| Last week the Supreme Court heard oral argument in Bost v. Illinois State Board of Elections, a dispute involving the legality of Illinois statutes that direct state election officials to count ballots in federal elections if the ballots are postmarked on or before Election Day, even if the ballots are delivered to election officials days (up to fourteen) after Election Day. The issue on which the Supreme Court granted review is not the “merits” question of whether Illinois law is preempted by federal statutes that embody the concept of an “Election Day” (an issue we have analyzed in prior columns, here and here, and which we also briefly discuss at the end of this column), but instead a preliminary question of whether the parties who brought suit in Bost had standing under Article III of the Constitution to invoke the power of the federal courts in the first place. | | The Bost plaintiffs, who filed suit in the summer of 2022, are three individuals who professed an intent either to run for Congress in November 2022 or to serve as a Presidential Elector representing Illinois in the 2024 presidential election. The lead plaintiff, Michael Bost, is in fact a long-serving (since 2015) Republican member of the House of Representatives from Illinois’s 12th congressional district. The plaintiffs contended, in both the lower courts and the Supreme Court, that their status as candidates in federal contests gave them the distinctive (that is, non-generalized) personal stake in the legality of state election rules (including rules determining which ballots would be counted) required for Article III standing. They sought a declaration that Illinois law permitting the counting of ballots received after Election Day is preempted by federal law, and an injunction prohibiting Illinois from counting ballots that arrive after Election Day. | | The lower courts rejected plaintiffs’ standing, largely on the ground that it was “speculative” and “conjectural” that the relatively small number of late-arriving votes that would be counted under the challenged Illinois law (for example, the plaintiffs’ complaint alleges that in 2020, a banner year for mail-in ballots due to COVID-19, about 4% of the state’s six million ballots were mailed in and arrived after Election Day) would “certainly” change the outcome of any of the contests in which plaintiffs said they would be candidates. Bost in particular represents a relatively “safe” Republican district and had beaten his Democratic opponent in the November 2020 general election by around 20 percent. The other two plaintiffs were Republicans who sought to become Presidential Electors from Illinois in 2024, but in Illinois no Republican presidential candidate has been within 10 percent of the Democratic winner in the state since 1988, so no Republican electors have had a decent chance of winning for over 30 years. | | The plaintiffs in Bost countered this reasoning (unsuccessfully in the lower courts) by arguing that: (1) it is inappropriate for courts to base decisions regarding standing upon dicey prognostications of who is likely to win or lose an upcoming election; (2) in any event, the margin of victory or loss matters, both because it affects a candidate’s legitimacy and credibility and affects fundraising prospects; and (3), at least at to Bost, having to pay campaign staffers for two extra weeks after Election Day increases a candidate’s pocketbook costs. | | After oral argument at the Supreme Court, it appears reasonably likely that a majority of Justices will find that Bost at least had Article III standing to bring his claims. Although the precise contours of the Supreme Court’s ruling cannot be predicted with confidence, the bottom line seems relatively clear. And we think clearly correct. In the space below, we offer some brief analysis as to how the Court should approach the issues raised by Bost, and why it should rule in plaintiffs’ favor. | | First, the lower courts’ apparent approach (that Justices Sonia Sotomayor and Ketanji Brown Jackson seemed open to accepting)—that to have standing a candidate must credibly allege that he will certainly lose the election because of the challenged election regulation—would be terrible. For starters, who can predict such things? Polling, even late in a campaign, can be flawed, which means that elections are frequently surprising. On top of that, unforeseen election-related events happen all the time. Even though Bost’s seat seems safe for him (although we do note that he won the general election in 2018 by under 6 points), it is useful to consider what would happen if Bost’s district were similarly (or even more) safe for a Democrat. In that instance had he sued he would have been denied standing by the lower courts on the ground that he was likely to lose in such a way that the questioned law would not affect the outcome. But what if, after such a lawsuit were rejected, the Democratic candidate were to suffer an unfortunate accident and fall into a coma in the days leading up to the election? If the federal courts had already declined to entertain Bost’s claims, and the election ended up being very close because some reliably Democratic voters decided they’d rather have Bost (and a voice in the House) than an empty seat, we would all be in a real bind. Relatedly, a rule requiring plaintiffs to show (or at least allege) that who wins the election will depend on the challenged regulation would force candidates to