Bost v. Illinois State Board of Elections

LII note: The U.S Supreme Court has now decided Bost v. Illinois State Board of Elections

    Issues

    Do political candidates have Article III standing to challenge election laws?

    Oral argument:
    October 08, 2025
    Court below:
    United States Court of Appeals for the Seventh Circuit

     

    This case asks the Supreme Court to determine whether federal political candidates generally, and Michael Bost specifically, have Article III standing to challenge state election laws. In particular, the parties are asking the Court to identify the appropriate legal standard to establish Article III standing with respect to political candidates. Petitioners, Michael Bost, et al. (“Bost”), argue that political candidates meet the injury in fact requirement of standing because candidates are harmed by the possibility of losing an election, by their participation in an illegitimate election, and by the divergence of funds used to maintain an extended campaign. Respondents, the Illinois State Board of Elections, et al. (“Illinois”), counter that candidates cannot meet this requirement by simply asserting a risk of losing an election but instead must provide evidence that the risk of individual harm is substantial. A decision in favor of Bost would likely reduce standing requirements for political candidates, making it likely that more candidates will bring lawsuits challenging election laws. A decision for Illinois would make it more difficult for political candidates to bring suit, and if evidence of changed election outcomes is required, litigation surrounding election laws may be pushed until after elections take place, leading to uncertain and even overturned election results. 

    Questions as Framed for the Court by the Parties

    Whether petitioners, as federal candidates, have pleaded sufficient factual allegations to show Article III standing to challenge state time, place, and manner regulations concerning their federal elections.

    Facts

    States have the discretion to regulate federal elections unless the state regulations interfere with federal laws. Elections for the members of the House of Representatives must take place on the “Tuesday next after the 1st Monday in November.”  Electors for the President and Vice President must “be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.” In Illinois, voters may cast their ballots by mail if their ballots are dated on or before election day.  Election authorities then have a two-week period after election day during which they can count mail-in ballots that are properly postmarked or certified.

    In 2022, Michael Bost and two political activists and electors sued the Illinois State Board of Elections and the Executive Director of the Board in her official capacity. Bost alleges that the Illinois election laws violate 2 U.S.C. § 7 and 3 U.S.C. § 1 by allowing election officials to receive and count votes for an additional fourteen days after election day, which impermissibly extends the election day past the timeframe the federal statutes provide. Illinois moved to dismiss, arguing that Petitioners lack standing to sue because they did not suffer an injury from Illinois’s election laws.

    To assert Article III standing, petitioners must show that they suffered an “actual injury” or “injury-in-fact” that can be traced back to the respondent’s actions, and the injury must be more than an interest shared by all members of the public.  Petitioners assert standing as candidates on the grounds that election rules affect candidates more directly than general members of the public and running campaigns and monitoring ballots for two weeks after election day creates additional costs.

    The United States District Court for the Northern District of Illinois dismissed the case for lack of standing and for failure to state a claim, ruling that Petitioners did not plead sufficient injuries. On appeal, the Seventh Circuit considered whether Petitioners adequately alleged “a sufficient injury in fact.” The Seventh Circuit affirmed the district court’s decision. The Seventh Circuit denied Petitioners’ standing as voters because any vote dilution from mail-in ballots would dilute all votes equally; the Seventh Circuit denied Petitioners’ standing as political candidates because they did not have to continue to run their campaigns past election day, so any additional costs were self-incurred.

    In November 2024, Bost petitioned for a writ of certiorari with the Supreme Court of the United States appealing the circuit court decision. The petition argues that the circuit court’s opinion conflicted with other circuit authority supporting the proposition that political candidates have standing to contest federal election laws. The Supreme Court granted certiorari on May 27, 2025. 

    Analysis

    STANDING OF POLITICAL CANDIDATES

    Bost argues that candidates running for federal office have Article III standing to challenge election laws.  Bost argues that counting invalid votes may cause harm by changing the outcome of the election. Bost argues that counting invalid votes delegitimizes elections and causes them to lose the appearance of fairness, harming both winning and losing candidates. Accordingly, Bost contends that candidates have standing to challenge election rules because they have an “obvious, particularized, and concrete” interest in ensuring fair and legal elections. In addition to the effect on electoral outcomes, Bost argues that political candidates also suffer “pocketbook injuries” from running their campaigns after election day, which is sufficient to support standing. Bost contends that because the challenged law affects the length of the candidates’ campaigns, candidates will spend more money on maintaining their campaign headquarters and paying campaign staff. Bost explains that increasing the costs of running campaigns harms all candidates, regardless of their campaign’s likelihood of success. Bost argues that candidates’ interests are more particularized than voters’ interests because they invest their “time and treasure” into their elections.

    By contrast, Illinois argues that separation of powers considerations refute the idea that all political candidates inherently have Article III standing. Illinois argues that the Supreme Court has declined to lessen the requirements of Article III standing because doing so would violate separation of powers by expanding the power of the courts. Illinois urges the Court to follow its past precedent and continue to impose strict requirements for standing. Illinois agrees that reputational harms can be legally recognized to find standing, but Illinois emphasizes that not all political candidates face reputational harm from allegedly inaccurate election counts. Furthermore, Illinois argues that candidates cannot simply assume that a benefit to an opponent is a harm to them. Rather, Illinois contends, the burden continues to rest on the plaintiff to demonstrate a plausible and direct link between the challenged election law and a cognizable injury. Finally, Illinois rebuts Bost’s “time and treasure” argument by noting that time and passion for a cause are insufficient to establish standing, and Bost here is asking the court to recognize a harm suffered by candidates who cannot fund a lengthened campaign, contradicting Supreme Court precedent.

