Bost v. Illinois State Board of Elections raises important questions about who, if anyone, has standing to bring federal challenges to certain types of election laws in advance of an election. These are laws that expand opportunities to vote but are alleged to violate federal law or the Constitution. The standing issue also implicates a practical issue of considerable importance, which is whether certain federal challenges can be brought before Election Day or only in the midst of the vote casting and vote counting process.

In this case, the argument is that federal law, known as the Single Election Day Act, makes it illegal for state law to permit absentee ballots in federal elections to be valid if they are postmarked by Election Day but received some number of days later.

On the merits, I think this challenge should fail. But the Court did not take the case to address the merits now (the Court is likely to have to do so down the road, given conflicts in the lower federal courts on the issue). In a 2-1 decision, the Seventh Circuit dismissed the case on the grounds that neither voters nor candidates in an upcoming election had standing to challenge Illinois’ absentee ballot policy. The Court granted cert. on this standing issue. The question is whether anyone has a cognizable injury to challenge the policy.

There’s no question that a candidate would have standing to challenge Illinois’ policy after votes were cast. A candidate could sue to block the counting of these post-Election Day ballots or could bring an election contest on the ground that the outcome was unlawful, if the number of these post-Election Day ballots exceeded what would otherwise be the margin of victory. But as I have argued before, the last thing we should want, if it can be avoided, is to have courts resolve legal issues in the midst or aftermath of the voting process. And indeed, candidates who wait until after Election Day to challenge the legality of a policy can have their suits dismissed on laches grounds, for waiting too long to bring suit.

But is there a legally recognizable injury, and to whom, in advance of the election, when we don’t know who will benefit or be disadvantaged by the policy and whether the policy could affect the outcome? When a policy restricts access to the vote, voters will have standing in federal court; they can argue the right to vote has been infringed. But when a policy expands opportunities, and a plaintiff wants to argue the policy is illegal or unconstitutional, that’s when the standing issue becomes more complex.

Two major categories of plaintiffs exist. One is legal voters, who would argue that their right to vote is being unconstitutionally diluted when votes that are illegal (as they allege) are permitted to be cast. The Supreme Court has not yet decided whether vote dilution claims of this sort can be brought, that is, whether this is a recognizable constitutional injury. Two academic articles by election law scholars, here and here, argue that the courts should recognize this type of vote dilution injury. If a vote dilution injury of this nature is recognized, it would mean any voter in the state would have standing. In the Illinois case, the plaintiffs did include voters; the Seventh Circuit denied their standing claim. The petitioners then decided to abandon this claim when they sought cert. in order to focus on the second category of potential plaintiff.

That second category is candidates for office. For them, two theories of standing get invoked. One is that they will have to expend campaign resources if the policy they challenge is legal (organizations that would have to do so would also have standing under this theory). Here, Congressman Bost argues he will have to monitor the post-Election Day ballots, decide whether to challenge any of them one by one, and the like. The second theory is that candidates suffer what some courts have called “competitive injury” from having to compete in an election under rules that (they allege) are unlawful.

It is not clear how much practical difference there might be between these two different bases for candidate standing. Competitive injury is both narrow and broad; narrow, in that only candidates would have it, but broad, in that it would seem to mean candidates would pretty much always have standing in advance of elections to challenge the legality under federal law of state election laws. Perhaps that would be a good development, since it would mean getting the rules clearly settled in advance of the election.

For these reasons, the Court is right about the importance of confronting these issues and providing clarity for the lower federal courts in advance of any immediately pending election.  I would expect a decision in early 2026.