Candidates for office should be able to sue in advance to find out when the election is.

T he U.S. Supreme Court doesn’t like election cases. It never has. Election cases push the justices to end up on a partisan side, which means that they get branded for siding with the team that appointed them, or denounced for betraying it. As a result, when applying areas of the law that call for judgment or discretion to election cases, the Court has tended to cast a skeptical eye and look for the exits.

That skepticism was still on display last week in the argument of Bost v. Illinois Bd. of Elections, but it was mixed with the justices’ concern that limiting standing to sue in pre-election challenges would only thrust them deeper into the partisan morass of post-election challenges.

Late-Arriving Votes

Bost is a suit challenging an Illinois law allowing votes to be counted if they arrive within two weeks of Election Day. The lawsuit argues that this violates the federal law setting a uniform national election day for House elections, 2 U.S.C. §7, which was enacted under the power of Congress in Article I, Section 4 and has been on the books since 1875. Presidential elections have been on a uniform day since 1845, after Samuel Morse demonstrated how the telegraph could report election results immediately. Senate elections have been held on a uniform day since popular elections were introduced in 1914. Some states long held a House vote before Election Day — Maine was the last to abandon that practice in time for the 1960 election — but the uniform date is designed to end the election.

A 2024 Fifth Circuit decision, Republican National Committee v. Wetzel, was the first by a federal appeals court to consider this question, and ruled that Mississippi’s law counting late-arriving votes violates federal law. Mississippi has petitioned for certiorari, a petition the Court will take up at its conference this Friday. (The lead lawyer on the petition is Scott Stewart, who argued Dobbs, but is here effectively on the same side as Marc Elias defending Mississippi’s law.) But Bost won’t resolve that question; the sole question in the case at this stage is whether a candidate for Congress has standing to sue to challenge the Illinois law.

Too Early or Too Late?

Complaints about how elections are handled have to run a gauntlet. Standing is a major issue in post-election challenges, in which candidates can challenge the rules of an election that’s already been held only if they can show that the lawsuit could change enough votes to alter the outcome. That’s a sound application of the principle that courts sit to decide live cases and controversies, not to issue general discussions of the law. Moreover, if an election’s outcome has been settled, it’s too late for the courts to get involved.

When pre-election challenges are brought too close to Election Day, there’s a different problem: the Purcell principle, named for the 2006 Purcell v. Gonzalez decision, under which the federal courts should avoid throwing out election rules during the run-up to an election because “court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Purcell is not a standing doctrine but a rule of prudence, drawn in part from the recognition that problems with election rules (whether due to a bad court decision or a law or practice that is deservingly enjoined) should be identified far enough in advance that the legislature has the opportunity to fix the problem.

So, if the Court’s doctrines limit cases in the immediate aftermath of an election and bar them either right before or long after the election, that would seem to argue in favor of encouraging litigants to sue early and settle the rules of the road in advance. Before an election, there’s no question that the rules could change the outcome, at least if an election is close enough. But does that mean every candidate could sue over any law? And if not, how does the Court decide who does and doesn’t have a concrete injury-in-fact giving them standing to sue, when an election is months away, no votes have been cast, and most elections are likely to be decided outside the margin of recounting?

The Right Injury

The plaintiff in Bost is Republican Representative Michael Bost, who represents Illinois’ Twelfth District (the most Republican district in the heavily gerrymandered state). His six-point margin of victory in 2018 is the only time in his decade in the House that he has won by less than double digits, and the district is redder now after the 2020 redistricting than it was then. The lawyers for Illinois say that Bost hasn’t offered allegations, let alone evidence, that late ballots might cost him an election or cause him any other harm to an interest protected by law. Bost, represented by Judicial Watch and Paul Clement, says he doesn’t have to.

Bost has two theories of standing. The more complicated and ambitious theory is that candidates compete in elections regulated by law, so every candidate suffers harms as a competitor when unlawful rules are used. That’s because unlawful rules have the potential to change the outcome or at least the vote totals – and a lower vote total can affect things like fundraising and the likelihood of facing challengers in the future. (Unstated at the argument, but likely to be on the justices’ minds after this morning’s argument in Louisiana v. Callais, vote totals can also have legal effects in cases such as redistricting litigation. In some states, they can affect a minor party’s ability to stay on the ballot.) When the lawyer for Illinois argued that “a smaller margin of victory has no real-world consequences,” an incredulous Justice Samuel Alito asked, “It has no real-world consequences? Really?”

