Episode 7
Oral Argument Preview | Bost v. Illinois | Ballot Box Bout: When Can Candidates Challenge Election Rules?
Bost v. Illinois State Bd. of Elections | Case No. 24-568 | Oral Argument Date: 10/8/25 | Docket Link: Here
Overview
This episode examines Bost v. Illinois, a Supreme Court case that could reshape how candidates challenge election laws in federal court. Congressman Michael Bost and two Republican presidential elector nominees are challenging Illinois's law allowing mail-in ballots to be counted up to 14 days after Election Day, creating a fundamental test of Article III standing doctrine in the election law context. The case sits at the intersection of constitutional standing requirements and the unique competitive dynamics of electoral politics, with implications for whether candidates should receive special treatment to challenge election rules or must meet the same concrete injury standards as all other plaintiffs.
Episode Roadmap
Opening: A Fundamental Question About Federal Courts
• October 8, 2025 oral argument date
• Standing doctrine meets election law in crucial constitutional test
• Circuit split on candidate challenges to election rules
• Implications for flood of pre-election litigation vs. orderly dispute resolution
Background: Illinois's Ballot-Receipt Extension
• 2005 Illinois law change allowing 14-day post-Election Day counting window
• Historical roots in Civil War soldier voting accommodations
• About half of states now allow similar extended receipt deadlines
• Congressman Michael Bost and two Republican presidential elector nominees challenge law
Constitutional Framework: Article III's Case-or-Controversy Requirement
• "Judicial Power shall extend to all Cases, in Law and Equity"
• Standing doctrine requires concrete, particularized, traceable injury
• Tension between candidate investment in election rules and generalized grievances
• Elections Clause and Electors Clause federal framework
Procedural Journey Through the Courts
• May 2022: Pre-enforcement challenge filed
• July 2023: District court dismisses for lack of standing
• Seventh Circuit affirmed in split decision with Judge Scudder's influential partial dissent
• Supreme Court grants certiorari to resolve candidate standing question
The Three-Way Legal Battle
• Petitioners' blanket candidate standing rule vs. concrete injury requirements
• Electoral harm theory: competitive disadvantage vs. speculative injury
• Pocketbook injury claims: campaign extension costs vs. manufactured standing
Clapper Doctrine and Mitigation Expenditures
• When spending money to avoid harm creates standing vs. speculative preparation
• Illinois's challenge to factual basis of extended campaign operations
• "Near certainty" of ballot counting vs. substantial risk standard
Oral Argument Preview: Key Tensions to Watch
• Justices' reaction to special candidate standing exception
• Factual record problems and thin allegations
• Floodgates concerns vs. orderly pre-election resolution
• Purcell principle timing considerations
Broader Constitutional Stakes
• Article III's role in limiting federal court jurisdiction
• Election law's unique challenges for traditional standing doctrine
• Federalism questions about state election rule authority
• Volume and intensity of modern election litigation trends
Referenced Cases
Clapper v. Amnesty International | 568 U.S. 398 (2013)
- Question Presented: Whether respondents have Article III standing to challenge FISA Amendments Act surveillance provisions
- Arguments: Established restrictive doctrine that plaintiffs cannot manufacture standing by spending money to mitigate speculative future harm; requires substantial risk of concrete injury that mitigation expenditures are designed to avoid; Illinois relies heavily on this precedent to challenge Bost's campaign extension costs as insufficient for standing.
Davis v. Federal Election Commission | 554 U.S. 724 (2008)
- Question Presented: Whether provisions of McCain-Feingold Act that impose different contribution limits on candidates facing self-funded opponents violate Equal Protection and First Amendment
- Arguments: Supreme Court recognized candidate standing based on competitive electoral harm and fundraising disadvantages in "competitive context of electoral politics"; petitioners rely on this precedent to support their electoral prospects injury theory; demonstrates Court's acceptance that campaign competition can create cognizable Article III injury.
Susan B. Anthony List v. Driehaus | 573 U.S. 149 (2014)
- Question Presented: Whether plaintiffs have Article III standing to bring pre-enforcement constitutional challenge to Ohio election law prohibiting false campaign statements
- Arguments: Established framework for pre-enforcement challenges in election context using "substantial risk" standard for future harm; relevant to petitioners' argument that they face substantial risk of electoral and financial harm from Illinois's ballot-receipt deadline; provides precedential support for challenging election rules before they take effect in specific election.
Transcript
Welcome back to SCOTUS oral arguments and opinions.