sue late, rather than early, in the election cycle, but such federal lawsuits filed close to an election would run up against the so-called Purcell barrier (a Supreme Court rule admonishing lower federal courts not to entertain election challenges in the close runup to Election Day), a fact Illinois’s Solicitor General seemed not to fully acknowledge when she tried to answer Justice Brett Kavanaugh’s sensible observation that having courts resolve these kinds of disputes before elections is much better than after an election has been held, when judicial legitimacy is more likely to be strained. | | So if a candidate cannot easily bring an action before the election (on the ground that an effect on outcome is speculative and because of Purcell), and cannot easily bring one after the election (because a court would have a hard time undoing the election or invalidating votes that had already been counted, both because such a remedy would be inherently politically difficult and because the voters whose votes were invalidated could plausibly argue that they reasonably relied on Illinois’s statutes and would have mailed their ballots in earlier had they known that was necessary for their votes to count), where would that leave things? One possibility is that the legality of election regulations such as Illinois’s never (or rarely) get resolved by courts, which means that many elections are held and resolved under a cloud of legal/ constitutional doubt and possible illegitimacy. As one of us (Amar) argued in an Illinois Law Review article co-written with Professor Evan Caminker, that result is unacceptable; society needs questions about the legality of election rules resolved definitively more than it needs most legal disputes resolved. It is for that reason that Amar and Caminker argue, especially in light of the Purcell rule (seemingly adopted because last-minute changes in election administration can confuse voters, reduce turnout and upset settled expectations of voters and candidates), that justiciability rules like standing, ripeness, and mootness should be applied particularly flexibly and generously to permit before-the-fact challenges to election regulations. In other words, they argue, election-related cases should be treated exceptionally for justiciability purposes. | | And it is a bit surprising that the liberal Justices on the Court (who at oral argument seemed least friendly to Bost’s contentions) should oppose relaxation of justiciability hurdles for plaintiffs in election cases; at least as an historical matter many pre-election challenges were brought to invalidate limitations on the right to vote and have one’s vote counted, the kinds of claims the liberal Justices would seem to embrace. More generally, the liberals on the Court in recent years seem reluctant to do battle over the merits of legal claims—and as we explain below we think Bost’s claims on the merits should lose—and instead spend much of their time focused on non-merits arguments such as the balance of hardships in stay cases and (as in Dobbs) stare decisis. Such matters are not unimportant, but they should not displace attention to the merits of a case when plainly warranted. | | Given that a rule denying Bost standing would make little sense, the question becomes: What is the precise ground on which he should win? Bost’s lawyer, Paul Clement, argued for a bright-line rule that candidates for office inherently have particularized interests in the clarity and legality of election rules, and we would be fine (along the lines of the Amar/Caminker article) endorsing such a position. After all, as Mr. Clement argued, candidates always have a distinctive interest not just in whether they win or lose but by how much. Even if, as Justice Amy Barrett suggested at argument, it is hard to know whether a bigger margin of victory helps or hurts fundraising, certainly a larger margin of victory (or a smaller margin of loss) is always relevant to the “mandate” question that bears on political legitimacy and influence. So even if we ignore Bost’s arguments about having to pay staffers for an extra two weeks (since that argument essentially piggybacks on the notion of margin of victory being relevant, else no one would spend money monitoring the late-arriving ballots in an election whose outcome was not in doubt), all candidates do have an inherent interest in wanting to see a higher percentage of all votes cast tallied in their column. And that observation also implicates another interest that candidates have that wasn’t featured extensively in the oral arguments: an interest in being able to calibrate campaign strategy. If late-arriving votes count (or don’t count), that could alter the extent to which a candidate might try to appeal to voters who are likely to mail their ballots in late. (As one of us (Mazzone) has explored, there are key demographic differences between voters who mail back ballots early and late in the election cycle.) The Seventh Circuit dismissed all of this by saying that although Bost and the other plaintiffs contend that counting late-arriving ballots “could decrease . . . their margin of victory, . . . Plaintiffs do not (and cannot) allege that the majority of the votes that will be received and counted after Election Day will break against them, only highlighting the speculative nature of the purported harm” (emphases added). But standing law has never required absolute certainty as to an injury plaintiff