The U.S. Supreme Court heard arguments Wednesday in an Illinois Republican congressman’s case challenging a state law on mail-in ballots.
In 2022, U.S. Rep. Mike Bost, R-Murphysboro, sued over an Illinois law allowing mail-in ballots to count up to two weeks after they arrive at a local election authority. The ballots still have to be postmarked on or before Election Day to count.
“Those unlawful ballots could cost Congressman Bost the election, or at least reduce his margin of victory, and he has to pay his campaign staff for two extra weeks,” said Paul Clement, one of Bost’s attorneys.
Lower courts ruled that Bost didn’t have standing to bring the lawsuit, primarily because he couldn’t prove that the law hurt his ability to get elected. Clement said that opinion was wrongheaded, because it “needlessly injects federal courts into the role of political prognosticators.”
“It risks denying judicial access to minor party candidates, and it shuffles election disputes into the closest races and the worst possible context election disputes after the election, where federal courts are in the uncomfortable position of having to pick the political winners,” Clement said. “There is a better way, and it simply requires acknowledging that candidates have a unique, concrete and particularized interest in the rules of the electoral road.”
Justice Elena Kagan, though, said the lawsuit is “in search of a problem.”
“Every battleground state we get to see how litigation plays out ... asserting that a new rule is invalid for some reason or other,” Kagan said. “And those suits are never tossed because of standing, because there are easy assertions to make in a complaint about why a new rule is going to hurt you in the electoral process.”
Illinois Solicitor General Nancy Notz told the justices that if Bost’s challenge is successful, “it would cause chaos for election officials, while saddling federal courts with resolving abstract policy disputes.”
“His invocation of the possibility of a reduced margin of victory fails at the start,” Notz said. “Bost’s desire to run up the score is not a concrete injury that history and tradition shows can support standing to sue.”
More specifically, Notz said that Bost’s likelihood of losing reelection because of this new law is remote – given that he’s consistently won election since the 1990s and the 12th Congressional District is strongly Republican.
“We are dealing with a very experienced and successful candidate,” Notz said. “Congressman Bost has been successfully running for election for 30 years.”
That drew skepticism from Justice Brett Kavanaugh.
“When you run for election for 30 years and win, sometimes you act as if you have no risk of losing,” Kavanaugh said. “And you know what happens? Then you lose.”
And Chief Justice John Roberts also said he took issue with whether a candidate only has standing if they’re running in a close election, adding “what you're sketching out for us is a potential disaster.”
“In other words, you're saying if the candidate is going to win by 65% – no standing,” Roberts said. “But if the candidate you know hopes to win by a dozen votes, and there are places in the country where that happens over and over again, then he has standing. But we're not going to know that until we get very close to the election, right? And so it's going to be in the middle, the most fraught time for the court to get involved in electoral politics.”
