At the recent Supreme Court hearing on Bost v. Illinois Board of Elections, there was notable openness among the justices regarding a Republican congressman’s legal standing to challenge election laws on mail-in ballots. The case centers around Rep. Michael Bost’s objection to an Illinois law that allows mail-in ballots postmarked by Election Day but received within 14 days to be counted. The lower courts dismissed Bost’s challenge, citing his lack of standing, a decision that the Supreme Court seems inclined to review.
Central to the debate is the concept of “standing” in federal court cases, requiring plaintiffs to demonstrate a “concrete and particularized injury in fact” caused by the challenged action, as defined by legal precedent. Previous interpretations do not permit challenges purely on citizenship or taxpayer status without specific personal harm.
Former U.S. Solicitor General Paul Clement, representing Bost, advocated for a standard where candidates could challenge election procedures if they materially change election conduct. Justice Elena Kagan, however, critiqued this, suggesting candidates should demonstrate a “substantial risk” of electoral disadvantage. She did, however, acknowledge the bar for proving standing should not be overly difficult.
Justices seemed divided on the issue, with Sonia Sotomayor and Ketanji Brown Jackson expressing skepticism that Bost’s arguments establish standing, since he could not likely lose his seat due to the law in question. Nonetheless, the discussion revealed an interest in possibly lowering the threshold for candidates to challenge election laws where they can show some form of disadvantage.
Illinois Solicitor General Jane Notz supported a version of Kagan’s approach but argued Bost had failed to show standing under such a standard. This led to further debate with Justices Brett Kavanaugh and Jackson over the implications of Notz’s position regarding the future handling of similar cases.
The discussions on remedy highlighted concerns about the timing and nature of legal challenges to election laws, as voiced by Justice Kavanaugh. If candidates were unable to challenge pre-election, it could force all challenges to be resolved post-election, complicating legal and electoral processes. Assistant Solicitor General Michael Talent pointed out the potential issues that such post-election legal framings would cause, leaving open questions about appropriate remedies if deadlines were invalidated.
Overall, the hearing suggested that the Supreme Court is grappling with complex issues of legal standing and electoral fairness, indicating that the final ruling could have significant implications for how election laws are challenged and litigated in the future.