The recent U.S. Supreme Court decision in Bost v. Illinois State Board of Elections has drawn significant attention within the legal community, particularly regarding its implications on the doctrine of standing. Congressman Michael Bost challenged Illinois’ procedure of counting mail-in ballots received post-election day, asserting it violated federal law. The Supreme Court’s decision to affirm Bost’s standing—anchored by a five-justice majority—opens new discussions on the parameters of standing in federal court, especially where electoral processes are concerned.
A striking element of the Bost ruling is its treatment of candidates’ standing in election disputes. The decision solidifies the notion that candidates automatically possess standing to contest ballot-counting procedures, regardless of potential election outcomes. This interpretation signifies a shift away from traditional standing requirements which typically demand a tangible injury connected to the claimed violation. The notion of “fair-competition” standing is expanded here, as showcased by the Court’s analogy: “Each runner in a 100-meter dash would suffer if the race were unexpectedly extended to 105 meters.” This metaphor underscores that the mere potential for an uneven race suffices for standing.
The Clapper v. Amnesty International precedent, wherein attorneys lacked standing to challenge governmental surveillance on behalf of their clients, also finds its position weakened post-Bost. Justice Barrett’s opinion in Bost counters the Clapper rationale by recognizing resource expenditure on campaign monitoring as a legitimizing factor for standing, even if the risk of harm isn’t substantial. This evolution in interpretation indicates a possible future narrowing or re-evaluation of Clapper’s applicability.
Further enriching the discourse, the decision indirectly engages “relative standing” considerations, questioning if the parties in question are the most suitable plaintiffs to bring about a particular legal challenge. This theme, albeit unacknowledged outright by the court, nonetheless surfaces within the majority’s reasoning.
Bost also ventures into the realm of systemic pragmatism. Several scholars, including election law experts like Rick Pildes and Daniel Tokaji, endorse the broader rule for standing embraced by the court, highlighting the pragmatic value of early judicial intervention in the electoral context. This approach not only favors resolving disputes before votes are cast but also aligns with doctrines like the “Purcell principle,” which discourages courts from modifying election protocols too close to election dates.
Given these nuances, Bost may delineate a transitional period in standing jurisprudence, where considerations of fairness and systemic integrity may influence standing determinations more openly and regularly. These dynamics epitomize the “standing realignment” trend visible through the shifting ideologies on left and right concerning who constitutes a proper plaintiff.