missing signatures, dates, or postmarks)

that need to be resolved.

67a

16. Each resolution of these discrepancies takes

time, assuming county election staff even go through

the trouble, rather than just accepting possibly

deficient ballots in bulk. This resolution process

diverts volunteer and staff resources from my

campaign. Moreover, my campaign needs to both

monitor and evaluate whether to object to the

counting of deficient ballots. This costs my campaign

time, money, volunteers and other resources.

17. For example, my campaign organizes and

sends poll watchers to each county courthouse in my

district. That means this election my campaign will

make every effort to be at the courthouses in every

county in the 12th District. Because of the number of

counties, this potentially means my campaign will

invest hundreds of volunteer and campaign staff to

monitor late arriving ballots during the two weeks

after Election Day. In some instances, my poll

watchers may be the only Republican poll watchers at

a courthouse. If an irregularity is observed by a poll

watcher during this fourteen-day period, my

campaign will need to consult with campaign staff or

lawyers to determine the appropriate action, if any.

18. My campaign is made up of a mix of both paid

and volunteer poll watchers, lawyers, and other

campaign staff. The campaign relies on both paid and

volunteer staff during this fourteen-day period, which

depletes its volunteer and financial resources. Before

Illinois extended its receipt deadline, my campaign

would have avoided such depletion.

19. Late-arriving, deficient ballots exacerbate the

expenses my campaign incurs as a result of Section

19-8(c).

68a

20. Another example involves my campaign’s

ballot chase program. This program is used to

evaluate my campaign’s get-out-the-vote efforts and

other concerns. Because Section 19- 8(c) holds voting

open an additional fourteen days, my campaign has to

keep this program active fourteen additional days

longer than it would have prior to the 2005

amendment.

21. For November 3, 2020, the State Board of

Elections reported 266,417 vote-by- mail ballots

statewide were received during the period from

November 3rd through November 17th. Some of the

late-arriving ballots reported by the State involved

my race for the Illinois’ 12th Congressional District.

22. As a representative and candidate for federal

office, I am entitled to have election results certified

with votes received in compliance with the federal

Election Day statutes. I am also entitled to rely on

provisions of federal law in conducting my campaign,

including in particular, resources allocated to the

post-election certification process.

23. Because Section 19-8(c) does not comply with

federal Election Day statutes, I risk injury if untimely

and illegal ballots cause me to lose my election for

federal office.

24. Because Section 19-8(c) does not comply with

federal Election Day statutes, I risk injury because

my margin of victory in my election may be reduced

by untimely and illegal ballots. Election results are

the best measure for my constituents and me to

evaluate the public’s opinion about my effectiveness

as Congressman for the 12th Congressional District.

A diminished margin of victory will lead to the public

69a

perception that my constituents have concerns about

my job performance as the representative for the 12th

Congressional District. Negative and positive

perceptions about my effectiveness influence

numerous third parties, such as future voters,

Congressional leadership, donors, and potential

political opponents.

25. By counting untimely votes and those

received in violation of the federal Election Day

deadline, the state of Illinois substantially increases

the pool of total votes cast and dilutes the weight of

my timely cast vote. More votes will be counted than

the law allows to be counted, resulting in dilution of

my vote.

26. Because Illinois’ receipt deadline holds voting

open two additional weeks after Election Day, I am

concerned that it gives bad actors, regardless of their

political affiliation, more time to better target and

affect close elections, including my election.

27. For all of these reasons, I am harmed by the

provisions of Illinois law that hold voting open

fourteen days after federal Election Day.

I declare under penalty of perjury that the

foregoing is true and correct. 28 U.S.C. § 1746.

Dated: July 15, 2022

___________________________

MICHAEL J. BOST

70a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL J. BOST, et al.,

Plaintiffs,

v.

THE ILLINOIS STATE

BOARD OF ELECTIONS,

et al.,

Defendants.

Civil Action No.

1:22-cv-2754

DECLARATION OF LAURA POLLASTRINI

I, Laura Pollastrini, declare as follows:

1. I am a resident of Kane County, Illinois and a

plaintiff in this lawsuit.

2. I am registered to vote in Kane County and

have voted regularly in federal elections since 2016.

