The United States Supreme Court heard oral arguments Wednesday in a case involving an Illinois law allowing ballots to be counted for up to two weeks after election day.
At issue in this case, however, is only the question of whether or not the Plaintiff in this case has standing under Article III of the Constitution to challenge state regulation of his federal elections.
The Justices are not tasked with weighing in directly on the permissibility of the Illinois law at the heart of this case.
Despite the narrow nature of the question before the Court this term, a ruling in favor of the challengers could open the door for future cases to be brought on similar grounds, as has been suggested by the New York Times.
Lower court judges have previously moved to dismiss this case — brought by longtime Republican Representative Mike Bost and two electors — suggesting that the plaintiffs had failed to show proper standing for a lawsuit.
Although Rep. Bost had argued he suffered financial harm from being made to keep his campaign operational for two weeks after the election to monitor the returns, a panel of judges found this to insufficient has he was not required to conduct post-election monitoring.
Bost noted in his appeal to the Supreme Court that his case presents an opportunity for the Justices “to provide lower courts and litigants much-needed guidance on candidate standing, outside of the high-stakes, emergency, post-election litigation where these issues commonly arise.”
The Justices announced in June of this year that they would be taking up the narrow question of whether or not he has the legal standing to bring this legal challenge against the State of Illinois.
In a brief to the Court, Illinois Attorney General Kwame Raoul argued that a candidate “must demonstrate a concrete and particularized injury traceable to a challenged election rule, not merely voice objection to that rule,” in order to bring a challenge against it.
Illinois also contended that allowing Bost’s lawsuit to proceed would open the door for candidates to “challenge any election rule on the books for purely ideological reasons.”
Bost, on the other hand, has argued that as a political candidate he has “standing to challenge the rules that govern the time, place, and manner of their elections” and that he had “a unique and concrete interest in the rules that govern the elections into which they pour enormous resources.”
He further suggests that a candidate’s standing cannot be dependent upon a candidate’s likelihood of winning any given race, a position with which Chief Justice John Roberts appeared to agree during Wednesday’s oral arguments.
“What you’re sketching out for us is a potential disaster,” Chief Justice Roberts said to an attorney representing the Illinois State Board of Elections Wednesday. “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.”
According to the Chief Justice, this would create a situation where courts would be forced not only to make political determinations, but to do so at “the most fraught time for the court to get involved in electoral politics.”
Justice Brett Kavanaugh also addressed this issue throughout his questioning of the attorneys, asking each what would happen if a major voting case were pushed off until after an election.
“If we’re not thinking ahead to that,” said Kavanaugh, “we’re going to walk into something.”
“I’m worried about the chaos of post-election litigation and how that would play out in a circumstance like a challenge to this particular ballot counting rule in particular,” Kavanaugh said.
Justice Samuel Alito seemed to suggest during oral arguments that the fact Bost needed to pay his campaign staff for an additional two weeks appeared to be a “straightforward” injury that should have been sufficient to give Bost standing.
Justice Ketanji Brown Jackson, on the other hand, expressed concern that a ruling in Bost’s favor would imprudently lower the bar for establishing standing.
“It seems to me crucial to uphold this idea that harm is required for standing purposes,” Justice Jackson said.
Similarly, Justice Elena Kagan indicated a belief that the case as a suit “in search of a problem,” noting that “there are perfectly easy ways for a party to say why a new rule is going to harm them.”
The Supreme Court can be expected to issue a ruling in this case by the end of June 2026 at the latest, although the Justices may opt release their opinion at any point in the coming months.