seeks to avoid; instead, as the Court said a decade ago in Susan B. Anthony List v. Driehaus (the most important recent justiciability case in the election realm), a “substantial risk that the harm will occur” will suffice. And unless there is a significant likelihood that late-arriving votes would break against Bost, why would he spend money to bring a lawsuit in the first place? | | All of that brings us to Justice Elena Kagan’s suggestion at argument that perhaps a candidate shouldn’t have to assert that the election’s ultimate result will turn on the disputed votes but instead should be required to plausibly allege only that the challenged election regulation is reasonably likely to cost the candidate some votes. In theory that approach is different from Mr. Clement’s more absolutist “all candidates have standing” rule, but in practice there is virtually no daylight between the two; as noted above, what candidate is likely to sue in the first place unless there is a reasonable chance that the rule he is challenging will cost him at least some votes? | | Illinois’s Solicitor General did point out at argument that, under the approach the lower courts adopted, political parties might be able to challenge laws like Illinois’s even if candidates cannot. Indeed, a Fifth Circuit case, National Republican Committee v. Wetzel, which we have discussed before, reached the merits of a challenge to a Mississippi law that (like Illinois’s) allows ballots to be counted even if they are received after Election Day, concluding under circuit precedent that the Republican National Committee had standing. If, as the Seventh Circuit apparently believes, standing requires a showing that an election outcome is going to be affected by a particular regulation, a political party might have an easier time establishing standing than an individual candidate in Illinois, because the party would have to show only that at the outcome of any single contest within the state would be affected. But there is no guarantee that any contest will in fact turn on a challenged law, and yet vote totals, both for each candidate and for political parties in the aggregate, matter a great deal. (Consider the rhetorical appeal of one party being able to claim more Americans voted for it than the other party.) On top of all this, there is no reason why anyone should have to wait for a party to bring a lawsuit. As Amar and Caminker argue, in the election-legitimacy realm, having more potential plaintiffs is better than having fewer. | | But what about the fact that the 2022 and 2024 elections, the ones in which the Bost plaintiffs said they wanted to participate, have already come and gone? In other words, aren’t the plaintiffs’ claims for declaratory and injunctive relief moot since the only elections in which they expressed a stake are already over? Remarkably, no one at argument discussed this possibility, but it is a significant doctrinal issue that the Court definitely should address in its written opinions. We think the “capable of repetition yet evading review” (CORYER) exception to mootness should clearly apply: Bost himself is likely to run for Congress again (even though his complaint never indicates that), so the same issue will probably arise between him and Illinois again, and it will likely be hard for the Supreme Court to resolve that issue before any particular congressional election in which Bost is a candidate has come and gone were he to file another complaint. Moreover and more importantly, as Amar and Caminker point out, when elections are involved, the Supreme Court has (rightly, albeit without explanation) often relaxed the CORYER requirement that the issue involved be capable of repetition as between the same parties, but instead has asked only whether the issue is capable of repetition (involving other parties) more generally. Issues like the one Bost has raised need to be resolved sooner rather than later, preferably before the 2026 congressional election. | | In that regard, we note that a cert. petition in the Republican National Committee Fifth Circuit case mentioned above is currently before the Court. We hope the Court grants review, and if it does we hope the Court repudiates the Fifth Circuit ruling that struck down Mississippi’s law. Readers can see our full analysis debunking the Fifth Circuit’s merits reasoning here. Our bottom line is that there is no basis to conclude—and the Fifth Circuit opinion doesn’t provide one—that in designating a national Election Day Congress displaced the power of states to deem ballots that are securely in the U.S. mail system to effectively be in the custody of the state (just as ballots are in the custody of the state when placed in a secure lockbox that is not emptied until the day after Election Day.) What matters for purposes of Congress’s evident interest in finality is that voters make their final choice by or on Election Day, and that such choice is reliably conveyed to election officials. (Nobody contends that all votes must be counted by the end of Election Day.) Marking the ballot and putting it in a secure mail system on Election Day serves that interest in the same way as does voting in person on Election Day at the polls. In both instances, the final choice is made by the date Congress has set. On the merits, the claim the RNC and Bost have made should therefore fail—and better earlier than later. |
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