The Supreme Court Takes Up Candidate Standing in Bost v. Illinois
By Marshal Trigg, Junior Counsel, USGI
On Wednesday, the Supreme Court heard oral argument in Bost v. Illinois, a case brought by Judicial Watch, challenging an Illinois law permitting the return of absentee ballots up to two weeks after Election Day. The case’s merits were not before the Court, however, but rather the threshold question of whether the plaintiff candidate, Congressman Bost, has legal standing to bring this suit in the first place.
Bost contends that election rules directly affect candidates as the “objects” of regulation and that counting unlawful ballots in his race constitutes its own legal injury. He also argues the law imposes unique burdens on his candidacy in at least two ways. One is a classic “pocketbook” injury. Every day that Illinois counts ballots is another day Bost must pay for poll watchers and ballot monitoring. Per Justice Kavanaugh, not doing this would constitute “political malpractice.” Justice Jackson disagreed, saying the decision to expend additional funds would constitute a “self-inflicted harm.”
The other harm is competitive. In the zero-sum context of elections, a ballot counting rule change will help one candidate and harm the other. In a close race, this may be outcome determinative. But Bost’s counsel Paul Clement argued that, irrespective of outcome, the margin of victory or defeat can constitute an injury, for example, by causing reputational damage and diminished political capital and fundraising.
How do we know pre-election which candidate the unlawful rule harms, and which it helps? Justice Thomas opened with this plain question, and this theme of factual uncertainty echoed throughout the nearly two-hour argument. Repeatedly, and in several different ways, the justices probed a similar question: what kind of risk suffices under this competitive harm theory, and how should it be determined?
Both parties appeared to concede an unavoidable imprecision, at least in this latter respect. While noting that “this Court has never attached a metric to substantial harm,” Illinois argued that Bost’s lengthy and successful track record of winning re-election makes it unlikely the ballot delivery deadline meaningfully jeopardizes his future campaigns. Bost countered that courts should not be turned into “political prognosticators” determining standing based on each individual candidate’s odds. Justice Jackson questioned whether this theory of harm was too speculative to satisfy Article III standing. Naturally, there is more clarity after the fact; however, Justice Kavanaugh repeatedly underlined the destabilizing effects of post-election challenges, citing Bush v. Gore: “Count first and rule upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires.”
The argument revealed no clear consensus, but the stakes are high. A Bost win will uniformly lower the bar for candidates to challenge election rules, likely generating a trend of candidate-initiated litigation. A Bost loss could prolong them until post-election or leave unlawful election rules largely invulnerable to challenge.
Notably, even though they disagreed with him on the merits, progressive organizations League of Women Voters and ACLU urged the Court to rule Bost has standing, reflecting broader institutional interests in preserving access to federal courts across the ideological spectrum. Grant’s sister organization, Restoring Integrity and Trust in Elections, has filed three amicus briefs in support of Bost since 2023.
Several states are revisiting their congressional maps ahead of the 2026 elections, marking a rise in mid-decade redistricting effort. In Utah, lawmakers recently approved a new map after the state Supreme Court struck down the previous one, while Missouri’s Governor signed into law a newly drawn congressional map. States like Maryland, South Carolina, Florida, Texas, California (through ballot initiative), Kansas, and Indiana are exploring similar mid-cycle changes. Others like New Hampshire have indicated they will not.
The courts are already heavily involved with pending challenges to California’s ballot initiative and new maps in Texas and Missouri. Some state constitutions restrict redistricting to once a decade, others leave room for legislative action or are ambiguous.
One thing is for certain: this is a contentious issue and litigation challenging these midcycle maps will explore interesting questions regarding limits on legislatures’ redistricting authority.
Arkansas
- Attorney General Tim Griffin announced the arrest and charging of three women with felonies for illegally voting in the 2024 elections despite lacking U.S. citizenship. The investigation, conducted in partnership with DHS and state election officials, revealed that two of the individuals have been charged with perjury and all three with violating the state’s election laws.
California
- In advance of the November 4 election in Los Angeles County, a voter received not only his own ballot but also one addressed to a woman who died in 1994.
- Orange County’s Registrar of Voters has responded with a voter roll cleanup process ahead of the 2025 statewide special election, including a review to identify non-human or potentially fictitious registrations. The effort involves comparing voter rolls to death data, verifying addresses with 10 or more registrants, and even cross-checking animal license databases to flag registrations that may share names or addresses with pets. About 2,600 registrants who haven’t provided proof of ID or residency will also be required to verify eligibility before voting in a federal election. This response follows an incident where a woman was charged with registering her dog to vote and then casting ballots for the dog in two elections.
Florida
- Secretary of State Cord Byrd presented to the state House Government Operations Subcommittee, saying Florida’s system is open and transparent, while also floating precertification audits and laws to verify citizenship as potential legislative proposals for 2026.
Kentucky
- Governing Magazine has named Secretary of State Mike Adams as its Public Official of the Year.
