Summary
- The US
Supreme Court heard a case challenging Illinois mail-in ballot law. - Law
allows counting ballots received within 14 days after Election Day. - Republican
Rep. Mike Bost argued the law violates federal election timing rules.
Trump-aligned conservatives see Mike Bost’s lawsuit against
Illinois’ election legislation as a way to keep attacking mail-in voting. Bost
is a Republican representative from Illinois. Bost filed the lawsuit to claim
that Illinois law permits ballots that are postmarked to be counted up to two
weeks after election day.
Rather than whether the practice is constitutional, the main
point of contention is whether a federal candidate has the legal standing to
contest the statute. The justices questioned whether they should consider a
political candidate to be a “object” of the legislation, an entity
for which a rule has a direct impact, and if a candidate’s ability to challenge
the statute was affected by the likelihood that mail-in ballots would tilt an
election.
“You’re going to force people to come into court and show a
bunch of polls and how that two percent margin might or might not make a
difference in the end, when what you have is quite clear”,
said justice Elena
Kagan, questioning the state’s attorney Jane Notz.
“What you have is a voting
rule that harms somebody relative to what’s come before and that is a usual
standing inquiry.”
Votes sent in after election day and postmarked
on or before election day are accepted and counted in 16 states, Guam, Puerto
Rico, the Virgin Islands, and Washington, DC. Every voter in eight states
receives a mail-in ballot in addition to the option to vote in person.
With Donald Trump at the forefront of his criticisms of the
voting process, Republicans have been keen to contest mail-in ballots. In
March, Trump signed an executive order directing the attorney general to
“take all necessary action” against states that are
“incorporating mail-in or absentee ballots received after Election Day
into the final tabulation of votes for the election of members of the United
States Senate and House of Representatives and the appointment of Presidential
electors.”
The League of Women Voters, the American Civil Liberties
Union, the Brennan Center, and other groups filed a lawsuit right once to
prevent the order from going into effect.
After lower courts dismissed Bost’s lawsuit, stating that
the conservative congressman in his fifth term had no standing to sue and had
not been injured, the Illinois case made its way to the Supreme Court. The
appeal contends that he has the legal standing to contest the legislation
because the expense of running a campaign after election day constitutes a
pecuniary injury.
“[C]andidates have standing to challenge the rules that
govern their elections,”
the appeal argues,
“especially when … the challenged
rule produces an inaccurate final tally.”
“The whole election system operates on the premise that we
care about more than the final binary outcome,”
argued Paul D Clement, former
solicitor general, before the justices.
How would a ruling for candidate standing change future
election lawsuits?
Candidates would possess an automatic legal entitlement to
challenge election laws that govern their elections, and would not be required
to demonstrate a specific injury beyond their status as candidates.
It is anticipated that this broader standing would result in
a significant increase in lawsuits both pre- and post-election, challenging
election laws related to mail-in voting, ballot counting, and other voting
procedures in multiple states.
Candidates would be able to sue far in advance of elections
and soon after election day, adding to legal uncertainty and the potential for
last-minute alterations in laws.
