A conservative legal watchdog group says it hopes the Supreme Court will squarely decide this term if political candidates can challenge state laws that allow mail-in ballots to be counted after Election Day and if those laws are legal, given there’s only one federal Election Day.
Judicial Watch lawyer Russ Nobile said that courts have decided election-related cases from candidates for 135 years, but it wasn’t until the 2020 election and its litigation fallout when courts began pushing back on candidates initiating lawsuits.
Lower courts have ruled that candidates lack standing, or sufficient legal injury, to bring lawsuits. Such rulings allow judges to dismiss cases without deciding a lawsuit’s merits.
That’s what happened to Judicial Watch client Rep. Michael Bost, Illinois Republican, who challenged a state law that allows mail-in ballots to be counted 14 days after Election Day.
“The [U.S.] Supreme Court had been hearing cases on candidate-based challenges for 135 years … they just assumed jurisdiction, they assumed injury,” said Mr. Nobile. “This case should help courts have better answers to when candidates have standing going forward.”
The 7th U.S. Circuit Court of Appeals said that candidates did not have to post election monitoring in 2022 for late ballots and that it was too early to sue over the 2024 elections, which were two months away at the time.
The case is Michael J. Bost, et al., v. Illinois State Board of Elections, et al.
Meanwhile, the justices are considering whether to hear a dispute out of the 5th U.S. Circuit Court of Appeals, which ruled it is illegal for Mississippi to count ballots up to five days past Election Day.
During the COVID-19 pandemic, Mississippi extended the period for receiving ballots up to five days past Election Day. The state kept the change after the pandemic ended, prompting the challenge.
The appeals court decision could curtail voting laws in other states: More than 18 states and territories allow ballots to be received past Election Day, according to the National Conference of State Legislatures.
The case is Michael Watson, Mississippi secretary of state v. Republican National Committee, et al.
It would take four justices to vote in favor of hearing it for oral arguments to be granted.
“The question about when ballots are due is something the court needs to resolve,” Mr. Nobile said. “No court in 2020 ever addressed the merits on the election day statutes in what it displaced in state authority.”
“I don’t think they can have ballots be due in the Fifth Circuit but not elsewhere,” he said. “They have to probably resolve this merits question.”
Judicial Watch President Tom Fitton said the issue of standing has paused other lawsuits contesting mail-in ballots that arrive after Election Day. He said if the high court rules that a candidate does not have standing, it could serve as a “green light” to the left to challenge and manipulate election practices.
“These votes count in terms of outcomes,” Mr. Fitton said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.