Justices seem willing to allow candidate to challenge elections law on mail-in ballots

At Wednesday’s argument in Bost v. Illinois Board of Elections, not many of the justices worked hard to hide their cards. It appears there is a substantial majority, perhaps as many as seven justices, leaning toward reversing the lower federal courts’ holding that Rep. Michael Bost, a Republican member of Congress, lacked a legal right to sue, known as standing, to challenge an Illinois law allowing mail-in ballots postmarked by Election Day to be counted even if they arrive as many as 14 days later. Perhaps the bigger mystery is what precise test for “standing” the court will adopt for election-law cases.

In federal court, plaintiffs only have standing to sue if they properly allege that the challenged action or law causes them “concrete and particularized injury in fact.”  Plaintiffs are not allowed to challenge laws in federal court on the ground that they are citizens or even taxpayers. They must allege some more specific personal harm that raises the claim to something beyond a mere “generalized grievance.”

Former U.S. Solicitor General Paul Clement, arguing for Bost, opened by boldly proposing a rule that would recognize standing for any candidate to challenge any material change in the way an election will be conducted, especially how and when votes are to be counted.

Justice Elena Kagan resisted Clement’s proposal of what might be called “candidate standing.” “It’s not enough to just walk in and say: Hi, I’m a candidate, and I’m suing,” said Kagan. “[Y]ou have to show … some kind of substantial risk … that the new rule puts you at an electoral disadvantage relative to the old rule.”

Kagan went on to reveal more of her thinking. “On the other hand, I’m sort of in sympathy with the view that this bar should not be all that high,” she said. “[Y]ou shouldn’t have to say: Here are the polls that show I could lose as a result of this rule.” 

This position – that candidates should not have to prove that the challenged law might cause them to lose an election they otherwise would probably win – appeared to separate Kagan from Justices Sonia Sotomayor and Ketanji Brown Jackson, who both said they could not see Bost having standing because even he repeatedly admitted that the 14-day rule could not conceivably cause him to lose what is currently considered a safe congressional seat for Republicans.

Although there seemed to be little appetite for Clement’s unabridged “candidate standing” proposal, several justices seemed comfortable with Kagan’s view that it would suffice if candidates properly alleged that the challenged law likely puts them at an electoral disadvantage relative to the old rule. Justice Neil Gorsuch, for example, asked Clement, “If you could just answer whether you could satisfy Justice Kagan’s standard … as I understand the question, it doesn’t require a competitive disadvantage. It just says: Compared to the law, what I understand the law to have been, I am at a disadvantage.” 

Clement responded that Bost could satisfy that standard for two reasons. First, he believed the rule imperiled his margin of victory; and, second, he had to spend more money on poll watchers and monitors during the additional 14 days.

Even Illinois Solicitor General Jane Notz, arguing for the board of elections, told Kagan that she would have no problem with Kagan’s suggested test. “I actually don’t think we would have any problem at all with that rule,” Notz said. “I think the problem is … that,” based on the facts that he has alleged, “Congressman Bost can’t show standing based on that rule,” asserted Notz.

Justice Brett Kavanaugh and Jackson – seemingly from opposite sides of the aisle concerning the disposition of this case – immediately jumped on that. “You’re walking away from a lot of your brief there,” Kavanaugh warned Notz. “Yes, you are,” added an obviously concerned Jackson. Later, Jackson gave her a chance to walk back her agreement with Kagan.

“So I’m a little bit worried about your concession to Justice Kagan” that if “the challenged regulation harms someone relative to what had come before, that would be enough,” said Jackson. That rule would encompass the claim that the challenged law would likely affect the margin of victory, she continued, which by itself should not be enough to support standing. The impact would have to “make a difference in the election. And I thought that was your bottom line,” Jackson said. 

Notz responded by saying she did not mean to say that a diminished margin of victory alone could support standing. Two properly alleged claims could support standing, Notz explained. First, a claim that the law would affect the outcome of the election would of course establish standing. Second, if the law were sufficiently extreme, the candidate could allege that it would likely taint his or her victory to the point where it might well constitute reputational injury. 

One issue that particularly troubled Kavanaugh was that of remedy. When Michael Talent, an assistant to the solicitor general, took the lectern to argue on behalf of the federal government, Kavanaugh asked, “if there isn’t standing for these kinds of challenges to ballot-receipt deadlines for U.S. House elections pre-election … and they’re all forced post-election, what [does it] look[] like next November or December?”

Talent agreed that a ruling against standing in this case would have that effect – that is, to force such “litigation into the post-election context” – and he further warned that an outcome-determinative test for standing in election cases would leave only the major parties able to litigate.

“And if the deadlines were found to be unlawful … have you thought ahead to what the remedy would be …?” Kavanaugh followed up. “Because, if we’re not thinking ahead to that, we’re going to walk into something.” 

Talent did not mince his words. “I can’t imagine it would be easy or good to determine,” he answered.