The Supreme Court seemed receptive on Oct. 8 to a Republican congressman’s argument that he should be allowed to challenge an Illinois law that allows the counting of ballots for two weeks after Election Day.
Arguments in the case focused on the question of legal standing, as opposed to the merits of the lawsuit contesting the Illinois statute.
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 lawmaker wins at the high court, his stalled lawsuit would be reinstated and would continue its journey in the lower courts.
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.
The case is known as Bost v. Illinois State Board of Elections.
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 follow the same rule.
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.
State laws allowing ballots to be accepted and counted after Election Day are preempted by the Constitution’s elections and elector clauses, the petition said.
Bost argued 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 argued that as a candidate, he has an interest 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 that Bost had presented a “generalized grievance affecting all Illinois voters” that was not “a sufficiently concrete and particularized injury” to support standing.
Several justices suggested Illinois was trying to make the standing issue more complicated than it should be.
During oral argument on Oct. 8, Justice Samuel Alito questioned Illinois Solicitor General Jane Notz after she told the justices that being a candidate in itself wasn’t enough to establish standing.
“Are you seriously arguing that whether or not the allegations here are sufficient requires an analysis of the particular background and experience of the candidate who files the complaint?” the justice asked.
Alito asked why the fact that a candidate has a “pocketbook injury,” meaning he has to expend resources in the post-Election Day period, is not sufficient to show standing, and he asked whether the counting of ballots requires the expenditure of resources.
Notz said Bost’s proposed “blanket candidate standing rule” is that “candidates always have standing to challenge the rules that govern their elections because any election rule can cause a single vote change in the final tally.”
The rule proposed by Bost “would cause chaos for election officials while saddling federal courts with resolving abstract policy disputes,” she said.
The Supreme Court “should hold candidates to the same standing requirements as every other plaintiff,” she said.
Chief Justice John Roberts told Notz, “What you’re sketching out for us is a potential disaster.”
Not allowing preelection challenges by candidates would be problematic because it would force the judiciary to get involved at “the most fraught time for the court to get involved in electoral politics,” Roberts said.
Justice Brett Kavanaugh said delaying election challenges may cause problems.
“I’m worried about the chaos of post-election litigation and how would that play out in a circumstance like a challenge to this particular ballot-counting rule,” Kavanaugh said.
Justice Ketanji Brown Jackson expressed concern that the Supreme Court may be weakening the standing requirement if it rules in favor of Bost.
“It seems to me crucial to uphold this idea that [a showing of] harm is required for standing purposes,” she said.
If the court accepts the idea that “a candidate is harmed if their margin of error changes even if it doesn’t make a difference in the election,” the court is opening up avenues for a lot of post-election challenges that it wouldn’t otherwise have, Jackson said.
Bost’s attorney, Paul Clement, said if his side’s theory of the case is correct, Illinois’s prolonged count is illegal.
“Those unlawful ballots could cost Congressman Bost the election or at least reduce his margin of victory, and he has to pay his campaign staff for two extra weeks,” Clement said. “All of that means that Congressman Bost has standing three times over.”
The lower court’s decision is “dangerous” because it puts federal courts “in the uncomfortable position of having to pick the political winners,” Clement said.
This article by Matthew Vadum appeared Oct. 8, 2025, in The Epoch Times.
Photo: Chief Justice John Roberts