Bost v. Illinois State Board of Election is one of the most difficult standing opinions I've encountered. This case is at once simple and extremely difficult. I've been struggling with Bost since I covered it in my Supreme Court simulation class this past semester. I found the Court's ultimate resolution unsatisfying and unpersuasive.
The question presented in Bost was whether a candidate for the House of Representatives has standing to challenge an Illinois law that permits the counting of mail-in ballots that are received after election day. Both the District Court and the Seventh Circuit found that Representative Michael Bost lacked standing. Bost, a Republican, serves in a gerrymandered district, where his margin of victory was significant. The lower courts found that there was no realistic chance that the late-arriving ballots--even if they all went for the Democratic candidate--could make a difference in the outcome of the race. As Justice Jackson wrote in dissent, Bost "never alleges that untimely ballots are more likely to break against him and in favor of his opponent." And the lower courts found that the candidate does not have an interest in padding his margin of victory.
Chief Justice Roberts authored the majority opinion, which was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Barrett concurred in the judgment, joined by Justice Kagan. The Chief found that the candidate has standing because he is a candidate: "As a candidate for office, Congressman Bost has standing to challenge the rules that govern the counting of votes in his election." Justice Barrett, by contrast, found that the candidate has a pocketbook injury, and would not have created a "bespoke" rule for candidates. She wrote, "Bost has standing because he has suffered a traditional pocketbook injury, not because of his status as a candidate."Justice Jackson dissented along with Justice Sotomayor, finding that any purported injury was self-imposed in light of Clapper.
