Supreme Court revives GOP congressman’s absentee ballot suit that could spur more election litigation

By John Fritze, CNN

(CNN) — The Supreme Court on Wednesday backed a Republican congressman from Illinois who is challenging a state law that allows mail ballots to be received after Election Day, a decision that may make it easier for other candidates to challenge voting laws – even if they ultimately win their election.

The decision, written by Chief Justice John Roberts, was 7-2 with two of the court’s liberals dissenting.

“Candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the cost of their campaigns,” Roberts wrote. “Their interest extends to the integrity of the election—and the democratic process by which they earn or lose the support of the people they seek to represent.”

The congressman, Michael Bost, challenged an Illinois law that allows ballots to be received up to two weeks after Election Day, as long as they are postmarked by the election. Bost sued in 2022, claiming that the Illinois law ran afoul of a federal law that sets a uniform day for federal elections.

Bost did not raise claims of fraud at the Supreme Court, but President Donald Trump has repeatedly railed against the expansion of mail-in ballots during the Covid-19 pandemic, falsely blaming his 2020 election loss on those policies. Illinois changed its law long before the pandemic in 2005.

“Today’s ruling could open the door to a lot of litigation — and potential chaos — on the far side of the next contested election,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

“If candidates will generally have standing to challenge how votes are counted in any election they’re running in, that could dramatically expand the horizon of legal challenges that can be brought challenging even those elections that were completely by the book,” Vladeck said, “potentially injecting more uncertainty in those critical days and weeks after Election Day going forward.”

Lawsuit had been thrown out

The question before the Supreme Court was not whether Bost’s challenge had merit, only whether he would be allowed to continue his case. The Supreme Court is considering a separate appeal challenging a Mississippi law that lets the state receive ballots up to five days after the election as long as they are postmarked by Election Day.

The congressman’s lawsuit was effectively thrown out before it began because, a federal trial court ruled, he did not have standing to sue.

“This is a critically important step forward in the fight for election integrity and fair elections,” Bost said in a statement, adding that he would continue to pursue his case as “we navigate the next stages of the legal process.”

Plaintiffs must demonstrate a “concrete” and “particularized” injury before their suit may move forward in federal court. Lower courts found that Bost – who won reelection in 2022 with more than 75% of the vote – failed to meet that burden and so his case was dismissed.

Bost argued that candidates should have a kind of default standing to sue over election laws affecting their own races. At the very least, he added, the state’s ballot law required him to keep staff on the payroll weeks after Election Day to monitor the counting at considerable expense.

Liberal Justice Ketanji Brown Jackson, in an dissent joined by Justice Sonia Sotomayor, said Wednesday’s opinion could “destabilize” the elections process by inspiring more litigation.

“By carving out a bespoke rule for candidate-plaintiffs — granting them standing ‘to challenge the rules that govern the counting of votes,’ simply and solely because they are ‘candidates’ for office — the court now complicates and destabilizes both our standing law and America’s electoral processes,” Jackson wrote.

Pocketbook injuries are a classic harm that often get plaintiffs through the courthouse doors to establish standing and continue their case. During oral arguments in October, conservative Justice Brett Kavanaugh at one point referred to Bost’s expenses based on the law as “just obvious standing.”

Justice Amy Coney Barrett, who agreed with the bottom line result, wrote a concurring opinion on that point. Barrett said she would have taken a more limited approach, holding that Bost had standing because of the money his campaign had spent.

Her concurring opinion was joined by Justice Elena Kagan, a liberal.

“Rather than take this straightforward path, the court charts a novel one,” Barrett wrote. “I cannot join the court’s creation of a bespoke standing rule for candidates. Elections are important, but so are many things in life. We have always held candidates to the same standards as any other litigant.”

During the arguments in early October, Illinois officials had countered that candidates must essentially show that a rule change could cause a substantial risk of losing a race. But that was an argument that found little purchase on the Supreme Court, with Roberts calling that idea a “potential disaster” that would force courts to play political prognosticator.

Kagan, a member of the court’s liberal wing, framed the case as a lawsuit “in search of a problem.” She noted that courts allow pre-election challenges to voting rules “all the time” without running into standing problems.

“There’s hardly an election rule that gets passed in any battleground state that isn’t challenged,” she said.

Bost, a former state lawmaker who was first elected to Congress in 2014, represents Illinois’ southernmost congressional district. He won the 2024 election with 74% of the vote.

This story has been updated with additional details.

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