The Supreme Court‘s ruling this week that cleared the way for candidates to sue over election laws means election-related lawsuits could soon ramp up nationwide, well before voters head to the polls.
The high court ruled 7-2 on Wednesday that Rep. Mike Bost (R-IL) has standing to sue Illinois over its late-arriving mail ballot law. The majority opinion, written by Chief Justice John Roberts, established that candidates have the right to sue over laws governing vote counting in their elections. Jason Snead, executive director of Honest Elections Project, told the Washington Examiner that several different types of election rules and laws could now be ripe for litigation after Wednesday’s ruling.
“If you’re going to change ballot receipt windows, if you’re going to change ballot application windows, and so on,” Snead said, “there’s actually a lot of rules that could be affected by this in the vote counting context.”
Another case before the Supreme Court, Watson v. Republican National Committee, will examine whether state laws allowing the counting of mail ballots postmarked by but received after Election Day violate federal law. Although the Supreme Court’s ruling this week stems from a challenge to a similar Illinois law, the high court did not rule on the merits of the mail-in ballot issue in its opinion.
The Bost ruling also opens the door to challenges to vote-counting rules before votes are actually cast, meaning courts will have time to hear the cases ahead of elections rather than while votes are being tallied.
“That’s essentially the upside here, is that candidates will be able to bring these lawsuits much further ahead of an election than they otherwise would have been able to, if the lower court’s ruling in this case had been able to stand,” Snead said.
During oral arguments in October, Roberts expressed concern for limiting lawsuits over vote-counting rules to the final days of or after elections, and he reiterated that concern in his opinion released Wednesday.
“Such late-breaking, court-ordered rule changes can ‘result in voter confusion and consequent incentive to remain away from the polls,’ and thus undermine the ‘[c]onfidence in the integrity of our electoral processes … essential to the functioning of our participatory democracy,’” Roberts wrote in the ruling.
“The democratic consequences can be even more dire if courts intervene only after votes have been counted,” he added.
Snead said the ruling will likely benefit right-leaning candidates and groups who want to file lawsuits over changes to vote-counting procedures, now that they have clear legal standing to do so. He said left-leaning groups have been able to secure hearings on their own election law challenges, while right-leaning groups are typically “boxed out” from challenging election rules.
“I think this opinion means, at bottom, that there is now going to be equal opportunities for conservative candidates to challenge state action that is trying to undermine the integrity of the elections, as liberal candidates trying to sue, as they always do, to get rid of those election integrity laws,” Snead said.
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Lawsuits by major left-leaning groups, such as the Elias Law Group, have challenged and, in some instances, successfully struck down various election integrity reforms in recent elections. With the Bost ruling, lawsuits targeting ballot harvesting laws, voting deadlines, and mail voting procedures could be filed nationwide.
The Supreme Court has not scheduled arguments in its next election law case, Watson v. Republican National Committee, but is expected to hear arguments for it sometime between March and April, with a decision expected by the end of June.