Prior to moving to Kane County in 2016, I was

registered to vote in DuPage County and have voted

regularly in federal elections in Illinois since first

registering to vote in 1986.

3. I am active in the Illinois Republican Party,

Republican

organizations,

and

Republican

campaigns.

4. During the 2020 federal general election, I

served as a Republican nominee for presidential and

vice-presidential elector at-large for Illinois.

71a

5. In the 2020 general federal election, I voted in

person during Early Voting.

6. In 2020, I was a Precinct Committeeman and

active member of the Kane County Republican

Central Committee. In that role, I was one of a

number of people responsible for helping to recruit

volunteers to serve as either election judges or party

poll watchers, including those needed to observe

voting during the fourteen days following Election

Day.

7. I am currently the Illinois Republican State

Central Committeeperson for the 14th Congressional

District. I was appointed by the Illinois State GOP

Chairman as Chairwoman for the Illinois Republican

Party's Presidential Electors Committee.

8. I have been active in federal and state

campaigns in Illinois since 1990. I have worked or

volunteered during elections in various capacities

during that time. For example, I previously worked as

campaign staff, campaign manager, President of the

DuPage County Young Republicans, Republican

Precinct Committeeman, Republican Township

Chairman,

Township

Republican

Women's

Chairman, Illinois Republican State Central

Committeeman, Illinois Deputy Republican State

Central Committeeman, Delegate to the Republican

National Convention, and Vice Chairman of the Kane

County Republican Party.

9. Because my involvement in Illinois elections

began in 1990, I have worked and volunteered in

elections both before and after the Illinois General

Assembly amended the Election Code in 2005, holding

72a

absentee voting open fourteen days after Election

Day.

10. Before the 2005 change, it was much easier to

organize Election Day activities. Pre-2005, campaigns

typically only needed volunteers for early voting and

Election Day. Sometimes volunteers would be needed

to monitor canvassing activities the day after Election

Day if canvassing took too long on Election Day night

and continued through the next morning.

11. However, the monitoring of canvassing has

become significantly more difficult since 2005. Pre2005, we needed to focus our efforts on observing

ballots on or before "Election Day." Now, we need to

invest time and energy on "Election Day" operations

that last fourteen days rather than one.

12. For example, since the 2005 changes, it has

become significantly more difficult to find "Election

Day" volunteers, especially those willing to volunteer

during the fourteen-day period after Election Day.

13. In addition, the volume of votes arriving after

Election Day has grown significantly, especially after

the state of Illinois replaced limited absentee voting

with vote-by-mail ("VBM") in 2013. Following that

change, the number of ballots arriving after Election

Day has increased substantially almost every year.

The volume of "Election Day" resources needed has

greatly increased because many of these late-arriving

ballots have discrepancies (e.g., insufficient

information, missing signatures, date, or postmark)

that need to be resolved. Each resolution takes time,

assuming county election staff even go through the

trouble, rather than just accepting possibly deficient

ballots in bulk. This resolution process consumes the

73a

volunteer and staff resources that I help organize,

making my efforts to find volunteers even more

difficult.

14. Of course, this assumes volunteers that I help

to organize are even allowed to observe the activities

during the fourteen-day period. On some occasions

during federal elections, county election officials have

prevented or sought to limit our ability to simply

observe the post­ Election Day processing of ballots.

15. My experience is that some county election

officials simply do not want our volunteers at poll

sites, especially a week after Election Day when

ballots are still arriving. Some election officials make

it very difficult for our volunteers to monitor by either

refusing to tell us when they will process late arriving

ballots or by affirmatively refusing to allow us to

observe the processing of late arriving ballots.

16. As a result, there is a noticeable trend of more

ballots arriving after Election Day, but even less

opportunity to observe the ballot counting process.

Stated differently, since 2005 there is more voting,

but less transparency after Election Day in Illinois.

17. For the 2022 federal election, I am working to

train and find volunteers to serve as poll watchers

and election judges. Even this year, despite polls

showing renewed interest in Republican candidates

in Illinois, it is becoming increasingly harder for me

to find volunteers needed to ensure transparency

during the fourteen-day period after Election Day.

18. By counting untimely votes and those

received in violation of the federal Election Day

deadline, the state of Illinois substantially increases

74a

the pool of total votes cast and dilutes the weight of

my timely cast vote. More votes will be counted than

the law allows to be counted, resulting in dilution of

my vote.