Speaker B:Today we'll cover Bost vs. Illinois State Board of Elections, a case that could fundamentally reshape how candidates challenge election laws in federal court.
Speaker B:This case sits right at the intersection of two major areas of Article 3 standing doctrine and election law.
Speaker B:We're talking about whether political candidates have a special right to challenge the rules governing their elections or whether they have to meet the same standing requirements as everyone else.
Speaker B:Bost is the first of three election campaign related cases, the other two being Louisiana versus Calais and National Republican Senatorial Committee versus Federal Elections Committee.
Speaker B: ,: Speaker A:What makes this particularly fascinating is that we have Congressman Michael Bost and two Republican Presidential elector nominees and challenging Illinois's law that allows mail in ballots to be counted up to 14 days after election Day, as long as they're postmarked by Election Day.
Speaker B:So let's break down what's at stake here.
Speaker B:At its core, this case asks when can candidates challenge election rules in federal court?
Speaker B:Petitioners argue that candidates should have broad standing to challenge any rule governing their elections.
Speaker B:Illinois says not so fast.
Speaker B:You still need to show concrete particularized harm just like any other plaintiff.
Speaker B:And that tension has huge implications.
Speaker B:If the court sides with the petitioners, it could open the floodgates to candidate challenges of virtually any election rule.
Speaker B:If it sides with Illinois, candidates might find it much harder to get their day in court on election law disputes.
Speaker A:I'm looking forward to discussing the nitty gritty of this case, but before going any further, we want to highlight that the Supreme Court granted certiorari in Trump vs Slaughter, a case involving Trump administration for firings a member of the Federal Trade Commission without cause.
Speaker A:The question in this case boils down to whether the President can remove a Federal Trade Commissioner without cause when a federal statute permits their removal only for inefficiency, neglect of duty or malfeasance in office.
Speaker A:The Supreme Court specifically asked the parties to brief whether a prior court case, Humphrey's executor states, should be overruled and whether federal courts may even stop a person's removal from office.
Speaker A: ,: Speaker A:The removal message did not allege that Commissioner Slaughter had engaged in any inefficiency and neglect of duty or malfeasance in office as required by the FTC Act.
Speaker A:Commissioner Slaughter was denied access to her office.
Speaker A:Her staff was placed on administrative leave or reassigned, and she was listed as a former commissioner on the FTC website.
Speaker A:The case came to the Supreme Court on an application for stay pending appeal.
Speaker A:In their stay request, the Solicitor General asked the Supreme Court to treat its stay application as a petition for a writ of certerary before judgment and grant the petition.
Speaker A:We'll cover more on this case as oral arguments approach.
Speaker A:Suffice to say Slaughter presents massive implications in the areas of presidential and congressional power.
Speaker B:Those are thorny issues confronting the Supreme Court.
Speaker B:You may recall from past episodes.
Speaker B:We discussed Supreme Court interventions in cases where Trump fired members of the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission.
Speaker B:These cases, Trump v. Wilcox and Trump v. Boyle, hold data points that may help forecast the Court's leanings.
Speaker B:In those cases, the Supreme Court granted stay requests allowing the United States to remove members of this bodies while their cases worked through the courts.
Speaker B:I'll link to these episodes in the show.
Speaker A:Notes Last part on Trump vs. Wilcox Wilcox's lawyers wrote a letter to the court in the Slaughter case that asked the judges to also grant certiorari in her case.
Speaker A:However, the Supreme Court rejected Wilcox's certerary request and denied certiorary before judgment.
Speaker A:Stay turned for more details on Trump versus Slaughter, let's now turn to the feature case of this episode, Bost versus Illinois.
Speaker A:Let me read the question presented to our listeners whether petitioners as federal candidates have pleaded sufficient factual allegations to show Article 3 standing to challenge state time, place and manner regulations concerning their federal elections.
Speaker B:You know, that question is deceptively simple, but it cuts to the heart of constitutional law.
Speaker B:Let me read the key constitutional text that's driving this whole dispute.
Speaker B:Article 3, Section 2 the Judicial Power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority.
Speaker B:That language about cases and controversies might sound straightforward, but the Supreme Court has interpreted it to require that plaintiffs have standing, meaning they've suffered a concrete, particularized injury that's traceable to the defendant's conduct and likely to be redressed by a favorable decision.
Speaker A:Exactly.
Speaker A:And what's fascinating here is that this case or controversy requirement was designed to ensure that federal courts don't become roving commissions issuing advisory opinions on every legal question.
Speaker A:But in the election context, that creates this real tension.