    STANDING OF CONGRESSMAN BOST

    Bost argues that even if candidates generally lack standing to challenge federal election laws, he has standing to challenge the Illinois mail-in ballot statute in question. Bost argues that the Illinois statute will harm his electoral prospects, which some federal courts of appeals have held is a cognizable injury to establish Article III standing. Bost points to Meese v. Keene, in which the Supreme Court held that a candidate had standing to challenge a federal law based on the law’s potential harm to the candidate’s reputation and electoral prospects. Bost explains that petitioners asserting Article III standing only need to show that there is a “substantial risk” that the harm will occur. Bost argues that political candidates seeking to challenge election laws surpass this threshold of substantial risk of harm because any election rule has a substantial risk of harming a candidate. Finally, Bost argues that he suffered a “pocketbook injury” from paying to run his campaign for an additional two weeks after election day, which Bost argues is sufficient to support Article III standing. Bost argues that the additional expenses incurred by monitoring late-arriving ballots and extending his “get-out-the-vote” efforts are a direct result of the Illinois statute that allows voters to cast mail-in ballots as late as election day, which satisfies the Article III standing requirements.

    Illinois agrees that Bost must show a “substantial” risk of injury, but Illinois contends that Bost’s evidentiary record fails to make that showing. Illinois also argues that absent additional evidence, the likelihood of a different vote margin is not a sufficient basis for standing because it is possible the margin of error is so slight that there is no impact on the outcome of the election or the reputations of the participating candidates. Illinois refutes Bost’s “pocketbook injury” claim by arguing that Bost failed to trace his alleged expenditures back to the “cognizable injury” and to the challenged statute. Illinois argues that Bost’s “get-out-the-vote” campaign expenditures cannot be extended due to the late ballot count because the ballots still must be submitted by the end of election day, so there is no reason to encourage people to vote when it is already too late to do so. Furthermore, Illinois explains that regardless of the ballot-count rule, mail-in ballots could always be submitted at polling sites, so it was not necessarily true that they needed to be completed and mailed long before election day, so it is not logical that Bost’s campaign would change length or expense in direct response to the challenged law. Lastly, Illinois argues that Bost cannot establish standing based on his expenses incurred to monitor election activity because voluntary expenditures to mitigate a hypothetical harm is effectively buying standing, which the Court has previously rejected. Illinois presents precedent explaining that standing based on resource-diversion requires proof that the harm intended to be prevented is “itself a legally cognizable Article III injury.”

    Discussion

    ELECTION LITIGATION

    The Republican National Committee (“RNC”) argues, in support of Bost, that unless the standing requirements for political candidates are relaxed, candidates will be forced to wait until just before, or even after, the election to bring suits challenging election laws. The RNC argues that if a candidate must have substantial proof that a contentious law will negatively impact his or her campaign, as the Seventh Circuit decision suggests, the candidate must wait until vote results come in. This, the RNC contends, will lead to a rise of post-election litigation. Additionally, the Center for Election Confidence claims that upholding the Seventh Circuit decision will prevent minor-party candidates from bringing suit to challenge election laws because those candidates almost never win, and under the Seventh Circuit decision, would therefore never have standing to sue. 

    The District of Columbia, in support of Illinois, argues that relaxing standing requirements would cause an increase in election litigation, which state governments would have to defend. The District of Columbia explains that states already constitutionally bear the responsibility and cost of conducting increasingly complex elections. The District of Columbia argues that an increase in litigation would force states to spend time and money on legal defense instead of focusing on the smooth operation of the elections, arguing that each lawsuit can have massive “downstream effects on thousands (or even millions) of voters and ballots.” The District of Columbia describes the vast number of election laws and worries that all of these election laws could become the subject of expensive litigation if candidates no longer have to prove actual harm to establish standing.

    ELECTION LEGITIMACY

    Bost argues that a rise in post-election litigation may cause courts to overturn already-decided elections, which Bost believes would greatly undermine public confidence in elections. Bost contends that the public would prefer for courts to grant standing to candidates well before elections, complete the litigation of challenged election rules, and then run the election with the agreed upon rules in place. The RNC asserts that if election rules are changed after an election has concluded, and voters have already relied upon the illegitimate election laws, courts will have to choose to support an illegal election or to disenfranchise voters, both of which undermine election legitimacy. The Integrity Project California, in support of Bost, argues that delaying lawsuits and limiting which candidates can bring them will, to the detriment of election legitimacy, reduce pressure on states to operate fair elections. 

    The District of Columbia, in support of Illinois, claims that most election litigation is frivolous, so limiting standing only to plaintiffs with a substantial risk of cognizable injury will not undermine election legitimacy. The District of Columbia argues that the increase in meritless suits would pull state resources away from addressing substantially impactful claims, thereby destabilizing the elections in a different way. Citing another Supreme Court case for support, the District of Columbia claims the “avalanche of litigation” will “undermine voter confidence in the perceived integrity and legitimacy of the electoral process.” The District of Columbia argues further that overturning the Seventh Circuit decision and allowing per se standing for political candidates would impose a new burden on states to defend their election rules and procedures “threefold: in practice, in legal proceedings, and in the eyes of the public.”

    Conclusion

    Authors


    Written by:    Caroline “Kiki” Plowe and Quinn E. Ackerman

    Edited by:      Andrew Hallowell

     

    Additional Resources