19. I intend to vote in the November 8, 2022 and

the November 5, 2024 federal elections.

20. I am seeking election as the Illinois

Republican State Central Committeeperson for the

new 11th Congressional District.

21. I intend to seek reappointment as the

Chairwoman for the Illinois Republican's Presidential

Electors Committee in 2024, and as an at-large

Illinois presidential elector for the November 5, 2024,

presidential election.

22. The counting of unlawful ballots increases the

likelihood of fraudulent activity which discourages

my intended participation as both a voter and a

presidential elector in upcoming elections for federal

office in Illinois. It also discourages volunteers from

devoting time and energy to observing and

participating in the post-Election Day canvassing of

absentee ballots.

23. Because Illinois' receipt deadline holds voting

open two additional weeks after Election Day, I am

concerned that it gives bad actors, regardless of their

political affiliation, more time to better target and

affect close elections, including the election for the

appointment of presidential and vice-presidential

electors.

24. For all of these reasons, I am harmed by the

provisions of Illinois law that allow the canvassing of

vote-by-mail ballots received after Election Day.

75a

I declare under penalty of perjury that the

foregoing is true and correct. 28 U.S.C. § 1746.

Dated: July 15, 2022

76a

APPENDIX H

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL J. BOST, et al.,

Plaintiffs,

v.

THE ILLINOIS STATE

BOARD OF ELECTIONS,

et al.,

Defendants.

Civil Action No.

1:22-cv-2754

DECLARATION OF SUSAN SWEENEY

I, Susan Sweeney, declare as follows:

1. I am a resident of Cook County, Illinois and a

plaintiff in this lawsuit.

2. I am registered to vote in Cook County and

have voted regularly in federal elections since 2004. I

intend to vote in the November 8, 2022 and November

5, 2024 federal elections.

3. I am active in Republican elections, the

Illinois Republican Party, Republican organizations

and campaigns.

4. During the 2020 federal general election, I

served as a Republican nominee for presidential and

vice-presidential elector at-large for I11inois.

77a

5. As a volunteer, I have assisted the Illinois

Republican Party and its federal and state candidates

both before and after Election Day.

6. I am serving as a Precinct Captain for the

Republican Party of Maine Township, Illinois during

the November 8, 2022, congressional elections.

7. As Precinct Captain, I will act as a poll

watcher both before, during, and after Election Day.

Among other things, I will monitor the canvassing of

ballots and look for any abnormalities, which I may

report to election attorneys for the Republican Party

or campaigns.

8. I have previously volunteered in other ways.

For example, from 2014 to 2018, I was the Deputy

Committeeman for the Illinois Republican State

Central Committee for the 9th Congressional District.

One of my duties in that capacity included selecting

committees for the state convention, including the atlarge delegates and presidential and vice-presidential

electors. After each Election Day, I monitored daily

canvassing reports posted by the Cook County Board

of Elections.

9. Additionally, I previously served as

Republican Deputy Committeeman for Maine

Township, Illinois. As Deputy Committeeman for the

Township, I was part of a team that recruited and

trained different election volunteers (e.g., precinct

captains) and organized our election reporting

operations. This work required many hours of work

and funding. I helped plan and host fundraisers that

funded our Election Day activities. We also worked to

find other volunteers. It has gotten more difficult to

find volunteers because Illinois' Receipt Deadline

78a

requires monitoring of incoming ballots fourteen days

after Election Day.

10. As part of these Election Day activities, we

tracked and monitored incoming vote counts for local

and federal campaigns, including vote counts during

the fourteen days following Election Day. During this

time, I also fielded calls from poll watchers about

possible irregularities and anomalies at poll sites.

11. I also served as President of Illinois

Republican Women of Park Ridge from 20142018. Among other things, my job as president

included overseeing our organization's efforts to

support candidates either financially or by providing

volunteers.

12. During the November 3, 2020, federal

election, I volunteered with the Illinois Republican

Party monitoring post-election activities. In the two

weeks following Election Day, I monitored daily

reports regarding late-arriving ballots. I fielded

numerous concerns regarding possible irregularities

or anomalies. My work during this time often involved

talking to election staff, poll watchers, and people

involved with the post-election activities.

