Bost v. Illinois State Board of ElectionsBost v. Illinois State Board of Elections
MEMORANDUM OPINION & ORDER
This case challenges an Illinois election statute that governs the time for counting
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.
Congress has since exercised its Constitutionally-conferred legislative power to set what has become one “Election Day” for the entire country.
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
In Illinois, the time for counting ballots received after the date of a federal election is governed by statute (
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
In an effort to realize these Constitutional and statutory claims, Plaintiffs have sued the Illinois State Board of Elections (“State Board“)—which is responsible for supervising the administration of election laws in Illinois—and its Executive Director, Bernadette Matthews (in her official capacity). Plaintiffs seek a declaratory judgment that the Ballot Receipt Deadline Statute deprives them of their Constitutional rights and injunctive relief to permanently enjoin enforcement of the Statute. (Dkt. 1 at 11.)
Now before the Court is Defendants’ motion to dismiss for lack of jurisdiction and for failure to state a claim upon which relief can be granted.1 (Dkt. 25.) In
Plaintiffs disagree and contend that, because state laws in conflict with federal election laws inflict the judicially-cognizable injury of endangering the right to vote, they do indeed have standing. (Dkt. 43 at 4.) Plaintiffs also argue that their candidacy-related injuries are independently sufficient to confer Article III standing,
as the unnecessary expenditure of campaign money is both concrete and particularized. As for the Eleventh Amendment, Plaintiffs maintain that the “plan of the Convention” doctrine renders the Eleventh Amendment inapplicable. Finally, Plaintiffs insist that they have pleaded a viable claim based on Illinois law permitting voting beyond Election Day in violation of federal election law. These arguments are addressed in turn.
II. STANDARD OF REVIEW
A. Standing
It is a truism that Article III of the Constitution requires an actual case or controversy between the parties. Deveraux v. City of Chicago, 14 F.3d 328, 331 (7th Cir. 1994). As part of that requirement, plaintiffs seeking to have a case heard in federal court must demonstrate that they have standing to sue. In particular, plaintiffs must show (1) that they suffered a concrete and particularized injury in fact; (2) a causal connection between the injury and the challenged conduct of the defendant; and (3) that the injury will be likely redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Because “[s]tanding is an essential component of Article III‘s case-or-controversy requirement,” defendants may seek the dismissal of nonjusticiable claims through a Rule 12(b)(1) motion for lack of subject matter jurisdiction. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (quoting Lujan, 504 U.S. at 561).
A Rule 12(b)(1) motion challenges the Court‘s subject matter jurisdiction over the case.
B. The Eleventh Amendment
Under the Eleventh Amendment to the Constitution, states (and their officers) are generally protected from suit. As a “general rule,” private individuals “are unable to sue a state in federal court absent the state‘s consent.” McDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1049 (7th Cir. 2013). That protection extends to state agencies and state officials acting in their official capacities. Indiana Prot. & Advocacy Servs. v. Indiana Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010).
An exception to the Eleventh Amendment‘s general bar on suits against states and their agencies can be found under the “plan of the Convention” doctrine. Alden v. Maine, 527 U.S. 706, 729-30 (1999) (quoting Principality of Monaco v. State of Mississippi, 292 U.S. 313, 323-24 (1934)). Under that doctrine, the sovereign immunity afforded to States by the Eleventh Amendment will cease where a “fundamental postulate implicit in the constitutional design” begins. PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2258 (2021). Because the Eleventh Amendment confirmed, rather than established, sovereign immunity, the scope of the States’ immunity from suit is not demarcated by the text of the Eleventh Amendment itself but rather by fundamental postulates implicit in the design of the Constitution. Alden, 527 U.S. at 729-30. In other words, the federal government “is invested with full and complete power to execute and carry out [the Constitution‘s] purposes,” and if a state interferes with that power, that state may not assert sovereign immunity from suit in federal court. PennEast, 141 S. Ct. at 2259.
C. Motion to Dismiss for Failure to State a Claim
A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Ord. of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Each complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). These allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put another way, the complaint must present a “short, plain, and plausible factual narrative that conveys a story that holds together.” Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 777 (7th Cir. 2022) (cleaned up). In evaluating a motion to dismiss, the Court must accept as true the complaint‘s factual allegations and draw reasonable inferences in the plaintiff‘s favor. Iqbal, 556 U.S. at 678. But even though factual allegations are entitled to the assumption of truth, mere legal conclusions are not. Id. at 678-79.
