Supreme Court set to revive Republican congressman’s absentee ballot lawsuit, potentially triggering more election litigation
A majority of the Supreme Court on Wednesday indicated it would support a Republican congressman from Illinois challenging a state law allowing mail-in ballots to be received after Election Day, a move that would allow him to pursue a potentially explosive lawsuit that lower courts had rejected.
Rep. Michael Bost’s appeal to the Supreme Court does not focus on the issue of voting itself, but rather raises the question of whether federal candidates can bring lawsuits over election rules — even if, as in Bost’s case, they represent a safe constituency and are highly favored to win the election.
Although technical, the case could have far-reaching implications for election litigation, potentially opening federal courts to challenge a wide range of election rules.
A federal appeals court in Chicago stopped Bost’s lawsuit before it began, ruling that he lacked what’s called “standing” to sue under state law. In federal court, plaintiffs must demonstrate the existence of “concrete” and “particular” harm before their action can move forward. Bost argued that candidates, by their nature, should have some sort of default standing to file lawsuits over election laws.
Illinois officials countered that candidates must essentially demonstrate that the rule change could cause them to lose their race.
But most of the Court’s conservative justices balked at that reading, fearing it would force courts to weigh a candidate’s potential success in an upcoming election. And they agreed with Bost’s argument that a ruling against him could move the election dispute to just before — or immediately after — Election Day.
“What you’re painting for us is a potential disaster,” Chief Justice John Roberts told a lawyer representing the Illinois State Board of Elections. “You’re saying if the candidate is going to win by 64 percent, they can’t run. But if the candidate hopes to win by a dozen votes… then they have the opportunity to run.”
That, the chief justice said, would likely require the court not only to make policy decisions, but to do so during “the most difficult time for the court to become involved in electoral politics.”
It was a theme that Justice Brett Kavanaugh returned to repeatedly throughout the nearly two-hour discussion, asking each attorney what might happen if a major election case was postponed until after an election. A losing candidate might then be able to more clearly establish their position, but the case could risk having a court invalidate votes already cast.
“If we don’t think about it,” Kavanaugh warned, “we’re going to end up in something.”
Bost has largely asserted that all candidates have standing to challenge the voting rules. The Trump administration told the court that Bost should be allowed to sue, even though she has strayed from some of his most hardline positions.
Bost filed a lawsuit in 2022, saying an Illinois law allowing mail-in ballots to arrive up to two weeks after Election Day went against a federal law that sets a uniform day for federal elections. As in other states, the absentee ballots in question must be postmarked no later than the time of the election.
To establish his position, Bost also argued that his campaign would be required to pay staff for two additional weeks to monitor the return of mail-in ballots. Justice Samuel Alito suggested at one point that it appeared to be a “simple” injury that should have allowed Bost’s trial to proceed.
Justice Elena Kagan, a member of the court’s liberal wing, cast the case as a lawsuit “looking for a problem.” Kagan noted that a flood of election disputes filed by voters, political parties and others make their way through the federal court system every election season.
“There are very simple ways for a party to explain why a new rule is going to hurt them,” Kagan said, adding that it seemed like Bost was “asking to create a whole new set of rules when everything was going very well.”