Maine
- A woman received an Amazon box containing 250 official state election ballots, raising alarm about chain-of-custody potential shortcomings on the eve of an election where voters will determine whether to adopt voter ID requirements. The recipient turned them into local officials, and state Republicans are now calling for a federal investigation.
- New campaign filings show groups opposing Question 1, a voter ID ballot initiative, have raised and spent three times more than advocates.
Maryland
- Ian Andre Roberts, an illegal alien, was arrested in Iowa while serving as a school superintendent and was also found to be registered as a voter in Maryland, by likely checking the required citizenship box on the registration form. This led to a state watchdog group to call for a closer review of Maryland’s voter rolls.
- House Speaker Adrienne Jones is encouraging the legislature to take up redistricting following remarks from Governor Wes Moore saying that “now is the time” to look at redistricting.
Pennsylvania
- The U.S. Election Assistance Commission has evaluated Delaware County’s testing procedures for election equipment and highlighted its thoroughness, while noting that it is the only county in the state performing this test.
- Election officials have detected about 68 instances of duplicate mail-ballot labels generated under the state’s SURE system, affecting several counties across the state. In response, election officials emphasized the state’s barcode system which aims to prevent multiple ballots from being accepted for the same voter.
Texas
- A July software update to the Texas Election Administration Management (TEAM) system has caused major backlogs in several counties, leaving thousands of registration applications unprocessed. One county reports having to bring in extra staff and weekend work hours to catch up before elections, and before the Texas voter registration deadline of October 6.
Utah
- In response to a court order striking down the 2021 map, the legislature has approved a congressional redraw. The map still awaits the judge’s review before going into effect for the midterm election.
Virginia
- A recent data outage in the Daily Absentee List (DAL) disrupted access to voter reporting systems. Election officials were able to restore functionality by Monday, September 29 while the outage occurred on the prior Thursday, September 25. The outage highlighted vulnerabilities in backup systems and communication protocols in order to keep groups that rely on the data informed.
Wisconsin
- Lawmakers have introduced legislation that would ban absentee ballot drop boxes entirely, reversing their authorization by the state’s Supreme Court last year. Drop boxes were banned in 2022, prior to the Supreme Court ruling which overruled that legislation.
Alabama
Alabama State Conference of the NAACP v. Allen, No. 2:21-cv-1531 (N.D. Ala.)
A federal court denied Secretary of State Wes Allen’s motion to stay remedial proceedings in this redistricting case involving the State Senate maps pending the outcome of Louisiana v. Callais in the U.S. Supreme Court. The court additionally appointed a special master to redraw the districts, following Governor Kay Ivey’s announcement on September 26 that she would not call a special session for the legislature to redraw the maps.
District of Columbia
League of Women Voters v. U.S. Department of Homeland Security, No. 1:25-cv-03501 (D.D.C.)
A class action lawsuit filed on September 30 challenges the federal government’s collection and aggregation of voter roll data, alleging violations of federal privacy laws and the U.S. Constitution. The suit is aimed at stopping citizenship checks conducted through DHS’s SAVE system.
Illinois
Bost v. Illinois State Board of Elections, No. 1:22-cv-02754 (N.D. Ill.)
The U.S. Supreme Court held oral argument on October 8 to determine whether a candidate has standing to challenge a statute permitting ballots to be counted up to two weeks after Election Day.
Michigan
Public Interest Legal Foundation v. Benson, No. 1:21-cv-00929 (W.D. Mich.)
On October 7, the Public Interest Legal Foundation (PILF) filed a petition for review with the U.S. Supreme Court to determine whether Michigan violated the National Voter Registration Act (NVRA) by failing to make a “reasonable effort” to maintain accurate voter rolls and on standing issues, specifically whether PILF suffered an informational injury when being denied records under the NVRA.
United States v. Benson, No 1:25-cv-01148 (W.D. Mich.)
On October 2, a federal court ruled that the DOJ’s lawsuit against Michigan and Secretary of State Jocelyn Benson could proceed notwithstanding the government shutdown. This is one of several cases brought by the DOJ recently seeking voter roll data from state governments.
New Mexico
Voter Reference Foundation v. Balderas, No. 1:22-cv-00222 (D.N.M.)
On September 22, a federal district court awarded over $800,000 in legal fees to the Voter Reference Foundation after finding that the state violated the NVRA by failing to provide a copy of the state’s voter list.
North Carolina
Pierce v. North Carolina State Board of Elections, No. 4:23-cv-193 (E.D.N.C.)
On September 30, a federal court held that two voter plaintiffs lacked standing and failed to prove racial gerrymandering.
North Dakota
Turtle Mountain Band of Chippewa Indians v. Howe, No. 3:22-cv-22 (D.N.D.)
On October 6, 22 states and the District of Columbia filed a joint amicus brief in the U.S. Supreme Court urging the Supreme Court to grant certiorari and reverse an Eighth Circuit Court of Appeals ruling that Section 2 of the Voting Rights Act is not enforceable by private plaintiffs.
