Republican Illinois congressman takes grievance against mail-in ballots to Seventh Circuit

Nobile stuck to his guns despite Lee's criticism. He compared Bost's supposed monetary injuries to those of GOP Texas Senator Ted Cruz in the 2022 Supreme Court case FEC v. Ted Cruz for Senate.

That case centered on Cruz's election campaign suing the Federal Election Commission over the Bipartisan Campaign Reform Act of 2002. The act states that election campaigns can only use pre-election campaign contributions to pay back loans from their candidates exceeding $250,000 within 20 days of the election; after that, any portion of a contribution over $250,000 is barred from repayment.

Cruz lost $10,000 after his 2018 Senate reelection campaign committee began repaying his $260,000 loan after the 20-day deadline, leading to the suit. In May 2022 the Supreme Court came down 6-3 in Cruz's favor along ideological lines, finding the 2002 act's limit on loan repayments unconstitutionally burdened political speech. 

"The Supreme Court said, even if it's willingly incurred, even if they knowingly triggered the injury... it's fairly traceable to the regulation," Nobile argued Thursday. 

U.S. Circuit Judge Michael Scudder, a Donald Trump appointee, also went to the merits of the issue by questioning if the extended ballot deadline could accommodate military personnel serving abroad. Nobile dismissed arguments to that effect as straw men, claiming he'd spent years ensuring soldiers and overseas citizens had access to ballots. 

"The concern about military ballots is obviously a valid concern, everyone takes that seriously." Nobile responded. "We would not have brought this case if we thought there was a serious risk. I can emphatically say that the Uniformed and Overseas Citizens Absentee Voting Act issues raised by some of my colleagues are straw men."

Illinois Deputy Solicitor General Alex Hemmer, representing the state election board, addressed the merits of Bost's position first thing in his own arguments. He argued nothing in federal election law barred states from counting ballots received after election day, so long as those ballots were postmarked on or before election day. 

"Indeed over half the states count such ballots under at least some circumstances. No court has ever held, or even so much as hinted, that federal law prohibits those states from making that choice," Hemmer argued. 

He went on to say that Bost's arguments stood on a shaky foundation, relying primarily on an "opportunistic" reading of history and the 1997 Supreme Court case Foster v. Love. Bost did highlight that case in his appellate brief; in it, the Supreme Court unanimously decided that Louisiana's former open primary system, established in 1975, violated the federal election day statute.

The system established that a November general election vote wasn't necessary for any senate or congressional candidate who won a majority of the vote in an October open primary, one where all candidates appeared on the ballot regardless of party, and all voters could vote.   

Hemmer argued the Supreme Court took extraordinary pains to emphasize that its decision in Foster was a narrow one applying specifically to the Louisiana open primary system, and didn't preclude early voting or mail-in ballots.

"Foster says nothing at all about mail-in voting and says nothing at all about the counting of ballots after election day," Hemmer said.

Hemmer also touched on the issue of standing. While Nobile focused on Bost's alleged injuries as a political candidate, Hemmer broached the issue of their standing as voters. As voters themselves, he argued, it made no sense for Bost and his co-plaintiffs to claim injury over a law that made voting easier.

"Voters aren't injured by a law that makes it easier for other voters to cast ballots. And plaintiffs haven't alleged injuries sufficient to give rise to Article III standing as candidates for public office," Hemmer said. 

The appellate panel were more amenable to Hemmer's arguments than they were to Nobile's and stayed mostly silent as the deputy solicitor general delivered his remarks.

It wasn't until Hemmer was nearing the end of his time that Judge Scudder posed him with a decidedly wonkish hypothetical regarding appellate jurisdiction. It referenced how a major part of Kness' dismissal of the case in the district court was "lack of jurisdiction based on standing," meaning the dismissal was without prejudice.

"Assume we disagree with you on standing. And assume we go to the merits. OK? And assume we agree with you on the merits. What about the failure to file a cross-appeal vis-a-vis appellate jurisdiction?" Scudder asked. 

Hemmer seemed perplexed by the question; Scudder admitted it was a difficult one to answer. The attorney came to the conclusion that Kness made the right decision jurisdictionally, given that his 2023 ruling came down so heavily in the state's favor. 

"I think Judge Kness did the right thing here in saying, 'Well, because I agree with the state both on standing as well as the merits, I'm going to make the dismissal without prejudice,'" Hemmer said.

The appellate panel, rounded out by U.S. Circuit Judge Michael Brennan, another Donald Trump appointee, took the case under advisement but didn't say when it would issue a ruling. 

Follow @djbyrnes1

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