Who Has Standing?

The liberty principle for this freedom Friday concerns election integrity, specifically, how and when ballots are cast and how and when ballots are counted. “Election day” once met that Americans would go to an election place, cast their ballots, and know the results sometime that night. Now, whole states have mail-in balloting, and at least one state allows ballots to be counted if they arrive two weeks after Election Day.

The Supreme Court heard oral arguments yesterday about the correctness of a law in Illinois that allows “ballots to be counted that arrive up to 14 days after Election Day.” Fred Lucas reported on this case as follows.

The plaintiffs, Rep. Mike Bost, R-Ill. and two presidential electors from the state, contend that federal law established Election Day and Illinois allows votes to come in two weeks longer than federal law allows, which would make such ballots effectively unlawful. Thus, unlawful ballots could cost Bost the election – or reduce his margin for victory.

The plaintiffs also argued the Bost campaign is further injured because it has to pay staff for an additional two weeks after the election.

Plaintiffs are represented by the watchdog group Judicial Watch.

Federal law 2 U.S. Code Section 7 states Election Day for federal offices is the Tuesday after the first Monday of November in even-numbered years.

Illinois says mail-in ballots must be postmarked by Election Day but can arrive up to two weeks later.

A district court and a 2-1 majority of the 7^th U.S. Circuit Court of Appeals determined the plaintiffs in the case of Bost v. Illinois Board of Elections lacked standing to challenge the state law. In other words, the lower courts determined that the plaintiffs challenging the law actually weren’t harmed by it, so they couldn’t bring a suit.

The lawsuit was first filed on May 25, 2022.

The case should be an easy one for the Supreme Court, said Hans von Spakovsky, manager of the Election Law Reform Initiative at The Heritage Foundation.

“The decision of the lower courts was absurd,” von Spakovsky told The Daily Signal. “If a federal candidate whose election is affected by a state election law does not have standing to sue over that state election law, then no one has standing.”

The two Illinois presidential electors joining Bost in the case are Laura Pollastrini and Susan Sweeney. If plaintiffs gain standing in this case, it would almost certainly pave the way for candidates to challenge state laws that allow ballots to arrive well after Election Day.

Rather than the merits of the law itself, the arguments before the Supreme Court concerned the issue of whether Bost and the electors had standing to bring the case in the first place.

But if the high court determines the lower courts improperly threw out the case based on standing, the lower courts will then have to rule on the merits of the ballot law….