Chief Justice John Roberts expressed concern during oral arguments on Wednesday that Illinois wants the high court to limit candidates’ ability to sue over election laws to the “most fraught” time of the campaign, questioning the state’s argument that candidates must wait for evidence that a state law has harmed or will harm their election before filing a lawsuit.
Oral arguments before the Supreme Court in Bost v. Illinois State Board of Elections grappled with when a political candidate has shown harm by a law sufficient to file a lawsuit. Justices expressed concerns over both sides’ arguments, ranging from the prospect that candidates with no chance of winning will be able to sue over any election law, to the concern of courts’ need to determine whether a candidate has a chance of winning before assessing whether they have standing.
Roberts questioned the state’s assertion that a candidate must show harm from an election law that affected the results of his or her race’s outcome, rather than Rep. Mike Bost (R-IL)’s assertion that candidates, as objects of the election law, have standing to sue over the laws.
“You’re saying, if the candidate’s going to win by 65%, no standing. But, if the candidate, you know, hopes to win by a dozen votes — and there are places in the country where that happens over and over again — then he has standing. But we’re not going to know that until we get very close to the election, right?” Roberts questioned Illinois Solicitor General Jane Notz.
“So it’s going to be in the middle, the most fraught time for the court to get involved in electoral politics. That’s when you say we should jump in?” Roberts asked.
Notz pushed back at the question by the chief justice, arguing that the high court could look at polling data or “the expertise of a political advisor” to evaluate the state of the race. Justice Brett Kavanaugh questioned the reliability of polling data or a campaign advisor to accurately predict how close or uncompetitive a race may be.
“I don’t understand a standing rule that therefore depends on prognostication,” Kavanaugh said.
Justice Neil Gorsuch also grilled Notz on whether it would be “unseemly” for courts to make predictions about a candidate’s chances about winning an election, which “itself might influence the election.”
While Illinois’s theory of a candidate’s ability to show standing was questioned by many of the conservative justices, Bost’s claims that a candidate has standing when the law will affect the final tally of the election, but may not affect the outcome of the race, faced scrutiny by Justices Sonia Sotomayor and Ketanji Brown Jackson.
“Harm is what you need in order to establish standing, not preference for 60% or 59% or whatever,” Jackson said, questioning Bost’s lawyer, Paul Clement.
“And so what I guess I’m a little concerned about in your argument is the idea that a candidate who wins, and who wins by some margin, is harmed by a regulation of this nature because of the potential decrease in his margin of victory. I don’t understand the harm that necessarily comes from that,” she added.
Clement pushed for the high court to recognize a broad rule for standing, arguing it would eliminate the need for a court to determine a complex formula to see a candidate’s chances in an election before the race has been held.
“I think that is a pretty good advertisement for a broader, simpler rule that simply says candidates have standing to challenge the rules that govern the election,” Clement told the justices.
The Supreme Court is expected to release its ruling in Bost v. Illinois State Board of Elections before the end of June 2026.
While the Supreme Court heard arguments only on whether Bost has standing to challenge an Illinois mail ballot law, the justices could eventually hear the merits of the case or a similar case in the near future. The lawsuit, originally filed in 2022, argues that Illinois’s law allowing ballots postmarked by Election Day to be collected and counted up to 14 days after Election Day violates the Constitution.
SUPREME COURT TO DECIDE IF GOP CANDIDATE CAN SUE OVER ILLINOIS MAIL-IN BALLOT LAW
The justices are considering a petition to hear the merits of a similar dispute over a Louisiana law. The Louisiana law allows mail-in ballots to be counted if they are received up to five business days after Election Day and have been postmarked by Election Day.
The petition in Watson v. Republican National Committee asks the Supreme Court to consider striking down laws allowing ballots received after Election Day to be counted. The justices are expected to rule on whether they will take up the petition for arguments as soon as in the coming weeks.