The

information I compiled from those reports was passed

on to the Illinois Republican Party and campaigns.

13. I even attempted to watch the post-election

canvassing inside the Cook County Board of Elections

facility in Cicero, Illinois during the 2020 election.

But poll watching during the canvass, including

watching the processing of late-arriving ballots, was

very restricted.

79a

14. In 2020, I was also a Republican nominee for

presidential and vice-presidential elector at-large for

Illinois. In my role as an elector nominee, I

campaigned and monitored Election Day activities on

behalf of my own candidacy in that federal election.

15. I plan to be similarly involved during the

November 8, 2022, congressional elections.

16. During the November 3, 2020, federal

election, I voted in person on Election Day.

17. By counting untimely votes and those

received in violation of the federal Election Day

deadline, Illinois substantially increases the pool of

total votes cast and dilutes the weight of my timely

casted vote. More votes will be counted than the law

allows to be counted, resulting in dilution of my vote.

18. Because Illinois' receipt deadline holds voting

open two additional weeks after Election Day, I am

concerned that it gives bad actors, regardless of their

political affiliation, more time to better target and

affect close elections, including the election for the

appointment of presidential and vice-presidential

electors.

19. For all of these reasons, I am harmed by the

provisions of Illinois law that allow the canvassing of

vote-by-mail ballots received after Election Day.

I declare under penalty of perjury that the

foregoing is true and correct. 28 U.S.C. § 1746.

Dated: July 15, 2022

80a

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL J. BOST; LAURA

POLLASTRINI; and SUSAN

SWEENEY,

Plaintiffs,

v.

Civil Action No. _____

THE ILLINOIS STATE

BOARD OF ELECTIONS;

and BERNADETTE

MATTHEWS, in her capacity

as the Executive Director of

the Illinois State Board of

Elections

Defendants.

COMPLAINT

Plaintiffs Congressman Michael J. Bost, Laura

Pollastrini, and Susan Sweeney (“Plaintiffs”), by and

through counsel, file this Complaint against the

Illinois State Board of Elections and its Executive

Director Bernadette Matthews, and allege as follows:

1. Plaintiffs are former and prospective federal

candidates and registered Illinois voters, all of whom

81a

seek declaratory and injunctive relief to enjoin parts

of the Illinois election code.

2. The United States Congress is authorized

under Art. I, § 4 cl. 1 and Art. II, § 1 cl. 4 to establish

the Time for conducting federal elections. Congress

exercised this authority in 1845 when it enacted the

first of a trio of statutes that established a uniform

national election day for all federal elections.

3. Under federal law, the first Tuesday after the

first Monday in November of every even-numbered

year is election day (“Election Day”) for federal

elections. See 2 U.S.C. § 1; 2 U.S.C. § 7; and 3 U.S.C.

§ 1.

4. 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. See 10

Ill. Comp. Stat. Ann. §§ 5/18A-15(a) & 5/19-8(c).

5. Plaintiffs allege that Illinois’ extension of

Election Day violates federal law and their rights.

6. Plaintiffs seek a judgment declaring Illinois’

extension of Election Day to be unlawful and seek an

injunction enjoining the extension.

JURISDICTION AND VENUE

7. This Court has subject matter jurisdiction

over this action pursuant to 28 U.S.C. §§ 1331, 1343,

and 2201, because the matters in controversy arise

under the Constitution and laws of the United States,

because they concern the deprivation, under color of

State law, of rights secured to Plaintiffs by the

Constitution of the United States and by Acts of

82a

Congress, and because they are proper subjects for a

declaratory judgment.

8. Venue is proper in this district pursuant to 28

U.S.C. § 1391(b) because one or more Defendants

resides in this district and all Defendants are

residents of Illinois, and because a substantial part of

the events and omissions giving rise to the claims

herein occurred in this district; or, in the alternative,

because one or more Defendants is subject to the

Court’s personal jurisdiction in this district with

respect to this action.

PARTIES

9. Plaintiff Michael J. Bost is a resident of

Jackson County, Illinois and a registered Illinois

voter who voted in the 2020 congressional and

presidential elections. He intends to vote in the 2022

congressional election as well as the 2024 presidential

and congressional elections. He also is a multi-term

member of the United States House of

Representatives and represents Illinois’ 12th

Congressional District.

