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.