The Supreme Court issued an election-related ruling Wednesday that led Justice Ketanji Brown Jackson to accuse the majority, in essence, of failing to respect democracy.
The ruling was about a plaintiff’s ability to challenge an election law. It wasn’t about the validity of the law itself, but the decision is nonetheless significant for future election litigation.
The case, Bost v. Illinois State Board of Elections, concerned a lawsuit from a Republican congressman in the state, Michael Bost. He wanted to sue over a state law that requires election officials to count mail-in ballots postmarked or certified by Election Day and received within two weeks of Election Day. He argued that counting ballots received after Election Day violated federal law.
But a trial court dismissed his case, and an appeals court upheld the dismissal on the grounds that Bost didn’t have the legal right to sue, or “standing.” He appealed to the Supreme Court seeking permission to press his challenge.
In the ruling authored by Chief Justice John Roberts, the court sided with Bost, reasoning that he has standing by virtue of his candidacy. “Candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the cost of their campaigns,” Roberts wrote, joined in full by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
The court’s sixth GOP appointee, Amy Coney Barrett, wrote a concurring opinion, joined by Justice Elena Kagan, in which she agreed that Bost had standing but for different reasons. Barrett said he has standing due to the “pocketbook injury” he would suffer from the costs he’d incur. She refused to endorse what she called Roberts’ “bespoke” special rule for candidates. “We have always held candidates to the same standards as any other litigant,” she wrote.
Jackson’s dissent, joined by Justice Sonia Sotomayor, criticized both the majority and the concurrence. The Biden appointee said Barrett rightly rejected the “bespoke candidate-standing rule,” but also said that her “pocketbook theory” would let candidates “spend their way” into standing, despite precedent to the contrary.
When it came to the majority, Jackson argued that its “primary failing is its refusal to recognize that the alleged injury it identifies – the suffering that results from an unfair electoral process – is not particular to candidate-plaintiffs.”
The justice invoked broader democratic principles throughout her dissent, accusing the majority of giving them short shrift.
She said the ruling “all but ignores the particularity requirement and the democracy-preserving function that it serves.” When the overall fairness of elections is at stake, she said, “it is the people’s shared interest in democracy itself (and not just the candidate’s job prospects) that hangs in the balance.” She concluded that the ruling “complicates and destabilizes both our standing law and America’s electoral processes.”
Jackson argued that the decision “alarmingly” has “far-reaching implications,” writing that it “opens the floodgates to exactly the type of troubling election-related litigation the Court purportedly wants to avoid. For example, under the Court’s new harm-free candidate-standing rule, an electoral candidate who loses in a landslide can apparently still file a disruptive legal action in federal court after the election is over,” she wrote.
We’ll find out whether those far-reaching consequences come to pass. A couple of points to keep in mind, especially in light of the concerns Jackson raised. One, as noted above, is Kagan splitting from her fellow Democratic-appointed justices — an interesting phenomenon within the three-justice minority but one whose importance shouldn’t be overstated. Like Sotomayor and Jackson, Kagan has been attuned to democracy-related concerns in divided cases. For example, she recently led the three Democratic appointees in dissent from the majority’s move to green-light Texas’ congressional map ahead of the November midterm elections. Her joining Barrett’s concurrence doesn’t seem like an about-face from her record in that regard. She’ll likely be leading the dissenters in other cases to come this term. Consider, too, that the League of Women Voters and the American Civil Liberties Union supported Bost at this stage of the litigation. In an amicus brief to the justices ahead of the ruling, they said they “vehemently oppose” his position on the merits but support the right to bring lawsuits in general. They emphasized that they “have fought to advance state laws like the one challenged here, through political advocacy and litigation, to ensure that voters who complete and mail in their ballots by Election Day are not disenfranchised through no fault of their own.” And though Bost’s appeal didn’t address the merits of his argument against counting ballots, the Supreme Court is slated to decide another case this term, from Mississippi, that deals with that underlying issue. That’s just one of the upcoming important election-related cases for the court to decide this year ahead of the midterms, including the pending redistricting case from Louisiana that calls into question the future of the Voting Rights Act. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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