The US supreme court appeared sympathetic on Wednesday to a challenge brought by a Republican congressman to an Illinois law governing how the state counts mail-in absentee ballots received after election day.
The lawsuit challenging Illinois’ election law from Mike Bost, a Republican representative from Illinois, is viewed by Trump-aligned conservatives as an avenue to continue attacks on mail-in voting. Bost filed the suit to argue that the Illinois law allowing ballots to be counted up to two weeks after election day if they are postmarked by the deadline unconstitutionally allows an extension of the election period.
Arguments center on whether a federal candidate has standing to challenge the law, not whether the practice itself is constitutionally valid. Justices asked questions about whether they should view a political candidate as an “object” of the law – an entity for whom a regulation bears a direct consequence, and whether the odds of mail-in ballots tipping an election had bearing on whether a candidate had a right to challenge the law.
“You’re going to force people to come into court and show a bunch of polls and how that two percent margin might or might not make a difference in the end, when what you have is quite clear”, said justice Elena Kagan, questioning the state’s attorney Jane Notz. “What you have is a voting rule that harms somebody relative to what’s come before and that is a usual standing inquiry.”
Sixteen states as well as Guam, Puerto Rico, the Virgin Islands and Washington DC, accept and count mailed ballots received after election day when postmarked on or before election day. Eight states send a mail-in ballot to every voter while also offering in-person voting. Four of those states – Washington, Oregon, California and Nevada – also count late-arriving mailed ballots.
Republicans have been eager to challenge mail-in ballots, with Donald Trump centering it in his attacks on the electoral process. Trump issued an executive order in March instructing the attorney general to “take all necessary action” against states that are “including absentee or mail-in ballots received after Election Day in the final tabulation of votes for the appointment of Presidential electors and the election of members of the United States Senate and House of Representatives”.
The Brennan center, American Civil Liberties Union, League of Women Voters and other organizations immediately sued to block the order from taking effect.
The Illinois case reached the supreme court after lower courts threw Bost’s suit out, ruling that the conservative congressman in his fifth term did not suffer an injury and had no standing to sue. The appeal argues that the cost of staffing a campaign past election day is a financial injury giving him sufficient standing to challenge the law.
“[C]andidates have standing to challenge the rules that govern their elections,” the appeal argues, “especially when … the challenged rule produces an inaccurate final tally.”
“The whole election system operates on the premise that we care about more than the final binary outcome,” argued Paul D Clement, former solicitor general, before the justices.
Clement also argued that neither elections officials nor courts, nor a political candidate should have to guess about how mailed ballots might affect an election to have standing to challenge the rule ahead of an election, even if the odds of an unexpected outcome appear remote.
“Past results don’t guarantee future outcomes,” Clement said. “So in in the Russian roulette hypothetical, even if its a one in a hundred chance, the fact of the matter is a person is forced to engage in that gamble, and the concrete interest is avoiding the gamble that implicates that person’s concrete risk.”
The ACLU supports Bost’s appeal. “While the ACLU strongly opposes Congressman Bost’s position on the merits and has repeatedly defended similar state laws from challenge, the rules that determine whether Bost has standing to even bring his anti-voter lawsuit also apply to civil rights groups when they bring suit to expand or protect the rights of voters,” the group said on its website.
