Bost v. Illinois State Board of Election is one of the most difficult standing opinions I've encountered. This case is at once simple and extremely difficult. I've been struggling with Bost since I covered it in my Supreme Court simulation class this past semester. I found the Court's ultimate resolution unsatisfying and unpersuasive.
The question presented in Bost was whether a candidate for the House of Representatives has standing to challenge an Illinois law that permits the counting of mail-in ballots that are received after election day. Both the District Court and the Seventh Circuit found that Representative Michael Bost lacked standing. Bost, a Republican, serves in a gerrymandered district, where his margin of victory was significant. The lower courts found that there was no realistic chance that the late-arriving ballots--even if they all went for the Democratic candidate--could make a difference in the outcome of the race. As Justice Jackson wrote in dissent, Bost "never alleges that untimely ballots are more likely to break against him and in favor of his opponent." And the lower courts found that the candidate does not have an interest in padding his margin of victory.
Chief Justice Roberts authored the majority opinion, which was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Barrett concurred in the judgment, joined by Justice Kagan. The Chief found that the candidate has standing because he is a candidate: "As a candidate for office, Congressman Bost has standing to challenge the rules that govern the counting of votes in his election." Justice Barrett, by contrast, found that the candidate has a pocketbook injury, and would not have created a "bespoke" rule for candidates. She wrote, "Bost has standing because he has suffered a traditional pocketbook injury, not because of his status as a candidate."Justice Jackson dissented along with Justice Sotomayor, finding that any purported injury was self-imposed in light of Clapper.
Who can challenge the rule?
As a general rule, candidates have standing to challenge election rules because those rules directly regulate the conduct of candidates. For example, a rule requiring that a certain number of signatures must be collected imposes a burden on the candidate. A rule requiring disclosure of contributions also imposes a burden on the candidate. Also, as a general rule, regulations that make it harder to cast votes can be challenged by voters. For example, requirements to sign absentee ballots in a certain way, or restrictions on where ballots can be dropped off, will impose costs on voters. Voters would have standing to challenge these rules.
But what about regulations that make it easier for voters to cast votes? Such is the case in Illinois, and many other states. The relevant law permits the state to count mail-in ballots that were mailed before election day but were received after election day. No voter would have standing to challenge this permissive rule of inclusion. The law imposes no burden--only a benefit. (Policies like DACA are exceptionally hard to challenge in court because they primarily provide benefits.) Voters could not base a claim on an interest in avoiding voter fraud. Voters do not have a generalized interest in the fairness of an election.
As a result, the only party that could conceivably challenge this rule would be a candidate. In the worst-case scenario, imagine that there is a very tight race, and the margin of victory turns on counting these late-arriving ballots. At that point, the losing candidate would have standing to challenge whether those ballots should be counted. We saw similar claims raised in the wake of the 2020 election. But as the 2020 election demonstrated, the Supreme Court wanted absolutely nothing to do with eleventh hour litigation. From a practical perspective, it would make some sense for candidates to file a pre-enforcement challenge against the rule. But bringing suit before the election raises a host of problems.
Put aside the standing analysis for a moment, and consider the timing. A person is a "candidate" for a fairly limited period of time. That span would run from when the person is certified to appear on the general election ballot and concludes when that election has a certified winner. This period will usually last less than a year, sometimes only a few months. It is extremely unlikely that a pre-enforcement challenge would move quickly enough to go from the district court to the Supreme Court in that span. Invariably, as the litigation trickles up to the Supreme Court, the complaint filed based on a past election will become obsolete, assuming the candidate ever runs for reelection. In Bost, the complaint was filed in May 2022 based on the 2022 election. Now, we are gearing up for the 2026 midterms. The world has changed since then. Indeed, boundaries can be redrawn, political sentiments can shift, and a politician's popularity might change.
The Standing Puzzle
Candidates will generally have standing to challenge election rules. After all, most ballot access rules directly affect the candidate. But the Illinois law was different, insofar as it regulated voters. There was a somewhat comical exchange during oral argument in which Justice Kavanaugh asked, repeatedly, if the candidate was the "object" of the regulation.
CLEMENT: Look, if it helps me to say they're the direct object, I'll say it. But I do kind of think it's a -
JUSTICE KAVANAUGH: They're an --an object.
JUSTICE KAGAN: It might help you with some people and not with other people.
CLEMENT: Yeah. (Laughter.)
The majority did not address the argument that Bost is the object of the Illinois law; Justice Jackson expressly rejects that argument under FDA v. AHM. Thus, Bost had to argue something of an indirect injury.
An election rule that does not regulate the candidate creates very different logistical hurdles. Or at least it creates difficult hurdles for Republicans. There is an asymmetry, as Democratic governments favor looser election integrity rules while republican governments favor tighter election integrity rules. Accordingly, the burden will invariably fall on the right side of the aisle. It is thus a bit of an anomaly in Watson v. RNC that Mississippi, a deep red state, is defending its mail-in ballot rule against a Republican challenge.
If we just keep things simple, of course the candidate has standing. Every candidate in Illinois will have to employ staff to monitor the counting of ballots after election day. That is an entirely foreseeable pocketbook injury that every politician will incur. Standing, QED.
But if you dig a bit deeper, the question is tougher. First, under Clapper, this injury can be viewed as self-inflicted. Nothing Illinois has done requires the member to pay poll watchers and other staff after election day. The Democrat-controlled state tells the Republican member to "trust us" to ensure a fair election process. (You can perhaps sense my cynicism.) Second, under Alliance for Hippocratic Medicine, is it necessarily foreseeable that the late-arriving ballots in that race will actually make a difference? If the member has a landslide victory, then those ballots will be irrelevant, and will not cause a cognizable injury. Bost has one of the few gerrymandered Republican districts in the state, which is packed with Republican voters to ensure that Democrats in other districts will win. (I doubt there are any Republican candidates in Illinois who would ever be in a close-enough election where the untimely ballots would make a difference; gerrymandering ensures all the margins are lopsided.) It's not enough that the rule could affect someone's election; the rule has to affect Bost's election. To use AHM as an example, there might be some pregnant women who suffer complications from using mifepristone, but the Court found it too remote that one of the plaintiffs would have to treat that patient. (If politicians have an interest in fair elections, why don't doctors have an interest in seeing healthy pregnancies come to term?)
There are obvious responses to these arguments. First, the Court can take judicial notice of how important it is for candidates to ensure the integrity of an election, and to promote a general sense that elections are fair. (The Court likely has doubts of how Illinois election officials would behave if not being monitored.) Second, federal judges should not be in the business of prognosticating ex ante the outcome of a race in light of past races. If ever there was a political question, this is it. As a result, courts should just presume that there will be an injury.
Back to the other side. Bost's argument dispenses with the requirement that the plaintiff bears the burden of establishing every facet of standing, and an injury in fact cannot simply be presumed. Lurking in the background is the "nightmare scenario" where this rule can only be challenged in the heat of an election where the Justices would decide the outcome. During oral argument, the Justices demonstrated they are still suffering from PTSD from the 2020 election. What a mess! As I said, I have been struggling with this case for months.
Three Flawed Opinions
The three opinions in Bost did little to resolve this standing puzzle. Chief Justice Roberts authored the majority opinion, which was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. The Chief's opinion was only ten pages long. The shortness is a tell. When the Chief writes something so short, you are being served a John Roberts blue plate special. On the first read, everything makes sense and the answer seems so obvious. But when you read the responses, you realize the majority opinion is built on smoke and mirrors. The Lady Gaga song "Abracadabra" plays in my head when I read a Roberts opinion.
Read More
