3:05The U.S. Supreme Court building in Washington, June 1, 2024. Will Dunham/Reuters, Files
On Wednesday, a majority of the Supreme Court indicated a readiness to permit contenders for national positions to more readily contest state election regulations without demonstrating that the rules would substantially jeopardize their odds of victory.
The case could pave the way for a surge of legal actions preceding the midterm contests at a juncture when numerous Republicans and allies of President Donald Trump aspire to reverse statutes that permit the tabulation of late-arriving mail-in ballots and other voter conveniences.
During Wednesday’s verbal arguments in a legal challenge initiated by Illinois Congressman Michael Bost, the justices seemed inclined to allow him to challenge a state law permitting the counting of mail-in ballots for up to 14 days post-election, provided they bore a postmark on or before election day.
Bost’s lawsuit was initially dismissed after a federal district court and appeals court determined he lacked a sufficient stake in the election to validate his right to file a lawsuit. The Republican, serving his eighth term, secured 75% of the vote in 2022 and 74% in 2024.
The U.S. Supreme Court building in Washington, June 1, 2024.Will Dunham/Reuters, Files
To commence a lawsuit in federal court, a plaintiff generally needs to demonstrate that a specific action harms them, that the action originated from the person they are suing, and that the court’s remedy would rectify the damage.
Bost’s attorney, Paul Clement, contended before the justices that candidates – irrespective of the result – are not “mere onlookers” in an election and dedicate “significant time and effort” to their campaigns, thus possessing a tangible interest in precise vote tallies.
“If the campaign is extended by two weeks, the campaign staff must be retained for those two weeks, which will increase expenses,” Clement asserted.
Clement argued that preventing Bost’s lawsuit from proceeding would transform the “federal courts into federal predictors.”
All the Court’s conservative members seemed receptive to Clement’s argument, and even some of the Court’s liberal justices hinted at a willingness to consider a compromise advocated by the Trump administration.
“Let me inquire about the monetary harm,” Justice Samuel Alito remarked regarding Bost’s right to sue. “Why isn’t that straightforward?”
Alito also implied that a disparity in a vote count from the contested ballots would also suffice as grounds to bring a case. “Isn’t a reduced margin of victory an actual injury?” he questioned Illinois Solicitor General Jane Notz, who defended the law.
“Unless it is linked with something else, a smaller margin of victory has no practical consequence,” Notz stated.
Justice Brett Kavanaugh expressed apprehension about channeling more election law disputes until after an election, which could consequently disenfranchise voters and generate “turmoil.”
“So, suppose the losing candidate initiates a lawsuit, contesting this regulation…and the Court, following the election, deems it unlawful. We encountered this in 2020 in several of our pre-election cases,” Kavanaugh asked. “What is the solution?”
Chief Justice John Roberts echoed similar anxieties, stating that restricting lawsuits based on a stricter interpretation of candidate standing would lead to lawsuits being filed closer to elections during the “most volatile period in politics.”
“What you’re delineating for us is a potential catastrophe,” he commented.
Justice Elena Kagan seemed open to a middle ground that might enable Bost to pursue his case without automatically setting a precedent that would grant standing to any candidate seeking to challenge any election rule for any reason.
She proposed that the Court could mandate a candidate to assert a “significant risk” that a new election law would place him or her at an “electoral disadvantage” compared to the previous rule.
“What exists is a voting rule that disadvantages someone relative to what preceded it,” Kagan observed.
Justice Sonia Sotomayor was more reserved regarding her opinions.
“Our legal precedents and our standing laws necessitate some form of considerable harm that can be articulated and demonstrated. And what you’re discussing is a desire to enforce the law with a generalized complaint because it does not particularly harm you,” Sotomayor stated.
Justice Ketanji Brown Jackson was the most dubious of Bost’s stance, openly questioning whether a mere difference in vote margin constitutes harm to a candidate and expressing uncertainty about the notion that spending money to oversee ballot counting was a required expenditure.
“I’m somewhat concerned about the notion in your argument that a candidate who prevails, and who prevails by a certain margin, is harmed by a regulation of this nature due to the potential reduction in their victory margin. I fail to comprehend the harm that necessarily arises from that,” Jackson remarked. “You might feel disappointed, but that is not typically what we consider when determining whether someone has actually been harmed.”
A decision in favor of Bost would not only revive his challenge to mail-in ballot counting but would also broaden the ability of any candidate for federal office to initiate lawsuits over voting policies before Election Day.
“The implications of this case extend beyond standing rules; it concerns how candidates, political organizations, and even voters perceive challenging the regulations governing elections moving forward,” stated Matthew Shapanka, an election law specialist at Covington & Burling LLC.
“It also pertains to the extent of court intervention in elections and whether it is fitting for courts to make judgments about a candidate’s strength or their likelihood of winning or losing when deciding whether to hear a case concerning the constitutionality or legality of an election rule,” Shapanka noted.
The decision in the case, Bost v. Illinois Board of Elections, is anticipated by the close of June 2026.
Sourse: abcnews.go.com