III. DISCUSSION
A. Plaintiffs Lack Standing to Bring This Suit
To bring a suit in federal court, the party suing must establish that it has standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). To establish standing, a plaintiff must prove that he has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Of these three elements, injury in fact is often the most significant hurdle for a plaintiff to clear in the standing analysis. To show injury in fact, Plaintiffs must establish three sub-elements: first, the “invasion of a legally protected interest“; second, that the injury is both “concrete and particularized“; and third, that the injury is “actual or imminent, not conjectural or hypothetical.” Spokeo, 578 U.S. at 339. The first sub-element—invasion of a
Plaintiffs present three harms that they allege are sufficient to confer standing: the Ballot Receipt Deadline Statute‘s alleged facial conflict with federal law, vote dilution, and Congressman Bost‘s injuries as a candidate. Each of these alleged harms and whether they are sufficient to confer Article III standing are addressed in turn.
1. Alleging Conflict with the Elections Clause Is not a Concrete and Particularized Injury.
Defendants first argue that Plaintiffs do not have standing because the asserted injuries are not sufficiently concrete and particularized. (Dkt. 26 at 5.) Defendants state that Plaintiffs merely assert a disagreement with the Ballot Receipt Deadline Statute and fail to explain why it harms them specifically in a way that differs from Illinois voters generally. (Dkt. 26 at 5, 7.) Plaintiffs respond that their alleged vote dilution injury is sufficiently concrete and particularized. (Dkt. 43 at 5-8.) Plaintiffs also assert that, even if the Plaintiffs’ facial challenge to the statute and vote dilution injuries are insufficiently concrete and particularized, they still have standing based on the Congressman Bost‘s injury. Congressman Bost‘s campaign-resource injury is, they argue, concrete and particularized because it is specific to Congressman Bost as a candidate. (Id. at 8-9.)
To adequately plead an injury in fact sufficient for Article III standing, the alleged injury must be “concrete and particularized.” A “generalized grievance” is insufficient to confer standing. If a party‘s injury is a “grievance shared . . . by all or a large class of citizens,” it is generalized and insufficient for standing. Warth v. Seldin, 422 U.S. 490, 499 (1975).
A plaintiff cannot show a concrete and particularized injury sufficient for standing by showing a mere “general interest common to all members of the public.” Ex parte Levitt, 302 U.S. 633, 634 (1937). As the Supreme Court explained nearly 50 years ago, an allegation relating to the general conduct of government is not generally concrete and particularized enough to satisfy the injury in fact requirement. United States v. Richardson, 418 U.S. 166, 174 (1974); see also Bognet v. Sec‘y Commonwealth of Pa., 980 F.3d 336, 349 (3d Cir. 2020) (“[P]rivate plaintiffs lack standing to sue for alleged injuries attributable to a state government‘s violations of the Elections Clause.“). If a plaintiff offers only a generally available grievance about government, claiming only “harm to his and every citizen‘s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—[the plaintiff] does not state an Article III case or controversy.” Lujan, 504 U.S. at 573-74.
One component of Plaintiffs’ standing theory is that the Ballot Receipt Deadline Statute conflicts with
Courts faced with similar allegations have rejected plaintiffs’ claims that they possessed standing. This type of injury is the kind of generalized grievance that is insufficient to confer standing. In Lance v. Coffman, for example, the Supreme Court considered the challenge of four Colorado voters to the redistricting provision of the Colorado Constitution. Those Plaintiffs alleged that the provision conflicted with the Elections Clause of the United States Constitution. 549 U.S. 437, 441-42 (2007). But the Supreme Court disagreed and explained that a bare allegation that the Elections Clause has not been followed is “precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past[;] . . . plaintiffs assert no particularized stake in the litigation.” Id. at 442.
Plaintiffs’ complaint echoes the allegations in Lance. Plaintiffs’ Elections Clause claims allege a general interest that every citizen shares in the proper application of the Constitution and the laws of the United States. Lujan, 504 U.S. at 560-61. Seeking relief for this grievance no more “directly and tangibly benefits [Plaintiffs] than it does the public at large” and thus “does not state an Article III case or controversy.” Id. at 573-74. Put differently, were Plaintiffs (acting as voters) to succeed in making Illinois voting laws comply with federal law, that benefit would redound benefit equally to all voters—not merely to Plaintiffs specifically.
