Yesterday I wrote about Paul Clement's "Article III of the Deal" in Bost v. Illinois State Board of Election. It seems that the Court will find that a member of Congress has standing to challenge a law that permits the counting of absent ballots that are received two weeks after election day. Before the election, the law does not operate directly on candidates. And even after the election, the late-arriving ballots may have no appreciable impact on the outcome of the race. But during oral argument, several justices were mortified by the prospect of funneling these cases to post-election litigation. Specifically, the Justices worried that if the court finds that the Constitution prohibits counting these ballots, then judges would have to disqualify ballots. Indeed, the Supreme Court in particular might have to decide the outcome of the election!
It seemed clear that the Justices still have PTSD from the aftermath of the 2020 election.
Paul Clement, counsel for Representative Bost, spoke to these fears during his opening:
