SCOTUSblog By Evan Leeby 10/9/2025
At Wednesday’s argument in Bost v. Illinois Board of Elections, not many of the justices worked hard to hide their cards. It appears there is a substantial majority, perhaps as many as seven justices, leaning toward reversing the lower federal courts’ holding that Rep. Michael Bost, a Republican member of Congress, lacked a legal right to sue, known as standing, to challenge an Illinois law allowing mail-in ballots postmarked by Election Day to be counted even if they arrive as many as 14 days later. Perhaps the bigger mystery is what precise test for “standing” the court will adopt for election-law cases.
In federal court, plaintiffs only have standing to sue if they properly allege that the challenged action or law causes them “concrete and particularized injury in fact.” Plaintiffs are not allowed to challenge laws in federal court on the ground that they are citizens or even taxpayers. They must allege some more specific personal harm that raises the claim to something beyond a mere “generalized grievance.”
Former U.S. Solicitor General Paul Clement, arguing for Bost, opened by boldly proposing a rule that would recognize standing for any candidate to challenge any material change in the way an election will be conducted, especially how and when votes are to be counted.
Justice Elena Kagan resisted Clement’s proposal of what might be called “candidate standing.” “It’s not enough to just walk in and say: Hi, I’m a candidate, and I’m suing,” said Kagan. “[Y]ou have to show … some kind of substantial risk … that the new rule puts you at an electoral disadvantage relative to the old rule.”
Kagan went on to reveal more of her thinking. “On the other hand, I’m sort of in sympathy with the view that this bar should not be all that high,” she said. “[Y]ou shouldn’t have to say: Here are the polls that show I could lose as a result of this rule.”
More:
https://www.scotusblog.com/2025/10/justices-seem-willing-to-allow-candidate-to-challenge-elections-law-on-mail-in-ballots/