Speaker A:Candidates obviously care deeply about election rules, but do they have the kind of concrete injury that Article 3 requires?
Speaker B:Right.
Speaker B:And there's this additional wrinkle with the Elections Clause and Electors Clause.
Speaker B:Article one, Section four says the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.
Speaker B:But the Congress may at any time by law make or alter such regulations.
Speaker B:So states have initial authority, but Congress can override.
Speaker B:And Article 2 gives Congress the power to determine the time of choosing the electors.
Speaker B:So we have this federal framework where Congress has set the first Tuesday after the first Monday in November as Election Day.
Speaker B:But Illinois says we can count ballots that arrive up to two weeks later.
Speaker B:So let's tell the story of how we got here.
Speaker B: s with Illinois's decision in: Speaker B:Like most states, Illinois required mail in ballots to be received by Election Day to count.
Speaker B:But Illinois decided to join what's now about half the states in allowing ballots to be counted if they're postmarked by Election Day but arrive within 14 days afterward.
Speaker B:The law requires either a postmark showing the ballot was mailed by Election Day or or assigned certification dated on or before Election Day.
Speaker B:And Illinois isn't alone here.
Speaker B:This practice actually has deep historical roots.
Speaker B:During the Civil War, many states allowed soldiers fighting away from home to vote absentee, and their ballots were often received after the designated Election day.
Speaker B:So there's this long tradition of accommodating voters who can't physically be present on Election Day.
Speaker A:Right.
Speaker A:And today these laws serve broader purposes, even easing burdens on active duty service members and their families and just generally making voting more accessible.
Speaker A:But here's where it gets interesting.
Speaker A:Legally, Congressman Michael Bost and two Republican presidential elector nominees decided to challenge Illinois's law.
Speaker A: st has been in Congress since: Speaker A: ican presidential electors in: Speaker A: hey filed this lawsuit in May: Speaker B:The district court wasn't having it.
Speaker B: In July: Speaker B:The court said, look, this law affects all federal candidates equally, and you haven't shown how you're particularly harmed compared to your opponents.
Speaker A:The district court was also skeptical of Bost's claim that he suffered pocketbook injuries from having to extend his campaign operations and monitor late arriving ballots.
Speaker A:The court said those expenditures were undertaken to avoid purely speculative harm.
Speaker B:Then the 7th Circuit affirmed in a Split decision.
Speaker B:But here's where the legal reasoning gets really interesting.
Speaker B:The majority agreed with the district court that petitioners lacked standing.
Speaker B:But Judge Scudder wrote this fascinating partial dissent.
Speaker B:Judge Scudder's dissent is actually crucial to understanding this case.
Speaker B:He said, look, Congressman Bost has to keep his campaign headquarters open for two extra weeks, pay his staff longer, send poll watchers to monitor ballot counting.
Speaker B:Those are concrete, particularized costs that are directly traceable to Illinois's law.
Speaker A:And Judge Scudder made this really practical point.
Speaker A: % in: Speaker A:Until the last ballot is counted, he said, federal courts should be wary of labeling such common campaign practices as speculative.
Speaker B:What's particularly striking about Judge Scudder's dissent is how he distinguished this case from Clapper vs. Amnesty International.
Speaker B:In Clapper, the plaintiffs couldn't show they were likely to be subjected to government surveillance.
Speaker B:But here, Judge Scudder said, the application of the challenged government restriction, the ballot receipt deadline, is a near certainty.
Speaker A:That's the key insight.
Speaker A:There's no speculation about whether Illinois will count ballots received after Election Day.
Speaker A:They definitely will.
Speaker A:The question is whether that creates cognizable harm to candidates sufficient for standing.
Speaker A:The Supreme Court granted certiorari to resolve this standing question, and that's significant because the circuits are split on how to handle candidate standing in election law cases.
Speaker B:And this case definitely fits that bill.
Speaker B:It's a fundamental question about the scope of federal court jurisdiction in election law disputes, with practical implications for how and when these challenges can be brought.
Speaker B:Let's dive into how each side makes their case, starting with the petitioners.
Speaker B:Bost and his co plaintiffs make three main arguments, and their broadest one is actually pretty remarkable.
Speaker B:They want the court to adopt a blanket rule that candidates always have standing to challenge election rules.
Speaker B:This is their most aggressive argument.
Speaker B:They say candidates have standing to challenge the rules that govern their elections because they have an obvious, particularized and concrete interest in the legality and fairness of the rules that govern the elections into which they pour their time and treasure.
