Downstate GOP Rep. Mike Bost took his case to the U.S. Supreme Court Wednesday arguing that he and other political candidates should be allowed to sue to stop the counting of mail-in ballots received after Election Day.
Justices in the 6-3 conservative majority signaled their openness to allowing the congressman’s lawsuit to proceed, which potentially would clear the path for numerous legal challenges nationwide to voting rules that supporters of President Donald Trump have claimed unjustly favor Democratic candidates.
Bost’s attorney, Paul Clement, argued the six-term representative has standing to sue the Illinois State Board of Elections because he’s been harmed reputationally by late-arriving ballots narrowing his margin of victory, and financially saddled with an extra two weeks of pay for campaign staffers.
Illinois law ensures that mail-in ballots postmarked by Election Day are counted as long as they arrive within fourteen days of the polls closing. Justices aren’t deliberating on the legality of that long-standing Illinois statute, only whether Bost has legal standing to challenge it.
“A longer campaign is a more expensive campaign, and that classic pocketbook injury is sufficient to give Congressman Bost standing,” Clement said during the two-hour hearing that opened the high court’s new term. “There is no need to make the standing inquiry here any more complicated than that.”
Illinois solicitor general Jane Notz argued the potential harm to Bost — who eked out a 2024 primary win over Darren Bailey but cruised to a general election win in a deep-red district — was only theoretical, and that allowing his suit to proceed would open the floodgates of election law litigation.
“[Bost’s] blanket candidate-standing rule would cause chaos for election officials while saddling federal courts with resolving abstract policy disputes,” Notz said.
Justices pressed attorneys on both sides over what threshold candidates would have to meet to prove they’ve been harmed by rules around mail ballots that could potentially shift election results.
“What you’re sketching out for us is a potential disaster,” Chief Justice John Roberts told Notz, dismissing the idea that only close races would merit a challenge. “You’re saying if the candidate’s going to win by 65%, no standing. But if the candidate hopes to win by a dozen votes — and there are places in the country where that happens over and over again — then he has standing. But we’re not going to know that until we get very close to the election.”
Justice Brett Kavanaugh, on the conservative end of the bench alongside Roberts, said “candidates that are down 20 sometimes make a break for it and win. Happens all the time… I don’t understand a standing rule that therefore depends on prognostication.”
Liberal Justice Ketanji Brown Jackson rejected the idea “that a candidate who wins, and who wins by some margin, is harmed by a regulation of this nature because of the potential decrease in his margin of victory.”
Justice Elena Kagan, another member of the liberal minority, said Bost’s suit seemed to be “in search of a problem.”
“You’re asking to create a whole new set of rules when everything has been proceeding just fine,” she said. “Everybody who actually is harmed, or is likely going to be harmed by a new election rule, has had the chance to sue.”
Justices are expected to issue a decision in the case next spring, well after Illinois’ March 17 primary election.