The ACLU, the League of Women Voters, and other groups have filed an amicus brief in support of the standing claim raised by candidate for Congress Michael Bost in Bost v. Illinois State Bd of Elections. Bost is seeking to argue that Illinois is violating federal law by permitting absentee ballots to be counted in federal elections if postmarked by Election Day, even if they are received some number of days after Election Day. In an earlier blog post, I said the Court had been right to take this case, given the importance of the standing issue.
The ACLU argues that Bost should have standing, even though it strongly disagrees with his position on the merits. Interestingly, the ACLU argues that a candidate like Bost should have standing based on the “diversion-of-resources” theory of standing, which organizations (like the ACLU and LWV) frequently rely on for standing. The ACLU does not rest its standing argument on the idea that candidates have “competitive standing” to challenge state election laws.
Here’s an excerpt from the amicus brief explaining why candidates, like Bost, should have standing in contexts like this challenge to Illinois election law:
Equally to the point, it is not merely
Representative Bost’s choice to monitor incoming mail
ballots during the post-Election Day period, as the
court of appeals wrongly suggested. It would be
political malpractice not to do so. Candidates and civic
groups working on elections have to conduct their
work in response to the legal framework governing the
election in question. Electoral regulations, no less
than business regulations, “‘may be likely’ to cause
injuries” to parties other than those who are directly
compelled to action by forcing them to spend resources
and thus incur potential economic harms. Diamond
Alt. Energy, 145 S. Ct. at 2136 (citing AHM, 602 U.S.
at 384). Here, Illinois’s regulation of the mail ballot
process, predictably and as a matter of “commonsense
economic realit[y],” “may cause downstream or
upstream economic injuries” to candidates, voters,
voter registration groups, or political parties. Id.
Allowing mail ballots to arrive up to fourteen days
after Election Day necessarily means those who must
build their efforts around the operative election rules,
like campaigns and nonpartisan civic groups whose
core activities include election-related work, will
continue their election-monitoring, ballot-chase, and
other operations, with all the economic effort that
entails….Candidate standing to challenge election rules
that effectively force their campaigns to incur
expenditures, draining resources from other
campaign functions, fits comfortably within this
Court’s long line of cases recognizing standing based
on economic injuries, including by resource diversion.
If a challenged electoral rule tangibly affects the way
a candidate campaigns, by altering in specific,
articulable ways how they spend their limited staff or
volunteer time, money, and resources, it can result in
a concrete injury.