Plaintiffs cite a variety of cases in support of their standing argument (Dkt. 43), but those cases do not squarely address the issue of standing. See, e.g., Foster v. Love, 533 U.S. 67 (1997).2 In particular, Plaintiffs cite Judge v. Quinn, which Plaintiffs contend is analogous to this case. Plaintiffs assert that the injuries they allege are “consistent with the injuries that led this Court in 2009 to find that
different voters had standing to challenge a special election date chosen to fill the Senate seat vacated by then-President-elect Obama.” (Dkt. 43 at 6) (citing Judge v. Quinn, 623 F. Supp. 2d 933, 934 n.3 (N.D. Ill. 2009)). But the court in Judge did not undergo an extensive standing analysis—standing was instead relegated to a single footnote in which the court said it “concur[red] with the parties’ apparent agreement that plaintiffs have standing.” Id. This brief acknowledgment of standing is the exact kind of drive-by jurisdictional ruling that the Supreme Court has cautioned courts to avoid treating as precedential. Citizens for a Better Env‘t, 523 U.S. at 91. Accordingly, Judge does not show that Plaintiffs have standing.
Plaintiffs’ claims are, in any event, distinguishable from those in Judge. Those plaintiffs challenged then-Governor
Plaintiffs’ contention that the Ballot Receipt Deadline Statute inflicts an injury sufficient to confer Article III standing fails because it is not specific to Plaintiffs. The alleged conflict with the Elections Clause is same kind of injury that the Supreme Court found too undifferentiated to confer standing in Lance. Further, the cases Plaintiffs cite to support a finding of standing do not engage in a standing analysis and are factually distinguishable. For all of these reasons, therefore Plaintiffs fail to allege a particularized injury.
2. Plaintiffs’ Vote Dilution Claim is Insufficient to Confer Standing.
Plaintiffs also allege that the Ballot Receipt Deadline Statute dilutes their votes and state that this alleged harm is sufficient to confer standing. Plaintiffs contend that by counting ballots received after Election Day, their ballots, presumably cast on or before Election Day and received on or before Election Day, are diluted. In contrast, Defendants state that the vote dilution claim is not concrete and particularized enough to meet Article III‘s requirements.
Plaintiffs’ vote dilution claim is similar to the vote dilution claim at issue in Feehan v. Wisconsin Election Commission, 506 F. Supp. 3d 596 (E.D. Wis. 2020). In Feehan, the Plaintiff alleged that Wisconsin‘s election policies diluted his vote in violation of the Constitution. More specifically, the plaintiff alleged “massive election fraud” in violation of the Election, Electors, and Equal Protection Clauses of the Constitution. Id. at 601. The plaintiffs sought a declaratory judgment that Wisconsin‘s signature verification violated the Constitution and that mail-in and absentee ballot fraud occurred in the 2020 election. Id. at 602. They also sought a permanent injunction prohibiting the Wisconsin governor and secretary of state from transmitting the certified election results to the Electoral College. Id. Feehan‘s plaintiffs thus maintained that their alleged vote dilution injury was sufficient for Article III standing. But the Feehan court disagreed and held that the injuries claimed were “too speculative and generalized” because they were “injuries that any Wisconsin voter suffers.” Id. at 609.
Courts outside this Circuit have agreed that claims of vote dilution based on the existence of unlawful ballots fail to establish standing. For example, the district court for the Middle District of North Carolina held that in “vote dilution cases arising out of the possibility of unlawful or invalid ballots being counted,” the harm alleged “is unduly speculative and impermissibly generalized because all voters in a state are affected.” Moore v. Circosta, 949 F. Supp. 3d 289, 312-13 (M.D.N.C. 2020). Although Moore did not go so far as to say that no statewide election law could ever be challenged “simply because it affects all voters,” Moore explained that “the notion that a single person‘s vote will be less valuable as a result of unlawful or invalid ballots being cast is not the concrete and
Plaintiffs’ vote dilution claim is effectively the same as the vote dilution claims in Feehan and Moore. In Count I of the complaint, Plaintiffs allege that “[u]ntimely and illegal ballots received and counted after Election Day pursuant to
Plaintiffs suggest the dilution posed by the Ballot Receipt Deadline Statute violates the Elections Clause, but, as in Moore and Feehan, Plaintiffs do not allege an injury beyond the general grievance that all Illinois voters would share if that were the case.
