The Supreme Court will soon hear a case involving a challenge to a law allowing late-arriving mail-in ballots. However, the dispute before the justices will not be over whether the law is constitutional, but if the candidate has standing to sue over it.
In Bost v. Illinois Board of Elections, the question of whether a federal candidate has standing to sue over state election laws governing his election will come before the high court. Rep. Mike Bost (R-IL) led a lawsuit filed against Illinois officials in 2022, alleging the state law that allows mail-in ballots to be collected 14 days after Election Day, as long as they are postmarked by Election Day, is unconstitutional. Lower federal courts ruled against Bost, finding he lacked standing while not reaching a decision on the merits of the case, prompting him to seek review from the Supreme Court on the standing issue.
Russ Nobile, a senior attorney for Judicial Watch who will argue for Bost in the case, told reporters on Tuesday that they hope the Supreme Court will clarify mixed rulings on standing in this and other cases that have emerged in the federal courts since 2020.
“This should go a long way to answering those questions as to when do candidates and when do federal courts hear these types of election challenges when states are alleged to violate federal law,” Nobile said.
Tom Fitton, president of Judicial Watch, believes the case comes down to whether “a candidate can sue to stop an election from being stolen.”
“If you can’t sue to count ballots you think are being counted illicitly because they got there too late — you’re denied that in federal court — the idea that any outrageous rule the states come up with in terms of counting federal ballots can’t be challenged in court, all bets are off,” Fitton told reporters on Tuesday.
Honest Elections Project Vice President Chad Ennis previously told the Washington Examiner that if the Supreme Court finds no standing for federal candidates to sue over the laws, it would have “wide implications.”
“It makes these things harder to challenge, almost impossible, and that’s really the problem if a candidate doesn’t have standing to sue on election rules,” Ennis said. “Who does at that point? It gets really hard to think of how anyone can get in court.”
Bost has gained some unlikely allies in his fight to convince the high court that he has standing to file a lawsuit over the Illinois election law. A group of left-leaning groups, including the ACLU and League of Women Voters, filed a brief in support of the Republican congressman’s argument regarding standing, while noting they are not opposed to the mail-in ballot law he is suing over.
“While the League and its state and local affiliates have fought to advance state laws like the one challenged here, and thus vehemently oppose Petitioners’ position on the merits, they often find themselves in the same position that Representative Bost does here: injured because a challenged election rule materially interferes with their pre-existing core activities and drains resources that would otherwise be deployed elsewhere,” the left-leaning groups’ brief said, while urging the high court to reverse the lower court’s ruling on standing.
Illinois officials argued in their brief that Bost failed to show any material harm to him caused by the mail-in ballot law and that the lawsuit should not hold up, as lower courts have previously ruled. State officials also claim the lower court’s decision would not “impede candidates’ access to the courts or push election litigation to the days and weeks surrounding Election Day.”
“A political candidate, like any other plaintiff seeking to invoke Article III jurisdiction, must demonstrate a concrete and particularized injury traceable to a challenged election rule, not merely voice objection to that rule. Petitioners failed to do so,” the Illinois officials’ brief said.
ADVOCATES WARN COLORADO ‘CONVERSION THERAPY’ BAN IN SUPREME COURT CASE IS ‘BLATANT CENSORSHIP’
The Supreme Court is slated to hear arguments in the case on Oct. 8, the third day of oral arguments for the high court’s new term. It will be one of a trio of election and voting-related cases that could have significant impacts on upcoming elections.
While the constitutionality of counting mail-in ballots that arrive far past Election Day is not before the high court in this case, the justices are considering a petition to hear the merits of a similar case over a Louisiana law. The Louisiana law allows mail-in ballots to be counted if they are received up to five business days after Election Day and have been postmarked by Election Day. The petition in Watson v. Republican National Committee asks the Supreme Court to consider striking down laws allowing ballots received after Election Day to be counted.
