Supreme Court likely to favor GOP rep’s challenge to Illinois mail-in ballot rules in case with major election implications

WASHINGTON — The Supreme Court appeared poised Wednesday to greenlight a slew of challenges to election laws by political candidates — which could lead to massive impacts on the next presidential vote in 2028.

A majority of the high court seemed to side with Rep. Mike Bost (R-Ill.), who petitioned the court to allow his lawsuit challenging an Illinois law allowing mail-in ballots postmarked before Election Day to be counted up to two weeks after polls close to move forward.

Bost’s case had been rejected by the lower courts, including the Chicago-based US Court of Appeals for the 7th Circuit, which determined the lawmaker — who represents a deep-red district in Southern Illinois — lacked standing on the grounds that his lawsuit was speculative and showed no evidence of harm.

“What you’re sketching out for us is a potential disaster,” Chief Justice John Roberts told an attorney for Illinois who questioned whether candidates likely to win could challenge election laws they found unjust..

“In other words, you’re saying, ‘If the candidate is going to win by 65%, no standing,’ but the candidate you know hopes to win by a dozen votes … then he has standing. But we’re not going to know that until we get very close to the election.”

Illinois Solicitor General Jane Notz warned that loosening the standing requirements for candidates could upend election processes.

“It would create chaos for election officials. It is very easy to be a candidate. Any self-declared candidate could challenge any election rule they happen to have a policy disagreement with, even if that rule were entirely harmless,” she contended.

“Election officials who are tasked with actually running elections would have to divert their time and energy and litigate,” she went on. “Federal courts, in turn, would be put in the position of resolving these disputes via advisory opinions, which is exactly what this Court’s standing cases have dictated should not happen.”

Bost, who will be seeking a seventh House term next year, has never won an election by fewer than six percentage points and was re-elected in 2024 with 74.2% of the vote.

At least 17 states, as well as Washington, DC, allow mail-in ballots postmarked by Election Day to be counted for a certain period of time after voting ends, according to the National Conference of State Legislatures.

The justices largely appeared to split along ideological lines during oral arguments, though liberal Justice Elena Kagan suggested that Bost could argue standing on the grounds that the Illinois law “harms somebody relative to what’s come before.

“This is a complaint that sort of seems a little bit created in order to test [the] ‘I don’t have to show injury at all’ theory, but it would be very easy for Congressman Bost to write a complaint that satisfied my rule,” she said.

If the court rules in favor of Bost, it is likely to make it easier for candidates to challenge their state election laws on various grounds.

In the aftermath of the 2020 election, allies of President Trump filed dozens of lawsuits, challenging rules such as the late counting of mail-in ballots postmarked after Election Day. Almost all of those cases were rejected due to a lack of standing.

When candidates try to sue before an election takes place, it is difficult to prove harm because votes haven’t actually been cast.

Conservative Justice Brett Kavanaugh spoke to the issues many judges have with making it easier to challenge voting rules by admitting: “I’m worried about the chaos of post-election litigation and how that would play out in a circumstance like a challenge to this particular ballot counting rule in particular.”

Liberal Justice Sonia Sotomayor argued that “relief should be tailored to the needs” in Bost’s case.

“Your rule would say that [a] candidate who has not just an insubstantial but a statistically almost impossible chance of winning or losing,” she told the congressman’s legal team, “that — that candidate can come in and seek a change of that rule.”

“The absurdity of that.”

Sotomayor’s consevative peers made clear they were equally uncomfortable with judges trying to predict elections to determine standing, with Justice Neil Gorsuch saying there was “something unseemly about federal courts making prognostications about a candidate’s chance of success immediately before an election that itself might influence the election.”

Added Kavanaugh: “A candidate who acts as if there’s no risk of losing often loses.”