To be sure, the plaintiffs in Feehan, unlike here, sought to decertify election results, and thus Plaintiffs argue that their claim is distinct from the underlying claim in Feehan. (Dkt. 43 at 11-12). But that is a distinction without a difference, as both the claims here and in Feehan are the same on a legal level: they both allege that the election process is “riddled with illegality,” thus diluting their right to vote. Feehan, 506 F. Supp. 3d at 609.
More broadly, Plaintiffs assert that a ruling for Defendants on the standing issue would give rise to an untenable situation in which voters will never have standing to challenge gross abuses of state power. Plaintiffs compare this case to a situation in which “Illinois granted citizens of France the right to vote in its federal elections.” (Dkt. 43 at n.6.) In Plaintiffs’ example, were Defendants’ reasoning to prevail, the result would be that “no private citizen would have standing to challenge the French ballots.” (Id.)
Although Plaintiffs’ hypothetical concerning illegitimate French voters raises a sincere question about the limits of the doctrine of standing, it ultimately strays too far from the context of this case to be genuinely illustrative. Contrary to Plaintiffs’ conceptualization, a vote dilution claim under the Equal Protection Clause is about votes being weighted differently to the disadvantage of an identifiable group. Bognet, 980 F.3d at 355. That is, a vote dilution claim is about certain votes being given less value than others, and such claims typically arise in the context of redistricting disputes. Federal courts have thus declined to apply the doctrine of vote dilution to voter fraud allegations, e.g., Bowyer v. Ducey, 506 F. Supp. 3d 699, 711 (D. Ariz. Dec. 9, 2020), because an increase in the pool of voters generally does not constitute vote dilution. Absent any suggestion that our hypothetical, carpetbagging French voters diluted the votes of another identifiable group of legitimate voters, current standing doctrine does not support Plaintiffs’ claims. Further, Plaintiffs’ hypothetical depends on evidence of illegal votes actually being cast. (Dkt. 43 at 6 n.1.) But Plaintiffs do not allege that any illegal ballots were cast in any election—they merely suggest the possibility of such votes being counted. The lack of any such allegation distinguishes Plaintiffs’ allegations from the French voter hypothetical. Put another way, to the extent there is an outer boundary at which the counting of wholly illegal ballots cast by noncitizens amounts to a cognizable claim of vote dilution for which standing would exist, Plaintiffs’ claims here do not come close to reaching it.
3. Congressman Bost‘s Stated Financial Injuries Are Too Speculative to Confer Standing.
In addition to Plaintiffs’ vote dilution claims, Congressman Bost alleges that Defendants are depriving him of his right to stand for office by enforcing the Ballot Receipt Deadline Statute. (Dkt. 1 ¶¶ 44-48.) Congressman Bost argues that because he is forced to spend significant resources running his campaign for an additional two weeks after Election Day, his injury, unlike the other injuries alleged in the complaint, is necessarily concrete and particularized. (Dkt. 43 at 8.) Defendants counter that Congressman Bost‘s injury, although perhaps concrete, is not particularized because all federal candidates in Illinois are affected by the Statute in the same way. (Dkt. 26 at 9.) Defendants also argue that Congressman Bost‘s claim is speculative because the claimed effect of the Statute on his ability to win re-election is based on a “chain of possibilities.” (Id. at 10.)
By its terms, the Ballot Receipt Deadline Statute affects all federal candidates equally. All candidates in Illinois, including Congressman Bost‘s opponent, are subject to the same Illinois election rules. See Bognet, 980 F.3d at 351 (candidate-plaintiff did not have standing when his objection to state election rules applied to all candidates). Congressman Bost does not allege how his right to stand for office is particularly affected compared to his opponents. Id. For example, Congressman Bost does not allege that the ballots cast after Election Day are more likely to be cast for his opponent. Because the alleged injury is not particularized to Congressman Bost, it is insufficient to confer standing.
