The Supreme Court on Wednesday signaled it would likely revive a lawsuit from an Illinois Republican congressman challenging a state law that allows mail-in ballots to be counted after Election Day. The decision could clear the way for his case to proceed after being dismissed by lower courts.
The appeal from Rep. Michael Bost focuses on a technical but critical legal question: whether federal candidates have the right, or “standing,” to sue over election regulations, even if they are heavily favored to win in a safe district. While the immediate issue is procedural, the outcome could have sweeping implications for election litigation, potentially opening federal courts to a wider array of challenges against voting rules.
A federal appeals court in Chicago had previously halted Bost’s lawsuit, ruling he lacked standing because he could not demonstrate a “concrete” and “particularized” injury. In federal court, plaintiffs must prove such an injury for a case to move forward. Bost contends that being a candidate should automatically confer standing to challenge election laws. Conversely, Illinois officials argued that candidates must show a contested rule could plausibly cause them to lose an election.
During nearly two hours of arguments, a majority of the court’s conservative justices appeared skeptical of the state’s position, expressing concern that it would force judges to predict a candidate’s chances of winning. Chief Justice John Roberts called this prospect a “potential disaster.”
“You’re saying if the candidate is going to win by 64 percent, no standing. But if the candidate hopes to win by a dozen votes…then he has standing,” Roberts said to an attorney for the Illinois State Board of Elections. He added that such a standard would require the court to make political determinations at “the most fraught time for the court to get involved in electoral politics.”
Justice Brett Kavanaugh echoed these concerns, repeatedly questioning what would happen if major voting cases were delayed until after an election. At that point, a losing candidate could more easily establish an injury, but a court ruling could risk invalidating votes already cast. “If we’re not thinking ahead to that,” Kavanaugh warned, “we’re going to walk into something.”
Bost filed his suit in 2022, arguing that Illinois’s law allowing mail-in ballots to arrive up to two weeks after Election Day, as long as they are postmarked on or before that day, conflicts with the federal law establishing a uniform election day. To demonstrate a direct injury, Bost also noted his campaign must pay staff for two additional weeks to monitor the extended ballot-counting period. Justice Samuel Alito suggested this financial cost alone seemed to be a “straightforward” injury that should allow the suit to proceed.
Representing the court’s liberal wing, Justice Elena Kagan framed the case as a “suit in search of a problem.” She pointed out that voters, political parties, and other groups already file numerous election lawsuits, suggesting the system functions without special rules for candidates. “There are perfectly easy ways for a party to say why a new rule is going to harm them,” Kagan said, adding that it seemed Bost was “asking to create a whole new set of rules when everything has been proceeding just fine.”
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