(The Daily Signal)—The Supreme Court heard arguments Wednesday about an Illinois law that allows ballots to be counted that arrive up to 14 days after Election Day.
The plaintiffs, Rep. Mike Bost, R-Ill., and two presidential electors from the state, contend that federal law established Election Day and Illinois allows votes to come in two weeks longer than federal law allows, which would make such ballots effectively unlawful. Thus, unlawful ballots could cost Bost the election—or reduce his margin for victory.
The plaintiffs also argued the Bost campaign is further injured because it has to pay staff for an additional two weeks after the election.
Plaintiffs are represented by the watchdog group Judicial Watch.
Federal law 2 U.S. Code Section 7 states Election Day for federal offices is the Tuesday after the first Monday of November in even-numbered years.
Illinois says mail-in ballots must be postmarked by Election Day but can arrive up to two weeks later.
A district court and a 2-1 majority of the 7th U.S. Circuit Court of Appeals determined the plaintiffs in the case of Bost v. Illinois Board of Elections lacked standing to challenge the state law. In other words, the lower courts determined that the plaintiffs challenging the law actually weren’t harmed by it, so they couldn’t bring a suit.
The lawsuit was first filed on May 25, 2022.
The case should be an easy one for the Supreme Court, said Hans von Spakovsky, manager of the Election Law Reform Initiative at The Heritage Foundation.
“The decision of the lower courts was absurd,” von Spakovsky told The Daily Signal. “If a federal candidate whose election is affected by a state election law does not have standing to sue over that state election law, then no one has standing.”
The two Illinois presidential electors joining Bost in the case are Laura Pollastrini and Susan Sweeney. If plaintiffs gain standing in this case, it would almost certainly pave the way for candidates to challenge state laws that allow ballots to arrive well after Election Day.
Rather than the merits of the law itself, the arguments before the Supreme Court concerned the issue of whether Bost and the electors had standing to bring the case in the first place.
But if the high court determines the lower courts improperly threw out the case based on standing, the lower courts will then have to rule on the merits of the ballot law.
The state of Illinois argued Wednesday that Bost, first elected in 2014, lacks standing in part because there is little chance he could lose a reelection contest.
“There are some districts where the Republican registered parties are 98%; Democrats, too,” Justice Sonia Sotomayor noted in her question to the plaintiffs. “Your rule [allowing any candidate to have standing on election law] would say that the candidate who has not just an insubstantial, but a statistically almost impossible chance of winning or losing—that that candidate can come in and seek a change of that rule. Correct?”
Paul Clement, representing Bost and the electors, said any candidate should have standing in an election law case.
“As to the 2% voter, I’m going to stand with the 2% candidate. I stand in lockstep with the Socialist Workers Party, and however many percentage votes John Anderson got,” Clement said, referring to 1980 independent presidential candidate John Anderson.
Sotomayor replied, “Those are strange bedfellows you’re taking.”
Clement said, “But I’m delighted to have those bedfellows, because that’s the way we think about elections in this country.”
Illinois Solicitor General Jane Elinor Notz argued for a much stricter standard for a candidate to have standing to bring election law litigation.
Notz said “the substantial risk of losing an election” would be the key standard for standing in an election law case. Other examples she cited were “risk of not getting on the ballot” or “risk of not qualifying for public funding.”
Justice Neil Gorsuch later asked if it might be “unseemly” for a federal court to prognosticate through its rulings what candidates have a good chance and what candidates don’t.
Notz replied, “I don’t think it’s more unseemly than in other cases where a plaintiff seeks to establish standing based on a substantial risk.
“What I think a lot of people believe to be true, which is that loosening the rules for counting votes like this generally hurts Republican candidates, generally helps Democratic candidates,” Justice Samuel Alito said. He then asked why the plaintiffs didn’t include a more direct argument about that in their written brief that they filed with the lower court: “Why didn’t you pursue that? Why didn’t you try to do something with that?”
Clement replied, “When you plead a case in district court, you don’t expect to be in the Supreme Court defending every pleading that was sufficient understanding.”
The justices who were appointed by Republican presidents generally seemed more open to granting standing, while the three Democrat appointees seemed more skeptical.
However, Justice Clarence Thomas suggested it’s not clear Bost is harmed by the law.
“You could argue that he will actually benefit from the additional time,” Thomas said. “Someone has to benefit, or there wouldn’t be a risk of competitive harm.”
Meanwhile, Justice Elena Kagan seemed to be of two minds on the standing question.
“It seems quite inconsistent with our standing law to say, ‘Oh, we just have, like, an automatic rule for candidate standing.’ On the other hand, I’m sort of in sympathy with the view that this bar should not be all that high and that you shouldn’t have to say, ‘Here are the polls that show I could lose as a result of this rule,’” Kagan said. “It’s like, all you have to do is come in and say why it is that the rule puts you at a disadvantage relative to what’s come before.”
Utah is the only other state that accepts ballots 14 days after Election Day, according to the National Conference of State Legislatures. Alaska and Maryland allow ballots postmarked by Election Day to be counted up to 10 days after the election. Meanwhile, 10 other states allow ballots to arrive seven or fewer days after Election Day.
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