Supreme Court revives Illinois congressman's lawsuit challenging law for late-arriving ballots

Washington — The Supreme Court on Wednesday revived an Illinois congressman's lawsuit challenging a state law that allows mail-in ballots received up to 14 days after Election Day to be counted.

The high court divided 7-2 in siding with Congressman Michael Bost, an Illinois Republican who challenged his state's law for counting late-arriving ballots. The high court found that he has the legal right to sue over the rules that govern the counting of votes in his election to Congress. Chief Justice John Roberts authored the opinion for the majority, and Justices Sonia Sotomayor and Ketanji Brown Jackson dissented.

The court's decision reverses a ruling from the U.S. Court of Appeals for the 7th Circuit, which found that Bost lacked the legal standing to sue and affirmed a district court decision dismissing Bost's case. The Supreme Court sent the case back to the lower courts for further proceedings.

"Under Article III of the Constitution, plaintiffs must have a 'personal stake' in a case to have standing to sue," Roberts wrote. "They must, in other words, be able to answer a basic question: 'What's in it to you?' Congressman Bost has an obvious answer: He is a candidate for office. And a candidate has a personal stake in the rules that govern the counting of votes in his election."

The decision from the Supreme Court allows Bost's challenge to Illinois' ballot-counting law to move forward. The legality of Illinois' law was not at issue in the case. 

The high court is, however, set to decide later in its term whether federal law prohibits states from counting mail-in ballots that arrive after Election Day in a case involving Mississippi's voting procedures.

Justice Amy Coney Barrett agreed with the outcome of the case, but disagreed with the majority's reasoning. In a concurring opinion joined by Justice Elena Kagan, Barrett said the majority's decision was "unmoored from precedent" and "unnecessary." She said that Bost can sue because he suffered a "pocketbook injury," since the counting of late-arriving ballots required him to run his campaign for 14 more days and therefore cost him time, money and other resources.

In a dissent joined by Sotomayor, Jackson cautioned that the ruling has "far-reaching implications" beyond Bost's election. She warned the decision will open the floodgates to election-related litigation brought by candidates and invites "late-breaking judicial intervention into the political process."

"By carving out a bespoke rule for candidate-plaintiffs — granting them standing 'to challenge the rules that govern the counting of votes,' simply and solely because they are 'candidate[s] for office' — the court now complicates and destabilizes both our standing law and America's electoral processes," Jackson wrote.

Bost and two presidential-elector nominees filed their original lawsuit in 2022 and alleged that Illinois' law that allowed ballots postmarked by, but received within two weeks of, the election to be counted violated federal law.

A U.S. district court ruled that Bost did not have standing to sue and dismissed the lawsuit. The appeals court upheld that decision, finding in part that the harms to Bost were "speculative."

In arguing that he had the right to sue, Bost said that Illinois' extension of the mail-in ballot deadline harms candidates' chances for election and costs them money because it requires them to extend campaigns and get-out-the-vote efforts, as well as send campaign staff to oversee the counting of late-arriving ballots.

The Supreme Court's majority agreed that candidates have "concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the costs of their campaigns."

"Their interest extends to the integrity of the election — and the democratic process by which they earn or lose the support of the people they seek to represent," Roberts wrote.

The Trump administration backed Bost in the case. Illinois officials had urged the Supreme Court to uphold the lower court's decision. 

Illinois Solicitor General Jane Notz told the court during arguments in October that a ruling finding that candidates always have standing to challenge the rules that govern their elections would lead to "chaos" for election officials and force the federal courts to resolve "abstract policy disputes."