GOP-Backed SCOTUS Case Could Open Floodgates for More Post-Election Chaos 

The U.S. Supreme Court will hear oral arguments Wednesday in a GOP-backed case that could lead to a dramatic increase in lawsuits challenging state election laws.

Leading anti-voting groups are urging the court to make it easier for candidates, and even other officials, to bring such challenges. That could let them deluge the courts in election litigation, creating the kind of chaos over counting and certifying results that the GOP has worked to exploit in recent contests.

Illinois, the defendant in the case, warns that a ruling like that could allow candidates to challenge voting rules for “purely ideological reasons” and air “generalized grievances about election law.”

Rep. Michael Bost (R-Ill.) filed a federal lawsuit in May 2022 challenging a state law that allows votes by mail to be counted for 14 days after the polls closed, provided they were mailed by Election Day. Bost alleged counting late-arriving postal votes violates the Constitution, which provides that Congress sets Election Day, and this somehow harmed him. 

The district court dismissed the complaint the following year for lack of standing, saying Bost had not shown that the statute had, in fact, injured him. That decision was upheld on appeal. 

Bost appealed to the Supreme Court, which granted certiorari over the summer. But the court said it would consider only the issue of standing, not the underlying question of late-arriving mail ballots, which it could soon take up in a separate case challenging Mississippi’s mail voting law.

In his petition, Bost urges the court to adopt a new rule that would give candidates per-se standing to challenge election laws, or — barring that — at least grant him standing in this case.

Among those urging the court to rule for Bost are the U.S. Department of Justice, which has undergone a sharp anti-voting shift under President Donald Trump, as well as Cleta Mitchell, a leading anti-voting activist and close Trump ally, and the Public Interest Legal Foundation (PILF), which works to tighten voting rules. PILF founder Christian Adams has sought to cast doubt on the 2020 results, calling the vote “full of chaos and irregularities.”

“This case presents an opportunity for a badly needed course correction, and [I am] very hopeful the Supreme Court will accept the case and resolve the issue favorably in support of candidate standing to bring election cases to a court — be they Democrats, Republicans, or unaffiliated,” Mitchell said last year.

Mitchell played a key role in the effort to use the courts and other means to create chaos and confusion in the post-election period in 2020 and early 2021, which led to the January 6, 2021 attack on the Capitol. She joined Trump on the phone call where he pressured Georgia’s top election official to “find” enough votes for him to win the state. 

Other right-wing election deniers have similarly worked to create post-election flashpoints over counting and certification in states including Michigan, Pennsylvania, and New Mexico.

PILF has gone even further, filing an amicus brief backing Bost’s broader argument and expanding it, arguing that not only candidates but all “individuals with election-related positions,” — including election officials — should have standing to challenge election laws.

If the court adopted that very broad interpretation, it could give standing to thousands of local administrators, inviting a torrent of legal challenges to how states run elections and count ballots. 

Complicating the picture, pro-voting groups like the League of Women Voters (LWV) and the ACLU have filed a brief making more limited arguments in support of Bost. They want to make it easier to challenge restrictive voting laws. 

A ruling for Bost could open up either the litigation flood gates or merely a lawsuit fire hydrant, depending on the specifics of the opinion. 

In oral arguments Wednesday, court observers will listen carefully for hints about how far the conservative majority may be willing to go.

In his briefs, Bost argues first that candidates should, as a general rule, have standing to challenge laws governing elections, “even when those laws do not operate directly on the candidate, but purport to regulate when and where the election will be held and when and how the votes will be counted.”

“Laws that disadvantage candidates competitively and distort the accuracy of results impose an obvious and distinct injury-in-fact on candidates,” Bost argues. 

Bost also makes two narrower, backup arguments for why, at the very minimum, he has standing to challenge Illinois’ law here.

First, he claims that counting ballots after Election Day somehow hurts his electoral chances. Bost won in 2022 with a whopping 75 percent of the vote, but he argues that a smaller margin of victory would hurt his fundraising efforts in future contests and invite future challengers.

Still as the Democratic Party of Illinois* notes in its friend-of-the-court, it’s unclear whether the rule allowing late-arriving ballots actually hurt Bost — it might have even helped him. Bost’s original complaint “says nothing at all about the Receipt Deadline’s anticipated effects on Bost’s chances of re-election” the brief notes. “Bost did not allege, for example, that a majority of mail voters in his district support his opponents rather than him, much less that a majority of ballots arriving after election day in his district have historically contained votes for his opponents.”

Bost also claims that the extra expense of employing election observers for two weeks after Election Day, which he needed to do because of the law counting late-arriving ballots, hurts his campaign enough to provide standing. 

The lower courts rejected that argument, agreeing with the state board of elections that those costs were “self-inflicted.” 

If the Supreme Court accepted that claim, it could allow almost any candidate who decides to spend money in response to election laws to challenge those statutes. For example, a state’s decision to increase the number of vote-counting centers to ensure a speedy certification of the results could be challenged because it would similarly “force” a campaign to spend more money on poll watchers. Likewise, if Pennsylvania’s legislature decided to allow mail-in ballot counting ahead of Election Day so it could quickly report definitive results that night, a candidate could have standing to sue. 

This would invite courthouse chaos, the Illinois State Board of Election contends in its brief. 

“[R]ather than encouraging fair and efficient elections, petitioners’ rule would promote a litigation free-for-all in which any candidate could sue over any election rule applicable to her race,” the board argues, adding that long-shot candidates could inundate courts with no-shot cases.

“Under petitioners’ proposal, these candidates would be free to bring lawsuits to challenge any election rule on the books for purely ideological reasons—turning federal courts into fora for airing ‘generalized grievances’ about election law,” the board writes. 

*The Democratic Party of Illinois is represented by the Elias Law Group (ELG). ELG firm chair Marc Elias is the founder of Democracy Docket.