The Department of Justice (DOJ) filed a friend-of-the-court brief on July 29 in support of a GOP congressman’s challenge to an Illinois law that allows ballots received 14 days after Election Day to be counted.

Eighteen states, including Illinois, accept mailed ballots received after Election Day if they bear a postmark from or before Election Day, according to a National Conference of State Legislatures report. The District of Columbia, Guam, Puerto Rico, and the Virgin Islands also follow the same rule.

A friend-of-the-court brief is filed by a person or organization that is not a party to the case but has an interest in its outcome, and may contain extra information that could affect the court’s decision.

The DOJ’s filing comes after the Supreme Court agreed on June 2 to hear the case brought by Rep. Michael Bost (R-Ill.), Laura Pollastrini, and Susan Sweeney, who were Republican presidential elector nominees for the 2020 and 2024 federal elections, are also petitioners in the case, which is known as Bost v. Illinois State Board of Elections.

The Supreme Court appeal deals with the question of legal standing, as opposed to the merits of the lawsuit contesting the state law. If the lawmaker wins at the high court, his stalled lawsuit would be reinstated and would continue its journey in the lower courts.

Standing refers to the right of someone to sue in court. A party must show a strong enough connection to the claim to justify participating in a lawsuit.

If the lawsuit ultimately succeeds, it could open the door to more lawsuits being filed in other states against the late counting of ballots.

Bost argued in a petition filed in November 2024 that the counting of ballots after Election Day drags on too long and violates the U.S. Constitution.

“Federal law sets the first Tuesday after the first Monday in November as the federal Election Day,” the petition said.

State laws allowing ballots to be accepted and counted after Election Day are preempted, or overridden, by the Constitution’s elections and elector clauses, the petition said.

Bost argues he has standing in the case because he incurs expenses in running his campaigns for an extra two weeks to keep an eye on the receipt and counting of ballots. He also argues he has an interest as a candidate in ensuring that validly received ballots are accurately counted, according to the petition.

“For over 130 years, this Court has heard claims brought by federal candidates challenging state time, place, or manner regulations affecting their federal elections,” the petition reads. “Until recently, it was axiomatic that candidates had standing to challenge these regulations.”

Bost sued the state elections board, but a federal district judge ruled in July 2023 that he lacked standing to proceed. Standing cannot be established merely based on his status as a political candidate and voter, the court held.

In August 2024, the U.S. Court of Appeals for the Seventh Circuit affirmed. The appeals court found Bost had presented a “generalized grievance affecting all Illinois voters” that was not “a sufficiently concrete and particularized injury” to support standing.

A concrete injury is one that is real, as opposed to abstract. A particularized injury is one that affects a plaintiff individually.

In this case, Bost “has plausibly pleaded standing as a candidate to challenge Illinois’s law requiring the counting of certain ballots received after election day,” the brief filed by the department’s top Supreme Court attorney, Solicitor General D. John Sauer, said.

In other words, the department is saying Bost has made a legally plausible argument that he has standing to challenge the state’s late-counting law.

The state law “causes him a cognizable injury because the additional late votes pose a risk of making him lose his election,” the brief said.

A cognizable injury is an injury that a court can address.

“Moreover, the law further injures him by causing his campaign to incur additional costs for monitoring the counting of the extra ballots to mitigate the risk they pose,” the brief said.

However, the department rejected Bost’s broader argument that he has “a judicially cognizable interest in preventing a legally inaccurate vote count even if that will have no effect on his electoral prospects.”

What Bost describes is “not a concrete and particularized injury.” The Supreme Court should not accept the lawmaker’s invitation to write a categorical rule saying candidates always possess standing to broadly challenge rules governing elections, even if the rules don’t hurt their electoral prospects, the brief said.

The Supreme Court is expected to hold an oral argument in the case in its new term that begins in October.

This article by Matthew Vadum appeared Aug. 1, 2025, in The Epoch Times.

Photo: Rep. Michael Bost (R-Ill.)