Another competitive harm is to a candidate’s reputation if he is known to have won an election under, in effect, rigged rules. Justice Neil Gorsuch asked a hypothetical about harming a candidate’s reputation if Illinois just openly decided to only choose a random sample of votes to cast — where neither side could know in advance whose prospects that would harm.

The much simpler case for standing, and one that may well prove easier for the justices to swallow, is that candidates in Bost’s position suffer a “pocketbook” injury, the most traditional type of injury giving rise to standing: running a campaign that goes on with poll-watching and possibly persuasion and turnout for two extra weeks costs more money, and no serious candidate will be able to refrain from spending that money. As the League of Women Voters pointed out in an amicus brief, in a phrase echoed at the argument by Clement, Alito, and Justice Brett Kavanaugh, it would be “political malpractice” not to do so. Kavanaugh added that candidates who have been safe in their seats a long time deciding not to spend money is how they end up losing in the real world.

The justices wrestled with how to craft a rule that distinguishes who is and isn’t harmed enough to sue. Candidates may be only secondary targets of the law, which regulates voters — but any one voter might not submit a late ballot, whereas a candidate is competing in an election where someone is sure to have votes sent in late. Bost may not be in much danger of a close election, but several of the justices (even Justice Elena Kagan) were uncomfortable with being asked to put federal judges in the position of having to read polls to figure out which candidates have a real chance of both winning and losing. As Kavanaugh told the lawyer for Illinois when she tried gamely to defend the lower court decisions asking Bost to prove that his election would be close:

You say rely on polling data. Are polls always reliable? . . . So we bring to the table polling data that shows you’re down 20. Candidates that are down 20 sometimes make late breaks for it and win. Happens all the time.

And you said expertise of campaign advisers. I respect them as much as anyone, but they can be wrong and they don’t have perfect crystal balls either. I don’t understand a standing rule that therefore depends on prognostication.

Chief Justice John Roberts added, “There was a lot of information for . . . Tom Dewey and Charles Evans Hughes, and, you know, they both went to bed thinking they were president. And it just seems to me that the ability to predict has . . . not been proven to be infallible.” Justice Neil Gorsuch added that there could be “something unseemly about a federal court in the middle of an election saying you don’t have standing because you’re going to win or you do have standing because you’re going — you might lose and that that itself might influence the electoral process?”

Roberts and Kavanaugh were alarmed by the practical consequences of saying that nothing could be done until after the election was already held under the wrong rules. As Roberts put it, this “is a potential disaster. . . . 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, right? And so it’s going to be in the middle, the most fraught time for the Court to get involved in electoral politics. That’s when you say we should jump in.” Kavanaugh added, “If we’re not thinking ahead to that, we’re going to walk into something.”

The argument went badly for Illinois when Kagan agreed a bit too vigorously with Illinois’s view that Bost hadn’t done enough to allege facts that could have shown a competitive election — while Kagan remained open to allowing suits if the proper allegations were made. When the Illinois lawyer bought into Kagan’s proposed standard, Kavanaugh interjected, “You’re walking away from a lot of your brief there,” and Justice Ketanji Brown Jackson agreed with him.

But all of that may be moot if the Court simply rules that the Illinois law makes Bost’s campaign more expensive. The Court has sometimes balked at finding a pocketbook injury when it seemed like a side effect of a law, as it did when it concluded that states didn’t have standing to challenge the Obamacare mandate even though compliance with it imposed paperwork reporting costs on the states — whereas, in a decision a month earlier, the Court had found in another tax case that tax reporting requirements were a separate injury from the tax itself and so were not barred by the Anti-Injunction Act’s rule that taxes can be challenged only in tax refund suits. In this case, Alito analogized the extended campaign to telling sprinters in a 100-meter dash that they would have to run 105 meters. If the Court resolves the case on that basis, it could avoid having to craft a more detailed rule, and it would not necessarily open the floodgates to candidates suing over rule changes that do not impose such obvious additional costs on campaigns as a rule that lengthens the contest.