Speaker A:And they back this up with some staggering numbers.
Speaker A:They point out that in the last cycle, the average Senate race cost $49,624,634 in campaign expenditures, and the average House race cost $4,412,132 in campaign expenditures.
Speaker A:They argue that kind of investment creates a unique stake in election rules.
Speaker B:But it's not Just about money.
Speaker B:They argue that candidates spend time away from their job and family to traverse the campaign trail and pour money and sweat into a campaign, giving them an interest that is undeniably different and more particularized than ordinary citizens.
Speaker A:Their second argument is more focused on Congressman Bost.
Speaker A:Specifically, they contend he has standing based on harm to his electoral prospects.
Speaker A:Now here's where the legal doctrine gets interesting.
Speaker A:They argue candidates don't need a show they'll definitely lose an election, just that their chances might be harmed.
Speaker A:They rely heavily on cases like Davis vs. FEC where this court had no difficulty recognizing that Davis could sue because the challenge provision produced fundraising advantages for his opponent in the competitive context of electoral politics.
Speaker A:So competitive harm can be enough.
Speaker A:And they try to show substantial risk by pointing to voting patterns.
Speaker A:They argue that Democrats were far more likely to utilize mail ballots in previous elections, but both nationally and in Illinois, so late arriving ballots are likely to benefit Bost's opponents.
Speaker B:Their third argument is about concrete pocketbook injury.
Speaker B:They say Illinois's law forces Congressman Bost to keep his campaign running for two more weeks than he otherwise would, which costs his time, money, volunteers and other resources.
Speaker B:This includes two specific types of costs.
Speaker B:First, deploying campaign resources to monitor late arriving ballots and the officials who count them.
Speaker B:And second, extending get out the vote efforts because voters can effectively cast ballots later by mailing them on election Day.
Speaker B:Now let's look at how Illinois responds because they take a very different approach to Article 3 standing.
Speaker B:Their first argument directly attacks petitioners blanket candidate standing rule as antithetical to the separation of powers.
Speaker A:Illinois emphasizes that this court has repeatedly rejected efforts to soften or eliminate the standing requirements for certain categories of plaintiffs and has refused to relax standing rules for members of particular professions.
Speaker A:They're saying candidates shouldn't get special treatment.
Speaker B:And they make this really important point about generalized grievances.
Speaker B:They argue that petitioners interest in having lawful elections is just a classic generalized grievance insufficient to confer standing because ensuring that elections comply with the law is something every citizen cares about, not something particular to candidates.
Speaker A:Illinois's second argument goes right at the heart of whether Boss suffered electoral harm.
Speaker A:And here's the fascinating part.
Speaker A:They argue that Boss did no such thing because he repeatedly disclaimed any need to show a risk of losing the the election or other interference with his practical electoral prospects.
Speaker B:Wait, so you're telling me that during the litigation below, Bost's lawyers actually told the 7th Circuit that their standing argument wasn't based on risk of electoral defeat?
Speaker A:Exactly.
Speaker A:Illinois points out that petitioners told the Court of Appeals that Bost's stated injury is not based on a risk of losing the election and did not depend on Bost's practical electoral prospects, so they arguably waived that theory.
Speaker B:Illinois also attacks the legal theory behind vote margin injuries.
Speaker B:They argue that the possibility that an election rule will reduce the final vote margin by even one vote and without any concrete injury to the plaintiff is not an adequate basis for standing, and they support this with historical practice.
Speaker B:They point to early cases holding that a party seeking an election recount was required to plead facts that, taken as true would render it the duty of the Court either to entirely vacate the election or to declare that another person was duly elected.
Speaker B:In other words, historically, you needed to show the rule could change the winner, not just the margin.
Speaker A:Illinois's third argument tackles the pocketbook injury claim, and they rely heavily on the Supreme Court's decision in Clapper vs. Amnesty International.
Speaker A:They argue that plaintiffs cannot manufacture standing by choosing to make expenditures based on hypothetical future harm.
Speaker A:The Clapper doctrine says that when you spend money to mitigate a risk, those expenditures only create standing if the underlying risk is substantial and the harm you're trying to avoid would itself be cognizable under Article 3.
Speaker A:Illinois says that's not the case here.
Speaker B:Illinois also makes a factual challenge to Bost's claims.
Speaker B:They argue that Illinois law requires mail in ballots to be sent on or before Election Day, so it would be a legal impossibility for Bost to chase ballots, that is to encourage voters to mail them after Election Day.
