The Patriot Post® · SCOTUS: Yes, Litigate Election Rules Before the Election

Is it better for a candidate to challenge election laws before or after the election takes place? That was, in essence, the question in the case of Bost v. Illinois Board of Elections, on which the U.S. Supreme Court has handed down a decision.

The case was brought by Republican Representative Michael Bost, who filed a lawsuit challenging Illinois’s mail-in ballot law. However, the justices weren’t really ruling on the merits of Bost’s case, but rather on whether a candidate has standing to challenge an election law prior to an election.

The Court, in a 7-2 decision, concluded that Bost does have standing. “Candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless of whether those rules harm their electoral prospects or increase the cost of their campaigns,” Chief Justice John Roberts wrote for the majority. “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.”

The two dissenting justices were Ketanji Brown Jackson and Sonia Sotomayor.

This decision opens up a significant opportunity for candidates to challenge bad election laws, specifically mail-in ballot rules that serve as a breeding ground for fraud.

As Roberts clarified, “Under Article III of the Constitution, plaintiffs must have a ‘personal stake’ in a case to have standing to sue. 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.”

While concurring with the majority decision, Justice Amy Coney Barrett offered a differing opinion on the question of determining standing, in which she was joined by Justice Elana Kagan. “Congressman Bost has standing because he has suffered a traditional pocketbook injury, not because of his status as a candidate,” Barrett wrote. “Rather than take this straightforward path, the Court charts a novel one: To challenge ‘the rules that govern the counting of votes in his election,’ a candidate need only allege that he is in fact a candidate in that election.”

Roberts countered that based upon Barrett’s rationale, “a candidate who pays poll watchers a penny would have standing,” while “one who relies on volunteers would not.”

Again, the Court did not rule on the merits of Bost’s lawsuit; it simply gave him the legal green light to proceed.

Bost welcomed the decision. “This is a critically important step forward in the fight for election integrity and fair elections,” he said. “I look forward to continuing to pursue this case as we navigate the next stages of the legal process. It’s vitally important that we restore the people’s trust in our elections.”

Given this decision, many expect a number of lawsuits to be filed across the country by candidates for federal office challenging their state’s election laws.

This is “the most important Supreme Court election law ruling in a generation,” argued Tom Fitton, president of Judicial Watch, which represented Bost. “Too many courts have denied candidates the standing to challenge unlawful election rules such as the outrageous ballots that arrive after Election Day. American citizens concerned about election integrity should celebrate this Supreme Court victory. I thank Judicial Watch’s legion of supporters and our election law team that helped achieve this historic result.”

Many observers expect this to open the floodgates to legal challenges by candidates across the country, who take umbrage with their state’s election laws. Better that these issues are dealt with prior to an election than after one.