Congressman Bost

successfully ran for re-election in the November 3,

2020 federal election and currently is a candidate for

United States Representative for Illinois’ 12th

Congressional District during the November 8, 2022

federal election.

10. Plaintiff Laura Pollastrini is a resident of

Kane County, Illinois, and a registered Illinois voter

who voted in the 2020 congressional and presidential

elections.

She intends to vote in the 2022

congressional election as well as the 2024 presidential

and congressional elections.

Ms. Pollastrini is

currently the Illinois Republican State Central

83a

Committeeperson for the 14th Congressional District.

Ms. Pollastrini was appointed by the Illinois State

Republican Chairman both as Chairwoman for the

Illinois Republican’s Presidential Electors Committee

and as Republican presidential and vice-presidential

elector at-large for Illinois during the 2020

presidential election. As the Illinois Republican State

Central Committeeperson for the 14th Congressional

District during the 2020 general election, Ms.

Pollastrini

herself

appointed

a

Republican

presidential and vice-presidential elector for the 14th

Congressional District. Following redistricting, Ms.

Pollastrini intends to seek election as the Illinois

Republican State Central Committeeperson for the

new 11th Congressional District. Ms. Pollastrini also

intends to seek reappointment as the Chairwoman for

the Illinois Republican’s Presidential Electors

Committee in 2024. Ms. Pollastrini further intends to

seek reappointment as an at-large presidential and

vice-presidential elector for the November 5, 2024,

presidential election.

11. Plaintiff Susan Sweeney is a resident of Cook

County, Illinois, and a registered Illinois voter who

voted in the 2020 congressional and presidential

elections.

She intends to vote in the 2022

congressional election as well as the 2024 presidential

and congressional elections. Ms. Sweeney was a

Republican presidential elector during the 2020

presidential election. Ms. Sweeney intends to seek

reappointment as an Illinois presidential elector for

the November 5, 2024, presidential election.

12. Defendant Illinois State Board of Elections

(the “State Board”) is an independent state agency

created under the laws of the State of Illinois.

84a

Defendant State Board is responsible for supervising

the administration of election laws throughout

Illinois.

13. Defendant Bernadette Matthews is the

Executive Director of the Illinois State Board of

Elections and the Chief State Election Official of the

State of Illinois. 26 Ill. Adm. Code § 216.100(b)-(c); 52

U.S.C. § 20509. She is sued in her official capacity.

FACTS

14. The Illinois election code authorizes voting by

mail and further provides that vote-by-mail ballots

received “after the polls close on election day” but

before “the close of the period for counting provisional

ballots” shall be counted as if cast and received on or

before Election Day. See 10 Ill. Comp. Stat. Ann. §

5/19-8(c).

15. In Illinois, election officials shall complete

“the validation and counting of provisional ballots

within 14 calendar days of the day of the election.” 10

Ill. Comp. Stat. Ann. § 5/18A-15(a).

16. Read together, these two provisions mean

that vote-by-mail ballots received up to 14 calendar

days after the day of the election shall be counted as

if cast and received on or before Election Day.

17. Even vote-by-mail ballots without postmarks

shall be counted if received up to 14 calendar days

after Election Day if the ballots are dated on or before

election day. See 10 Ill. Comp. Stat. Ann. § 5/19-8(c).

18. For example, although Election Day for the

2020 federal elections was November 3, 2020, Illinois

law authorized the counting of vote-by-mail ballots

85a

received on or before November 17, 2020, even if those

ballots were not postmarked by Election Day.

19. On November 2, 2020, the State Board of

Elections issued a media advisory stating it had

received approximately 1,759,245 mailed ballots prior

to Election Day. 1 The Board further advised that the

number of ballots received after Election Day through

November 17, 2020, could materially affect the

unofficial election results. Specifically, the State

Board explained:

As mail ballots arrive in the days after

Nov. 3, it is likely that close races may

see leads change as results are reported.

Reporters should check with local

election authorities for updated vote

counts and make readers, viewers and

listeners aware of why these numbers

are changing.

Id.