Speaker A:And they point out that Illinois already has extensive safeguards for mail in voting, including requiring bipartisan panels of election judges to preside over every ballot challenge, whether or not candidates choose to observe the count.
Speaker A:So the monitoring might not even be necessary.
Speaker B:Looking ahead to oral arguments, there are several key tensions I'll be watching for.
Speaker B:First, how do the Justices react to petitioners blanket candidate standing rule?
Speaker B:Do they see it as a common sense recognition of candidates obvious interests or as an unprincipled carve out from Article 3 requirements?
Speaker A:I'm particularly interested in how the Justices handle the Clapper issue.
Speaker A:Justice Thomas and Justice Gorsuch have sometimes been skeptical of overly restrictive applications of standing doctrine, so they might be sympathetic to candidates who have to spend money responding to government rules.
Speaker B:But I could also see Justice Kavanaugh or Justice Barrett asking hard questions about where this principle stops.
Speaker B:If candidates always have standing to challenge election rules, what prevents a flood of ideological litigation by minor party candidates with no realistic chance of winning, and the factual record here is really thin.
Speaker B:Bost's declaration is full of ifs and mays rather than concrete allegations.
Speaker B:I suspect the justices will press both sides on whether this is the right vehicle for resolving these broader standing questions.
Speaker A:There's also this interesting question about timing.
Speaker A:Illinois argues that applying ordinary standing rules will won't push election litigation past election day.
Speaker A:While petitioners warn about the chaos of post election challenges.
Speaker A:That practical debate could influence the justice's thinking.
Speaker B:So why does this case matter beyond just Congressmen Bost and Illinois?
Speaker B:Well, the implications are potentially enormous for how election law disputes get resolved in federal court.
Speaker B:If the court adopts petitioner's broad candidate standing rule, we could see a significant increase in pre election litigation.
Speaker B:Every candidate who disagrees with an election rule, from ballot access requirements to voting machine standards to mail in ballot deadlines, could potentially have an automatic ticket to federal court.
Speaker B:On one hand, that might promote more orderly resolution of election disputes well before election day, which is generally better for election administration.
Speaker B:Courts have more time to consider complex issues, and there's less risk of last minute changes that confuse voters or administrators.
Speaker A:But on the other hand, it could turn federal courts into forums for airing every policy disagreement about election rules.
Speaker A:As Illinois points out, many elections include candidates who have no realistic chance of winning but who seek to advocate certain issues or disrupt the status quo.
Speaker A:Should they all have standing to challenge election laws?
Speaker A:The broader constitutional principle at stake here is the role of Article 3's case or controversy requirement.
Speaker A:The standing doctrine exists to ensure that federal courts only hear disputes where the parties have a real stake in the outcome, not just ideological objections to government policy.
Speaker B:But election law presents unique challenges for traditional standing doctrine.
Speaker B:Elections are inherently competitive, and rules that help one candidate necessarily disadvantage others.
Speaker B:Plus, the window for challenging election rules is often narrow.
Speaker B:Wait too long and courts invoke the Purcell principle to avoid last minute changes.
Speaker B:This case also touches on broader questions about federalism and election administration.
Speaker B:States have traditionally had broad authority over the mechanics of elections, but federal courts are increasingly being asked to referee disputes over state election rules.
Speaker A:And there's this underlying question about whether our legal system is equipped to handle the volume and intensity of modern election litigation.
Speaker A:We've seen an explosion of these cases in recent years, and the court's decision here could either accelerate or constrain that trend.
Speaker B: ith a decision likely by June: Speaker B:Whatever the court decides will shape election law litigation for years to come.
Speaker B:We'll definitely be covering the oral arguments when they happen, so make sure you're subscribed.
Speaker B:This is exactly the kind of case where the Justices questions during arguments can give us crucial insights into how they're thinking about these issues.
Speaker A:Thanks for joining us for this deep dive into Bost vs. Illinois State Board of Elections.
Speaker A:As always, if you found this helpful, please rate and share the podcast.
Speaker A:And if you're a candidate, election administrator, or election law attorney, we'd love to hear your thoughts on how these standing questions play out in practice.
Speaker A:You can reach us through our website.
Speaker B:Thanks for listening to SCOTUS Oral Arguments and Opinions.
Speaker B:In our next episode, we discuss Ellingberg versus United States.
Speaker B:In this case, the Supreme Court must answer whether criminal restitution under the Mandatory Victim Restitution act is penal for purposes of the Ex post Facto clause.
Speaker B:Talk to you soon.
