When may a candidate challenge election rules in federal court?

In federal elections in Illinois, votes by mail are counted until 14 days after the polls close, so long as they are postmarked by election day. Democrats generally favor the rule because they believe that the majority of votes received after election day are for Democrats. Republicans generally oppose the rule for the same reason. In the case of Bost v. Illinois State Board of Elections, to be argued on Oct. 8, the question is whether  a candidate for Congress has standing – that is, a legal right to bring a lawsuit – to challenge the legality of that rule in federal court.

Congressman Michael Bost, a Republican now serving his sixth term in the 12th Congressional District in southern Illinois, sued in federal district court to block enforcement of the rule, arguing that it is superseded by federal election law. The district court dismissed his complaint for lack of standing, and a divided panel of the U.S. Court of Appeals for the 7th Circuit affirmed.

Plaintiffs in federal court who seek an injunction must demonstrate that they have standing to sue. If they lack standing, their lawsuit is not a “case or controversy” within the meaning of Article III of the Constitution, and the court therefore lacks jurisdiction to proceed – that is, it cannot hear the case. Justice Antonin Scalia’s pithy restatement of the law of standing was, “What’s it to you?” Mere concerned bystanders may not invoke the jurisdiction of a federal court.

Under Supreme Court precedents, plaintiffs lack standing if they cannot show a “concrete injury in fact” that is “fairly traceable” to the complained-of action by the defendant. The plaintiffs must also show that the requested injunction will redress the plaintiffs’ claimed injury. If that claimed injury is shared by virtually everyone else in society, it is deemed a “generalized grievance” and there is no standing. Finally, the Supreme Court has held that if the plaintiffs’ claimed injury is too “speculative” – as opposed to “imminent” – again there is no standing.

In affirming the district court’s finding that Bost lacked standing to sue, the court of appeals addressed several different claims of injury by Bost. First, the court rejected Bost’s claim that the Illinois ballot receipt procedure violates the Constitution because it allows his vote to be diluted. The court of appeals acknowledged that the additional 14 days of receiving votes will lead to an increased total number of votes, thus in some sense diluting the effect of Bost’s individual vote, but any such dilution would be precisely the same as the dilution of everyone else’s vote, which makes his claim an impermissible generalized grievance. 

The court of appeals then turned to Bost’s claim that the additional time for receiving votes would require him to spend more money – namely, to continue to employ poll watchers and other observers. According to the court of appeals, if Bost incurred extra costs by extending employees throughout the additional 14 days, those costs were self-imposed. No law required him to do that. And even if Bost incurred those extra costs out of fear of losing an election he would otherwise win, that fear constituted a “hypothetical future harm” that did not qualify as “injury in fact.” After all, the court noted, Bost won his last election with a whopping 75% of the vote.

In his brief before the Supreme Court, Bost does not advance the “vote dilution” argument. Instead, he renews the argument he made before the court of appeals that the extra costs he incurred to employ observers and other campaign personnel during the additional two weeks of vote counting constitute the classic sort of “pocketbook injury” that has always supported standing to sue in federal court. He disagrees with the board of elections’ portrayal of such costs as “self-inflicted”; to the contrary, he says, any reasonable campaign would obviously pay to keep enough observers on the scene during the extra 14 days of counting to make a record of what happened in case the campaign needed to challenge something later.

Bost also argues that the 14-day rule endangers his electoral fortunes. First, he claims that the court of appeals was wrong to focus on the fact that he won his last election handily. “Candidates need not demonstrate that the challenged government action will ‘cause them to lose the election,’” he states. The precedents do not require that “the diminution in electoral prospects be outcome determinative”; instead, it is enough that the challenged action “harms their chances.” 

But does mere diminution of electoral chances create a concrete injury to the candidate, as opposed to an abstract harm? Bost insists that it does. “Any sense that a candidate’s chances have been artificially dimmed will cause immediate harms in terms of diminished fundraising opportunities and increased campaign efforts and expenditures to make up for the artificial handicap imposed by the allegedly unlawful law,” he states. 

Even if the only question is the precise margin of Bost’s victory, there is something very real at stake, Bost asserts. Prospective donors will decide how much to give in the futureat least in part based on how strong an electoral record the candidate maintains. And the opposing party will decide how much of a challenge to mount in the next election based largely on that same factor. If the margin of victory is slimmer than expected, the opposing party may well decide to make a maximum effort to take down the incumbent in the next cycle. And the biggest future electoral threat may not even come from the opposing party. Bost points out that he only narrowly beat back a primary challenge from another Republican in the 2024 election. 

While the board of elections flatly rejects Bost’s “margin of victory” claim as too speculative to support standing, it also argues that Bost did not raise the claim in the court of appeals, and therefore the court of appeals had no occasion to weigh in on that distinctive argument. Bost insists that he raised the argument from the outset. According to him, he “plausibly alleged that, at the time he filed his lawsuit in May 2022, there was a substantial risk that counting mail-in ballots received after Election Day would harm his electoral prospects – including by diminishing his margin of victory.” 

If the court wants to decide the case narrowly in favor of Bost, it could focus on the fact that the 14-day rule obviously affects how and which votes are to be counted, and that it is only common sense that such a rule affects a candidate more directly and concretely than individual voters. But it turns out that this narrow argument in Bost’s favor is only his backup argument. The most fascinating aspect of the case at the Supreme Court level is a much more sweeping ruling that Bost urges in his brief.

Bost begins his brief by urging the court to adopt the following rule: “Candidates for office have standing to challenge the rules that govern their elections.” Of course, candidates should have standing to challenge rules that regulate the candidates directly, such as fundraising or spending limits. But, according to Bost, “candidates also have a distinct, particularized, and concrete interest in the rules that govern their elections, even when those rules do not operate directly on the candidate, but purport to regulate when and where the election will be held and when and how votes will be counted.” 

Bost highlights two big-picture benefits of such a blanket rule in favor of “candidate standing.”  First, the law of standing is already too complicated. Litigants, lawyers, district judges, and even law professors are often baffled by the seeming balkanization of rules, sub-rules, and exceptions in standing law. This in turn feeds the perception by some that the courts are not applying the law of standing evenhandedly. (Think of Justice Ketanji Brown Jackson’s searing accusation along those lines in her Diamond Alternative Energy v. EPA dissent just a few months ago, in which she stated that the court’s ruling gave “fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in th[e] Court than ordinary citizens.”) Second, if the court insists that candidates must prove the challenged rule will likely flip the outcome of the election, it will mean that minor-party candidates will never have standing, and even major-party candidates will only have standing to challenge blatant election illegalities if the election is close. 

In its friend-of-the-court brief, the United States supports Bost’s narrow argument that he in particular has standing to challenge the 14-day rule but is careful to oppose Bost’s proposed blanket rule. “Bost is incorrect . . . in more broadly arguing that he has a judicially cognizable interest in preventing a legally inaccurate vote count,” argues the solicitor general, “even if that will have no effect on his electoral prospects.” At oral argument, it will be interesting to see whether any of the justices shows an interest in Bost’s proposed blanket rule, or whether the argument will exclusively focus on Bost’s specific situation.