Pennsylvania
Center for Coalfield Justice v. Washington County Board of Elections, No. 24-3953 (Pa. Ct. Com. Pl. Wash. Cnty.)
On October 11, the Pennsylvania Supreme Court ruled 4 to 3 that voters must be notified whether their absentee ballots will be rejected due to voter error.
Keefer v. Biden, No. 1:24-cv-00147 (M.D. Pa.)
On October 6, the U.S. Supreme Court denied a petition to review whether individual state legislators had standing to challenge an executive order by the President of the United States or the Governor of Pennsylvania’s implementation of “automatic voter registration.”
Public Interest Legal Foundation v. Schmidt, No. 1:19-cv-622 (M.D. Pa.)
On September 26, the Public Interest Legal Foundation filed a petition for review with the U.S. Supreme Court to determine whether the organization has standing to request public records under the NVRA, a similar issue PILF has appealed in its Michigan litigation.
Rossman v. Schmidt, No. 516 MD 2024 (Pa. Comm. Ct.)
On October 7, the Commonwealth Court held oral argument in a case sponsored by Restoring Integrity and Trust in Elections that challenges a state directive ordering counties to approve voter registration applications even when identifying information supplied by the applicant does not match with official government databases. The Federalist reported on RITE’s case yesterday.
Wisconsin
Cerny v. Wisconsin Elections Commission, No. 24-cv-1353 (Wis. Cir. Ct. Waukesha Cnty.)
On October 3, a state trial court ordered the Wisconsin Elections Commission to confirm U.S. citizenship of all voter registration applicants and to audit voter rolls for non-citizens. On October 6, the Wisconsin Department of Justice asked the court to stay the decision pending a statewide election in February which the court granted in part. A hearing on the stay request is scheduled for October 31.
- Sponsors of the proposed Proving Residency for Overseas Voter Eligibility (PROVE) Actwould add that overseas registrants (or their spouse/parent/guardian) would have to maintain a “current residence” in the state where they are registered, or else default to registering in Washington, D.C. to vote only in federal elections. Following the 2024 election, the Republican National Committee challenged the legitimacy of these votes in states such as Michigan and North Carolina. They are following those with similar litigation in Arizona. NPR characterized this as part of a broader GOP effort to restrict overseas voting.
- Dominion Voting Systems was acquired by Scott Leiendecker, the former Republican director of the St. Louis City Board of Elections. The election vendor was used across 27 states in the past election, and is being rebranded to Liberty Vote.
- The American Bar Association has released the final report of its bipartisan Task Force for American Democracy, outlining a comprehensive set of proposals to shore up trust in elections and the rule of law. Among its 12 core areas for reform: depoliticizing election administration, mandating hand-marked paper ballots and robust audits, expanding voting access (including same-day and automatic registration), curbing frivolous election litigation, and promoting civics education.
- The Center for Election Innovation & Research’s 2024 survey of Voter Registration Database Security Report finds that many states have broadly embraced key protections like backups, audits, network monitoring, and multi-factor authentication. It also highlights areas of concern of reliance upon federal funding.
- In a Daily Wire column, Jason Snead, executive director of the Honest Elections Project, discusses the recent case of an illegal alien who was registered to vote in Maryland for years which underscores the urgent need for tighter safeguards in voter registration, something that the SAVE Act would help strengthen through requiring proof of citizenship.
- In a RealClearPolitics op-ed, Andy Jackson discusses bipartisan limits on redistricting mid-decade, looking at both parties to commit to fairness rather than escalating map wars. The authors suggest mechanisms like banning partisan data, minimizing splitting communities, and drawing maps openly on computers.
- In a recent op-ed, Chad Ennis argues that the Supreme Court has an opportunity in the upcoming Bost v. Illinois case to reaffirm that candidates, not just parties, can challenge election laws. He contends recent court decisions denying standing have shielded questionable election laws from review, and that restoring fair access through allowing the right to both candidates and parties to challenge laws affecting them would strengthen accountability.
- Former State Elections Director Karen Brinson Bell and former Emergency Management Director Mike Sprayberry co-authored an op-ed stressing the need for stronger election-disaster planning after Hurricane Helene’s destruction. They look at legal flexibility in responding, cross-agency coordination, and dedicated funding to ensure elections continue “come rain or come shine.” The piece highlights how local officials adapted polling sites and absentee procedures during the storm; lessons they say should shape future emergency response.
- The Supreme Court will hear oral argument in Louisiana v. Callais on racial gerrymandering claims under Section 2 of the Voting Rights Act on October 15, 2025.
- The Supreme Court has distributed the State of Mississippi’s certiorari petition in Watson v. Republican National Committee for consideration at its October 17, 2025 conference. Mississippi seeks review of a Fifth Circuit Court of Appeals decision that held Mississippi’s post-election ballot delivery deadline violates the federal election-day statutes.