The United States Supreme Court ruled 7-2 Wednesday that a Republican representative from Illinois has standing to sue the state over its law allowing mail-in ballots to be counted after election day.
At this time, the Justices were not tasked with weighing in directly on the permissibility of Illinois’ law itself.
Authored by Chief Justice John Roberts, the majority opinion argues that candidates for office have standing to “challenge the rules that govern the counting of votes” in their elections because “an unlawful election rule can injure a candidate in several ways.”
“The harm to candidates from an unfair and inaccurate election is not common to all,” the opinion stated. “While voters also have a general interest in an accurate vote tally, a candidate’s interest differs in kind.”
“Rules that undermine the integrity of the electoral process also undermine the winner’s political legitimacy,” the decision continued. “The counting of unlawful votes — or discarding of lawful ones — erodes public confidence in election results and the elected representative.”
The Justices also found that candidates do not need to demonstrate that a law they are looking to challenge would likely impact their ability to win a given election, as such a requirement would necessitate turning judges into “political prognosticators.”
Justice Amy Coney Barrett filed a concurring opinion in this case and was joined by Justice Elena Kagan. Dissenting were Justices Ketanji Brown Jackson and Sonia Sotomayor.
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 too insufficient as he was not required to conduct post-election monitoring.
The representative then appealed his case to the United States Supreme Court, at which time the Justices agreed to consider the narrow question of his standing.
“Candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the cost of their campaigns,” the majority declared in their ruling this week.
Agreeing that Bost has standing to sue, but disagreeing with the reasoning behind the majority’s ruling, were Justices Barrett and Kagan.
In their concurring opinion, the Justices argue that they believe Bost has the right to challenge Illinois law because he “suffered a traditional pocketbook injury, not because of his status as a candidate.”
Barrett and Kagan later say that the majority opted to forgo the “straightforward path” in favor of “a novel one” by allowing individuals to challenge election law simply on the grounds that they were participating in a given election.
“Elections are important, but so are many things in life,” the concurring opinion said. “We have always held candidates to the same standards as any other litigant.”
Justice Jackson’s dissent, joined by Justice Sotomayor, argues that “under [the Court’s] standing precedents, this is an easy case,” asserting that Bost “failed to allege that the election-related law he seeks to challenge has caused him to suffer any injury” that merits standing.
“The Court thereby subtly shifts from our longstanding actual-injury rule to a presumption that certain kinds of plaintiffs are sufficiently aggrieved to satisfy Article III standing, regardless of whether they will experience any particularized harm,” the dissenting Justices said. “In my view, this dubious departure from settled law disregards both the equal treatment of litigants and judicial restraint.”
In the dissenting Justices’ view, the majority erred in finding that candidates for elected office are in a unique position relative to the voting public at large.
“In a democratic society like ours, the interest in a fair electoral process is common to all members of the voting public,” the dissent asserts. “The Court thus ignores a core constitutional requirement while unnecessarily thrusting the Judiciary into the political arena.”
“When what is at stake is the overall fairness of the electoral process, it is the people’s shared interest in democracy itself (and not just the candidate’s job prospects) that hangs in the balance,” they argued.
The dissenting Justices then go on to suggest that the Court’s ruling “has far-reaching implications beyond Bost’s election” and “opens the floodgates to exactly the type of troubling election-related litigation the Court purportedly wants to avoid.”
“I am all for simplifying our standing law,” the dissent argued in summation. “But I am against doing so selectively.”
“By carving out a bespoke rule for candidate-plaintiffs — granting them standing ‘to challenge the rules that govern the counting of votes,’ simply and solely because they are ‘candidate[s]’ for office, — the Court now complicates and destabilizes both our standing law and America’s electoral processes,” the dissenting Justices concluded.
Click Here to Read the Court’s Full Opinion, Concurrence, and Dissent
This week’s ruling by the United States Supreme Court does not change Illinois’ election law in any way. Rather, it allows Bost’s federal lawsuit challenging the state’s policy of counting mail-in ballots after Election Day to proceed.
