The U.S. Supreme Court heard arguments Wednesday in a case that could decide whether political candidates have the right to challenge Illinois’ vote-by-mail law in court.
U.S. Rep. Mike Bost, a Republican from Murphysboro, and a pair of Illinois primary delegates for President Donald Trump sued the Illinois State Board of Elections in 2022, argue that the state’s law allowing late-arriving mail-in ballots to be counted up to 14 days after the polls close violates the federal law establishing an “Election Day.” Both a lower federal trial court and federal appeals court have ruled Bost lacked standing to sue.
Republicans at both the state and national level embraced mail-in voting in the 2024 election cycle after pushing back against it in recent years. The Illinois Republican Party joined the Republican National Committee’s “bank your vote” initiative, which encouraged reliable Republican voters to vote early or by mail so campaigns could focus resources on turning out people who were undecided.
The Supreme Court’s ruling will focus on whether Bost, in his role as a political candidate, has legal grounds to sue over the state’s election law. It will not decide whether Illinois’ mail-in voting law is constitutional. However, a favorable ruling for Bost by the nation’s high court would allow his challenge to proceed at a lower level, opening the door for courts to rule on counting mail-in votes after an election.
Read more: U.S. Supreme Court agrees to hear Illinois congressman’s appeal of mail-in voting
Justices on the conservative-leaning court hinted Wednesday they could favor Bost. Illinois Solicitor General Jane Notz, defending the case for the State Board of Elections, faced challenging questions from the justices. At one point, Justice Brett Kavanaugh warned Notz that she was giving an argument contrary to a written argument filed with the court.
A candidate’s right to sue
Bost argues he has a right to sue because he suffers financial injury by paying campaign staff for two weeks beyond the election to monitor ballot counting. He also argued that his vote total might be diluted if more votes are counted after election night.
As a candidate for office, Bost is directly impacted by election laws, Bost’s attorney Paul Clement argued.
“Everybody would like the elections to be conducted lawfully and in compliance with federal law, including the voters, but the injury is visited more specifically on the candidate,” Clement said.
A candidate’s margin of victory also shouldn’t matter, Clement said, arguing that even a candidate who is likely to receive 2% of the vote in a race should still be allowed to challenge election laws that could harm their campaign.
Justice Sonia Sotomayor, one of the three liberals on the court, was skeptical.
“Generally, we have said that suits should be brought by people for whom the harm is concrete in some meaningful way,” she said, pointing to candidates who might lose by a thin margin.
But Justice Neil Gorsuch said whether or not a candidate can challenge election laws shouldn't be based on their likelihood of success, because some candidates enter a race with no chance to win.
Winning elections has not been a problem for Bost. He has represented the 12th Congressional District in southern Illinois since 2015 and was reelected in 2024 with nearly 75% of the vote.
The court also granted a Trump administration attorney’s request to argue in favor of Bost on Wednesday.
State Board defends mail-in voting law
Notz, the attorney representing the Illinois elections board, said Bost’s desire to receive more votes does not give him grounds to sue. She also pointed to Bost’s attorneys acknowledging in lower courts that Bost was not likely to lose an election, even if he believes the rules diminish how many votes he receives.
Notz said the law is designed to regulate voters, not candidates. She also argued the court has never established a set metric for how close a candidate’s race must be for them to challenge an election law and shouldn’t use Bost’s case to set such a precedent.
Justice Ketanji Brown Jackson, another of the court’s liberals, warned that applying a margin of victory or defeat test to whether a candidate can sue might open the door to even more lawsuits challenging election laws.
“People who’ve lost the election but they want their margin of defeat to be different, or they think it might have been, and so now we have litigation over the counting as a result of that,” Jackson said.
Notz responded that other parts of the law, such as whether a candidate gets on the ballot or faces other limits on fundraising, would be a better way to decide if a candidate has standing to sue over an election law.
Notz argued that one reason Bost shouldn’t have standing is because he is an experienced candidate and has “personal knowledge” of how the law works and which direction late-arriving ballots trend. That claim bothered some justices.
“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?” Justice Samuel Alito asked.
Justice Elena Kagan said she doesn’t want candidates to have to produce polls or prior election results to demonstrate their viability.
Notz contended that giving Bost or other candidates standing would harm election authorities.
“Any self-declared candidate could challenge any election rule that they happen to have a policy disagreement with, even if that rule were entirely harmless,” Notz said. “And election officials who are tasked with actually running elections would have to divert their time and energy and litigate, you know, these policy-based disputes.”
The court will likely issue a ruling on the case by June.
Capitol News Illinois is a nonprofit, nonpartisan news service that distributes state government coverage to hundreds of news outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.
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