This week, the U.S. Supreme Court heard arguments in the case of Bost v. Illinois Board of Elections. Rep. Michael Bost, a Republican from Illinois, is contesting a state law allowing mail-in ballots postmarked by Election Day to be counted up to 14 days later, as SCOTUS Blog reports.
Lower federal courts had previously determined that Bost lacked the legal standing to challenge this regulation. Their ruling dismissed his ability to sue, citing insufficient personal harm. This barrier to justice set the stage for a pivotal Supreme Court review.
During Wednesday’s session, a significant majority of justices -- potentially as many as seven -- appeared ready to overturn the lower courts’ stance on Bost’s standing. This shift could redefine how election laws are contested. It’s a crucial moment for electoral integrity.
In federal litigation, standing requires plaintiffs to demonstrate a specific, tangible injury, not just a broad complaint as a citizen. Bost must prove that the Illinois law causes him direct harm. This principle guards against frivolous lawsuits clogging our courts.
Paul Clement, former U.S. Solicitor General representing Bost, pushed for a broad standard granting standing to any candidate contesting significant election changes, especially vote-counting rules. His bold proposal aims to protect candidates’ rights. Yet, it faces judicial skepticism.
Justice Elena Kagan resisted this sweeping “candidate standing” idea, advocating a narrower test. “It’s not enough to just walk in and say: Hi, I’m a candidate, and I’m suing. [Y]ou have to show … some kind of substantial risk … that the new rule puts you at an electoral disadvantage relative to the old rule,” she said.
While Kagan seeks a balanced threshold, her test still demands evidence of electoral disadvantage -- hardly a free pass. Isn’t it curious how progressive justices often champion access to courts, yet hesitate when conservatives challenge voting rules?
Justices Sonia Sotomayor and Ketanji Brown Jackson expressed doubts about Bost’s case, pointing out his own admission that the 14-day rule wouldn’t cost him his safe Republican seat. Their skepticism highlights a disconnect. Shouldn’t any unfair rule warrant a hearing?
Several justices, including Neil Gorsuch, showed openness to Kagan’s framework, focusing on disadvantage compared to prior laws, not necessarily competitive loss. This could offer Bost a path forward. It’s a pragmatic middle ground worth considering.
Clement argued Bost meets even this moderated standard, as the rule threatens his margin of victory and forces extra spending on poll monitors for 14 additional days. These burdens are real. Why should candidates bear costs for questionable policies?
Illinois Solicitor General Jane Notz, defending the state’s position, agreed with Kagan’s test in principle but insisted Bost fails to meet it with his current claims. “I actually don’t think we would have any problem at all with that rule,” Notz said. “I think the problem is … that, based on the facts that he has alleged, Congressman Bost can’t show standing based on that rule.”
Notz’s concession to Kagan’s idea drew quick pushback from Justices Brett Kavanaugh and Ketanji Brown Jackson, who noted it strayed from her original arguments. Isn’t it telling when even defenders of loose voting rules waver? Consistency matters in law.
Notz later clarified that a reduced margin of victory alone shouldn’t grant standing -- only laws impacting election outcomes or causing severe reputational damage should qualify. This high bar could silence valid grievances. It’s a slippery slope for democracy.
Justice Brett Kavanaugh voiced worries about remedies, questioning federal representative Michael Talent on the chaos of denying pre-election standing and pushing disputes to November or December post-election contexts. Talent warned that limiting standing to outcome-determinative cases favors major parties, sidelining others. This could rig the system further.
Under President Donald Trump’s leadership, there’s hope for a judiciary that prioritizes fair election challenges over bureaucratic hurdles. Kavanaugh’s foresight on remedies signals caution about unintended fallout. As this case unfolds, Americans deserve voting laws that uphold trust, not undermine it.