20. In its December 4, 2020, press release

announcing certified results from the November 3,

2020 election, the State Board announced that there

had been a total of 6,098,729 votes in the 2020

election, of which 2,025,662 were vote-by-mail

ballots. 2

1 “Media Advisory: Heavy Mail Voting Could Affect Unofficial

Elections Results,” Illinois State Board of Elections, Nov. 2, 2020,

https://bit.ly/3y9qCWU, (last visited May 24, 2022).

2 “Record Number of Votes Cast, Turnout tops 2016 as Board of

Elections Certifies 2020 General Election Results,” Illinois State

Board of Elections, Dec. 4, 2020, https://bit.ly/3y9tumE (last

visited May 24,2022).

86a

21. Read together, the November 2nd and

December 4th press releases indicate that Illinois

received 266,417 vote-by-mail ballots statewide

during the period from November 3rd through

November 17th.

22. Upon information and belief, most of the

266,417 vote-by-mail ballots were received after

Election Day, which would mean that as many as

4.4% of votes cast in 2020 were received after Election

Day.

23. Illinois is not allowed to hold open voting for

congressional and presidential beyond the single

Election Day.

24. One editorialist recently satirized the

abandonment of a single national Election Day as

follows:

87a

25. The next federal election in Illinois will be

held on Tuesday, November 8, 2022, at which time

Illinois will elect a new Congressional delegation.

Under Illinois law’s extended ballot receipt deadline,

vote-by-mail ballots shall be counted if received on or

before November 22, 2022.

26. Accordingly, Illinois will illegally hold voting

open beyond Election Day on November 8, 2022.

27. Another federal election will be held in Illinois

on Tuesday, November 5, 2024, at which time Illinois

will elect its next slate of presidential and vicepresidential electors as well as a new Congressional

delegation. Under Illinois law’s extended ballot

receipt deadline, vote-by-mail ballots shall be counted

if received on or before November 19, 2024.

28. Accordingly, Illinois will hold voting open

beyond Election Day on November 5, 2024.

29. Counting ballots received after Election Day

harms Plaintiffs.

30. Among other harms, Plaintiffs votes will be

diluted by illegal ballots received in violation of the

federal Election Day statutes.

31. All Plaintiffs intend to vote and conduct their

prospective campaigns in accordance with federal

law.

32. Plaintiffs are entitled to have their elections

results certified with votes received in compliance

with the federal Election Day statutes.

33. Plaintiffs rely on provisions of federal and

state law in conducting their campaigns including, in

88a

particular, resources allocated to the post-election

certification process.

34. Counting untimely votes and those received

in violation of federal law substantially increases the

pool of total votes cast and dilutes the weight of

Plaintiffs’ votes. More votes will be counted than the

law allows to be counted, resulting in dilution.

35. Likewise, untimely votes will be counted after

the federal Election Day deadline, defined as “the

combined actions of voters and officials meant to

make a final selection of an officeholder.”

36. Plaintiffs will be subject to harms beyond

even these above-stated harms.

37. These harms are severe and irreparable.

COUNT I

Violation of the Right to Vote (42 U.S.C. § 1983)

38. Plaintiffs

allegations.

incorporate

all

their

prior

39. 10 Ill. Comp. Stat. Ann. § 5/19-8 requires

counties to hold open voting and count ballots

received after Election Day, in violation of 2 U.S.C. §

7 and 3 U.S.C. § 1.

40. Because counting ballots received after

Election Day violates 2 U.S.C. § 7 and 3 U.S.C. § 1,

any such ballots are untimely and therefore illegal

under 2 U.S.C. § 7 and 3 U.S.C. § 1.

41. Untimely 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

89a

cast and received on or before Election Day, including

Plaintiffs’ timely cast and received ballots.

42. By counting untimely and illegal ballots

received after Election Day and diluting Plaintiffs’

timely cast and received ballots, Defendants, acting

under color of Illinois law, have deprived and are

depriving Plaintiffs of rights protected under the First

Amendment and 14th Amendment to the U.S.

Constitution in violation of 42 U.S.C. § 1983.

43. Plaintiffs 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.

COUNT II

Violation of the Right to Stand for Office (42

U.S.C. § 1983)

44. Plaintiffs

allegations.

incorporate

all

their

prior

45. 10 Ill. Comp. Stat. Ann. § 5/19-8 requires

counties to hold open voting and count ballots

received after Election Day, including those without

postmarks.

