Justices Weigh Republican’s Challenge to Ballot-Counting Law (1)

The US Supreme Court considered whether an Illinois Republican congressman has a basis to challenge a state law that extends the counting of mail-in ballots two weeks after an election.

A trio of conservative justices appeared open at argument on Wednesday to permit such a lawsuit. They were partly concerned that courts requiring candidates to show that a new voter rule created risks for their electoral prospects would put judges in the prediction business.

“Is there something unseemly about federal courts making prognostications about a candidate’s chance of success immediately before an election that itself might influence the election,” Justice Neil Gorsuch asked.

Chief Justice John Roberts and Justice Brett Kavanaugh also raised concerns about basing the viability of such claims on election probabilities.

Their questioning came in a case stemming from a 2022 lawsuit led by US Rep. Michael Bost claiming Illinois law impermissibly extends Election Day, hurting his electoral chances and finances.

The liberal justices were skeptical that Bost demonstrated a necessary legal injury to pursue the case he brought in 2022.

A district judge and the US Court of Appeals for the Seventh Circuit dismissed the suit on similar grounds.

The court on Wednesday didn’t consider the merits of the ballot counting law, but rather whether Bost has standing, or the legal authority, to challenge it.

A Supreme Court ruling is due by the end of June. If the justices rule for Bost, the case would continue in the lower courts over whether Illinois law counts unlawful ballots after the election.

The justices heard the case as President Donald Trump continues to raise unsubstantiated claims about mail-in voting, which greatly expanded during the pandemic and was responsible for roughly 30% of the votes cast in the 2024 presidential election.

On Wednesday, Bost lawyer Paul Clement argued the law—which allows vote counting so long as a ballot is postmarked on or before Election Day—could cost Bost the election or diminish his margin of victory. It also has financial implications because it extends the campaign, all of which are enough to show standing, he said.

Liberal Pushback

Clement, a former US solicitor general, also went further, arguing candidates always have standing to challenge the rules that govern their elections, a sweeping position that Illinois has argued would engender “chaos” and that the liberal justices appeared skeptical of.

“I have a sense that this whole suit is a little bit in search of a problem,” liberal Justice Elena Kagan said.

She noted that new election rules are regularly challenged by the Republican and Democratic Parties based on their views on whether it will benefit or harm them.

“There are perfectly easy ways for a party to say why a new rule is going to harm them in the electoral game,” Kagan said.

Justices Ketanji Brown Jackson and Sonia Sotomayor also questioned whether the longtime representative had shown evidence he was harmed by the rule.

The three-judge Seventh Circuit panel ruled in 2024 that Bost’s claims of the law hurting his chances were “speculative at best.” The judges noted that Bost, who represents a Southern Illinois district, won his last election with 75% of the vote.

Some conservatives appeared open to Clement’s arguments that political candidates are an object of new election rules, and that the legal standards should match those stemming from new regulations affecting businesses.

He found support from Gorsuch. “You change the rules in government contracting, I don’t know whether that fellow’s going to win or lose the bid, but you’re changing the rules of the game on him,” Gorsuch said. “We find standing in those cases all the time.”

Justice Samuel Alito appeared open to Bost’s argument that an extension in ballot counting represents a “pocketbook” impact that allows them to pursue a legal challenge.

Jane Notz, a lawyer for Illinois, said Bost failed to show in his suit that he was going to be directly harmed by the voting rule and that is what courts should look at when considering standing.

The Justice Department backed Bost in this instance, but urged the justices against adopting his broader theory that candidates always have standing to challenge rules governing their elections.

The case is.Bost v. Illinois Board of Elections, U.S., 24-568, argument, 10/8/25.