But even if Congressman Bost‘s financial injury is concrete and particularized, his claim is still speculative. An injury in fact, in addition to being concrete and particularized, must be “actual or imminent.” Clapper v. Amnesty Int‘l. USA, 568 U.S. 398, 409 (2013). In practice, that means that a threatened injury must be “certainly impending” to constitute an injury in fact, not merely “possible.” Id. For example, a plaintiff cannot “manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending.” Id. at 416.
Congressman Bost‘s harm—spending more resources on the election—is not certainly impending. Congressman Bost asserts that he will be forced to spend money to avoid the alleged speculative harm that more ballots will be cast for his opponents. There is, however, no reason to believe that these alleged future expenditures are anything but speculative. See Bognet, 980 F.3d at 352. (“The same can be said for Bognet‘s alleged wrongfully incurred expenditures and future expenditures. Any harm Bognet sought to avoid in making those expenditures was not ‘certainly impending‘—he spent the money to avoid a speculative harm.“); see also Donald J. Trump for Pres., Inc. v. Boockvar, 493 F. Supp. 3d 331, 380-81 (W.D. Pa. 2020). It is mere conjecture that, if Congressman Bost does not spend the time and resources to confer with his staff and watch the results roll in, his risk of losing the election will increase. Under the letter of Illinois law, all votes must be cast by Election Day, so Congressman Bost‘s electoral fate is sealed at midnight on Election Day, regardless
Plaintiffs cite to Carson v. Simon to support their argument that Congressman Bost has standing. (Dkt. 43 at 9) (citing Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020)). In Carson, Minnesota presidential electors challenged a decree issued by the Minnesota Secretary of State that unilaterally rendered the statutorily-mandated absentee ballot receipt deadline inoperative. Carson, 978 F.3d at 1054. The district court found that the electors lacked standing, but the Eighth Circuit reversed. Id. at 1059.
Carson is distinguishable. Its elector-plaintiffs challenged a consent decree that contradicted state law; they did not (as Plaintiffs do here) seek to challenge a statute passed by the state legislature and signed into law by the governor. Carson‘s electors were concerned that ballots cast in direct conflict with state law would be counted as legitimate votes. Plaintiffs here acknowledge that ballots received up to fourteen days after Election Day are valid under Illinois state law. In any event, Carson was decided over a dissent, which argued the plaintiffs’ claims concerning an ” ‘inaccurate vote tally’ . . . appear[ed] to be precisely the kind of undifferentiated, generalized grievance about the conduct of government that the Supreme Court has long considered inadequate for standing.” Carson, 978 F.3d at 1063 (Kelly, J., dissenting) (cleaned up). That concern over an undifferentiated grievance based on an inaccurate vote tally rings true here as well. Accordingly, the Court declines to follow Carson.
In short, Congressman Bost‘s alleged financial injury is not concrete and particularized and is speculative. Accordingly, it insufficient to demonstrate standing under Article III.
B. The Eleventh Amendment Separately Bars Plaintiffs’ Suit
Apart from standing, Defendants also argue that the Eleventh Amendment bars Plaintiffs’ various claims. (Dkt. 26 at 11.) Under the Eleventh Amendment, a state that does not consent to suit in federal court is immune from most claims, unless
Congress has abrogated its immunity. Carmody v. Bd. of Trs. of Univ. of Ill., 893 F. 3d 397, 403 (7th Cir. 2018). Such immunity, however, does not exist if “the State consents to the suit or Congress has abrogated their immunity.” Tucker v. Williams, 682 F. 3d 654, 658 (7th Cir. 2017). Eleventh Amendment immunity from suit in federal court extends to “arms of the state“—meaning state agencies. Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir. 2005). Under this broad immunity, states and their arms are not generally “persons” subject to suit under
Plaintiffs respond that courts in this District have previously rejected immunity arguments in Elections Clause suits because the Elections Clause falls under the “plan of Convention” exception to Eleventh Amendment immunity. (Dkt. 43 at 13.) Under the “plan of Convention” doctrine, Eleventh Amendment immunity ceases where a “fundamental postulate implicit in the constitutional design” is at issue. PennEast Pipeline Company, LLC v. New Jersey, 141 S. Ct. 2244, 2258 (2021). In practice, this means that the federal government has “full and complete power” to carry out the Constitution, and when a state interferes with the exercise of that power, the sovereign immunity defense is not available. Id. at 2259.
