The U.S. Supreme Court ruled Wednesday that veteran downstate Republican Rep. Mike Bost has standing to pursue a federal lawsuit challenging the constitutionality of Illinois’ election law that allows mail-in ballots postmarked or certified by Election Day to be counted up to 14 days later.
The 7-2 ruling, in an opinion authored by Chief Justice John Roberts, overturned lower federal court rulings that Bost’s claims of injury by the law were “speculative” and that he lacked standing to challenge it. Roberts and the court majority ruled that candidates for office have a specialized interest, more “particularized” than voters, in how elections are conducted.
“Candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless of whether those rules harm their electoral prospects or increase the cost of their campaigns. 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,” Roberts wrote.
“Those who spend untold time and resources seeking to claim the right to voice the will of the people have ‘an undeniably different — and more particularized — interest’ in knowing what that will is,” he wrote.
Concurring in Robert’s decision were Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. Justice Amy Coney Barrett issued a separate opinion, which Justice Elena Kagan concurred in. Justice Ketanji Brown Jackson issued a dissent, which Justice Sonia Sotomayor concurred with.
In a statement issued by Judicial Watch, a GOP-aligned legal organization that supported the congressman’s lawsuit, Bost said he was “thankful” that the court “ruled strongly in our favor.”
“This is a critically important step forward in the fight for election integrity and fair elections,” Bost said. “I look forward to continuing to pursue this case as we navigate the next stages of the legal process. It’s vitally important that we restore the people’s trust in our elections.”
The ruling in the case, first filed in May of 2022, did not address the legality of Illinois’ post-Election Day vote counting and sent Bost’s challenge back to the federal courts in Chicago. But another case pending before the U.S. Supreme Court, challenging Mississippi’s five-day post-Election Day ballot counting law, could render Bost’s challenge moot.
The nation’s high court is considering the Oct. 25, 2024, ruling by a panel of the 5th U.S. Circuit Court of Appeals that contends the federal statute establishing a uniform day for federal elections, and the U.S. Constitution’s elections clause, requires all ballots to be both “cast by voters and received by state officials” by the end of Election Day.
The court’s decision on the Mississippi case could have wide-ranging ramifications for Illinois and as many as 27 other states and the District of Columbia, where local and state laws allow post-Election Day ballots to be counted. Illinois filed a brief in support of upholding the existing Mississippi law.
Illinois has taken several major steps to expand voting opportunities, including early and mail-in voting, and has allowed voters to tell local election authorities to permanently send them vote-by-mail ballots.
Bost, a six-term congressman from Murphysboro who represents the state’s 34 southernmost counties, challenged the Illinois law and received the backing of Judicial Watch, the National Republican Congressional Committee and the Republican National Committee.
President Donald Trump has regularly criticized mail-in voting, making baseless claims of fraud, and said all ballots should be cast and counted on Election Day. But even in challenging the law, Bost’s attorneys did not allege post-Election Day mail-in ballots were fraudulent. Instead, Bost argued the ballots were invalid. In contrast, Democrats have routinely been more effective at conducting organized early voting and vote-by-mail campaigns.
Bost alleged in his lawsuit that he suffered economic damages by having to extend his campaign and hire poll watchers to observe the post-Election Day counting of mail-in ballots.
Additionally, Bost claimed the post-Election Day ballots could lead to a smaller margin of victory, raising questions about his effectiveness in the minds of future voters. Bost has regularly won reelection since 2020 with more than 60% of the vote, though he survived a 2024 GOP primary challenge from now two-time GOP governor candidate Darren Bailey, 51% to 49%.
Illinois’ law has been defended, in part, by noting that the additional counting time also benefits members of the military who are casting votes overseas. Bost is chairman of the House Committee on Veterans’ Affairs.
In her dissent, Jackson criticized the majority for creating a new rule granting standing to political candidates, merely because they are seeking office, to federally challenge election laws. And she predicted it would “open the floodgates” to “disruptive legal action” even after an election is over.
“A public office is a public trust, and an election for that office is the ultimate expression of the will of the people, not a mere competition to be won or lost. In the Court’s (majority) telling, though, elections are a glorified national pastime — the competitors’ success is the main objective, and voters are mere bystanders who simply ‘lend’ their support,” Jackson wrote.
“When what is at stake is the overall fairness of the electoral process, it is the people’s shared interest in democracy itself (and not just the candidate’s job prospects) that hangs in the balance,” she wrote.