Supreme Court poised to revive GOP congressman’s absentee ballot suit that could spur more election litigation

By John Fritze, CNN

(CNN) — A majority of the Supreme Court on Wednesday indicated it will back a Republican congressman from Illinois who is challenging a state law that allows mail ballots to be received after Election Day, a decision that would let him proceed with a potentially explosive lawsuit that lower courts had rejected.

Rep. Michael Bost’s appeal at the Supreme Court isn’t focused on the ballot issue itself but rather it raises the question of whether federal candidates may sue over election regulations — even if, as in Bost’s case, they represent a safe district and are highly favored to win election.

Though technical, the case could have sweeping implications for election litigation, potentially opening federal courts to challenge a wide range of voting rules.

A federal appeals court in Chicago stopped Bost’s suit before it got underway, holding that he didn’t have what’s known as “standing” to sue over the state’s law. In federal court, plaintiffs must demonstrate a “concrete” and “particularized” injury before their suit can move forward. Bost argued that candidates, by the nature of being candidates, should have a kind of default standing to sue over election laws.

Illinois officials countered that candidates must essentially show that the rule change could cause them to lose their race.

But most of the court’s conservative justices balked at that reading, concerned that it would require courts to assess a candidate’s potential success in an upcoming election. And they agreed with Bost’s argument that a ruling against him might shift election litigation to right up against – or immediately after – Election Day.

“What you’re sketching out for us is a potential disaster,” Chief Justice John Roberts told an attorney representing the Illinois State Board of Elections. “You’re saying if the candidate is going to win by 64 percent, no standing. But if the candidate hopes to win by a dozen votes…then he has standing.”

That, the chief justice said, would likely force the court to not only make political determinations but to do so during “the most fraught time for the court to get involved in electoral politics.”

That was a theme Justice Brett Kavanaugh repeatedly returned to throughout the course of the nearly two-hour argument, asking each attorney what might happen if a major voting case is pushed off until after an election. Then, a losing candidate might be able to more clearly establish standing, but the case might risk a court invalidating votes that had already been cast.

“If we’re not thinking ahead to that,” Kavanaugh warned, “we’re going to walk into something.”

Bost made a broad claim that all candidates have standing to challenge voting rules. The Trump’s administration told the court that Bost should be permitted to sue, though it departed from some of his more sweeping positions.

Bost sued in 2022, claiming that an Illinois law allowing mail-in ballots to arrive up to two weeks after Election Day ran afoul of a federal law that sets a uniform day for federal elections. As in other states, the mail-in ballots at issue must be postmarked on or before the election.

To establish standing, Bost also argued his campaign would be forced to pay staff for an additional two weeks to monitor the return of absentee ballots. Justice Samuel Alito at one point suggested that alone appeared to be a “straightforward” injury that should have allowed Bost’s lawsuit to proceed.

Justice Elena Kagan, a member of the court’s liberal wing, framed the case as a suit “in search of a problem.” Kagan noted that a flood of election litigation filed by voters, political parties and others makes its way through the federal court system during every election season.

“There are perfectly easy ways for a party to say why a new rule is going to harm them,” Kagan said, adding that it seemed as if Bost was “asking to create a whole new set of rules when everything has been proceeding just fine.”

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