On October 8, the Supreme Court heard oral argument in Bost v. IL Bd. of Elections. The merits question in this case is juicy: does federal law prohibit states from accepting congressional ballots after election day? But in Bost, the Supreme Court only considered the threshold issue: does a congressional candidate have standing to bring a pre-enforcement challenge to a state law that allows the state to receive ballots for two weeks after election day?
A divided panel of the Seventh Circuit found that Representative Mike Bost, an Illinois Republican, did not have standing. The panel's ruling turned in large part on the fact that Bost was an incumbent, and had won many elections by a sizable margin. The court reasoned that any late-arriving ballots might have affected his margin of victory, but would not have affected the ultimate outcome. Moreover, Bost argued that he suffered a "pocketbook" injury because he had to maintain his campaign staff for two additional weeks. The Seventh Circuit panel ruled that this injury was self-inflicted, because the law did not require him to maintain his staff, even as late-arriving ballots are counted.
Going into the argument, I was fairly confident the Supreme Court would reverse this ruling. At a minimum, the Seventh Circuit's opinion forces these sorts of challenges into the post-election context, and we all know how well that worked out after the 2020 election. What I wasn't sure about was which rule the Court would adopt.
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