Plaintiffs’ cited authority applying the plan of Convention doctrine is distinguishable. Public Interest Legal Found. v. Matthews, No. 20-3190, 2022 U.S. Dist. LEXIS 40640 (C.D. Ill. March 8, 2022) and Illinois Conservative Union et al. v. Illinois et al., No. 20-cv-05542, 2021 WL 2206159 (N.D. Ill. Sept. 28, 2021) both center on the National Voter Registration Act (NVRA). In those cases, the courts found that the plan of Convention doctrine applied because, by passing the NVRA, Congress “act[ed] pursuant to its power under the Elections Clause.” Public Interest Legal Found., 2022 U.S. Dist. LEXIS 40640 at *4; see also Ill. Conservative Union et al., 2021 WL 2206159, at *6. By acting under this power, Congress superseded all conflicting state laws. Unlike those cases, though, here there is no intervening federal law showing that the Ballot Receipt Deadline Statute conflicts with the Elections Clause. Those cases, therefore, do not govern the outcome here.
Because the Ballot Receipt Deadline Statute does not fall under the plan of Convention doctrine, Plaintiffs’ argument that their claims are exempted from Eleventh Amendment immunity fail. Plaintiffs do not contest that the Illinois State Board of Elections is an arm of the state covered by the Eleventh Amendment and do not argue that any other Eleventh Amendment exception applies. Accordingly, and apart from the issue of standing, the Eleventh Amendment independently bars Plaintiffs’ suit.
C. Plaintiffs Separately Fail to State a Claim Upon Which Relief Can Be Granted
1. Plaintiffs Do not Allege Plausible Claims Under 2 U.S.C. § 7 or 3 U.S.C. § 1 .
Assuming Plaintiffs had standing to bring their
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).
Plaintiffs allege that the Ballot Receipt Deadline Statute violates
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
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
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.
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,
Plaintiffs also do not allege the presence of arbitrary and disparate treatment. Plaintiffs bring only a facial challenge to the Ballot Receipt Deadline Statute. Put differently, for Plaintiffs’ as-pleaded theory to be plausible, it would have to be possible for the statute, as it is written, to allow Illinois election officials to count mail-in ballots that are cast after Election Day. But the text of the Statute does not permit that result. All ballots cast by Election Day are treated the same under the Statute‘s plain text. Untimely ballots, i.e., those not cast on or by Election Day, are not counted.
More broadly, Plaintiffs consistently—and wrongly—conflate “voting” with “counting votes.” The word “voting” as used in this case is a gerund; that is, a word derived from a verb that functions as a noun. As a derivative of the verb “to vote,” “voting” refers to a specific act: casting a vote. Under the Ballot Receipt Deadline Statute, the voting deadline is unambiguous: the act of voting must take place on or before Election Day.
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
Plaintiffs allege that the Ballot Receipt Deadline Statute forces Congressman Bost and other candidates “to spend money, devote time, and otherwise injuriously rely on unlawful provisions of state law in organizing, funding, and running their campaigns.” (Dkt. 1 ¶ 46.) Plaintiffs do not, in connection with their right to stand for office claim, explain why the Statute constitutes an invalid regulation of the times, places, and manner of federal elections. Instead, Plaintiffs merely set forth their reasons why the Statute could make standing for federal office in Illinois more challenging.
These allegations do not assert a plausible claim that the Ballot Receipt Deadline Statute impairs the right to stand for office. Spending time and money on campaigning is an inevitable feature of running for office, and Plaintiffs do not contend that the extra time and money they might have to spend due to the Statute prevents them from standing for office at all. For these reasons, Plaintiffs’ “right to stand for office” claim is unavailing.
IV. CONCLUSION
Plaintiffs lack standing to sue, the Eleventh Amendment is a bar to suit, and the Complaint fails to state a claim upon which relief can be granted. Defendants’ motion to dismiss is therefore granted, and the case is dismissed. Because the principal basis for dismissal is a lack of jurisdiction based on standing, this dismissal is without prejudice. See McHugh v. Ill. Dep‘t of Transp., 55 F.4th 529, 533 (7th Cir. 2022) (dismissals based on lack of subject matter jurisdiction and Eleventh Amendment immunity must be without prejudice).
SO ORDERED in No. 22-cv-02754.
Date: July 26, 2023
JOHN F. KNESS
United States District Judge