46. Defendants, acting under color of Illinois law,

have deprived and are depriving Plaintiffs of rights

protected under the First and Fourteenth

Amendment to the U.S. Constitution in violation of 42

U.S.C. § 1983 by, inter alia, forcing Plaintiffs to spend

money, devote time, and otherwise injuriously rely on

unlawful provisions of state law in organizing,

funding, and running their campaigns.

90a

47. Defendants, acting under color of Illinois law,

have deprived and are depriving Plaintiffs of rights

protected under the First Amendment and 14th

Amendment to the U.S. Constitution in violation of 42

U.S.C. § 1983.

48. Plaintiffs 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.

COUNT III

Violation of 2 U.S.C. § 7 and 3 U.S.C. §1

49. Plaintiffs

allegations.

incorporate

all

their

prior

50. 2 U.S.C. §7 provides that “[t]he Tuesday next

after the 1st Monday in November, in every even

numbered year, is established as the day for the

election, in each of the States and Territories of the

United States, of Representatives and Delegates to

the Congress commencing on the 3d day of January

next thereafter.”

51. 3 U.S.C. §1 provides that “[t]he electors of

President and Vice President shall be appointed, in

each State, on the Tuesday next after the first

Monday in November, in every fourth year succeeding

every election of a President and Vice President.”

52. By its terms 2 U.S.C. § 7 requires that the

2022 general election for Representatives to the

Congress be consummated on Election Day,

November 8, 2022 and Election Day, November 5,

2024.

91a

53. Under Illinois law’s extended ballot receipt

deadline, vote-by-mail ballots shall be counted if

received on or before November 22, 2022, in violation

of 2 U.S.C. § 7’s Election Day mandate.

54. By its terms 3 U.S.C. § 1 requires that the

2024 general election for Presidential electors be

consummated on Election Day, November 5, 2024.

55. Under Illinois law’s extended ballot receipt

deadline, vote-by-mail ballots shall be counted if

received on or before November 19, 2024, in violation

of 3 U.S.C. § 1’s Election Day mandate.

56. Illinois law permitting vote-by-mail ballots,

including those without postmarks, to be counted if

they are received fourteen days after Election Day

violates 2 U.S.C. § 7 and 3 U.S.C. § 1.

57. A qualified ballot for federal office is not a

legal vote unless it is received by Election Day.

58. State law or practice that holds open voting

14 after Election Day is invalid and void as

superseded under 2 U.S.C. § 7 and 3 U.S.C. § 1.

59. Defendants have acted and will continue to

act under color of state law to violate 2 U.S.C. § 7 and

3 U.S.C. § 1.

60. Plaintiffs 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.

92a

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for entry of a judgment

granting:

a. A declaratory judgment that the relevant

parts of 10 Ill. Comp. Stat. Ann. § 5/19-8 identified

herein deprive Plaintiffs, under color of State law, of

rights secured by the Constitution of the United

States and by Acts of Congress;

b. A

permanent

injunction

prohibiting

Defendants from enforcing the relevant parts of

Illinois law, including 10 Ill. Comp. Stat. Ann. § 5/198, as identified herein;

c. Plaintiffs’ reasonable costs and expenses,

including attorneys’ fees; and

d. All other relief that Plaintiffs are entitled to,

and that the Court deems just and proper.

May 25, 2022

s/ Christine Svenson

Christine Svenson, Esq.

(IL Bar No. 6230370)

SVENSON LAW OFFICES

345 N. Eric Drive

Palatine IL 60067

T: 312.467.2900

christine@svensonlawoffices.com

T. Russell Nobile*

JUDICIAL WATCH, INC.

Post Office Box 6592

Gulfport, Mississippi 39506

93a

Phone: (202) 527-9866

rnobile@judicialwatch.org

Paul J. Orfanedes (IL Bar No. 6205255)

Robert D. Popper*

Eric W. Lee*

JUDICIAL WATCH, INC.

425 Third Street SW, Suite 800

Washington, DC 20024

Phone: (202) 646-5172

porfanedes@judicialwatch.org

rpopper@judicialwatch.org

elee@judicialwatch.org

* Application for admission pro hac vice forthcoming