Tomorrow, the Supreme Court will hear argument in Bost v. Illinois State Board of Elections, an important case on who has standing, and in what circumstances, to bring prospective challenges to election laws in advance of the election. I’ve published a piece in Law 360 (paywalled), with NYU student Sam Ozer-Staton, that analyzes the issues in the case. Here’s an excerpt:

The question now before the court is who, if anyone, can allege a judicially cognizable injury in prospective cases raising federal law challenges to election rules.

Bost, represented by Paul Clement, advances three arguments for standing. First and most broadly, Bost argues that candidates generally have standing to challenge the rules that govern their election because, in light of the “unique and substantial personal investment” candidates make in their own elections, they have a particularized and concrete interest in the legality of those rules.

More narrowly, Bost next argues that at a minimum, candidates should have standing to bring prospective challenges when “there is a ‘substantial risk'” that a law will diminish their electoral prospects. This includes, according to Bost, not just a risk that the candidate might
lose, but also a risk that the margin by which a candidate might win would be affected. Narrower wins might make a candidate more vulnerable to challenge in the next election or dissuade donors.

The U.S., as amicus curiae, supports standing, but on a still narrower basis: Candidates should have standing for prospective challenges only when the challenged rule poses a risk of affecting the election’s outcome.

All of these theories are specifically candidate-centered.

In contrast, Bost’s third basis for standing would also have direct implications for non-candidates who seek to bring prospective federal court challenges to election laws. This
theory is what Bost calls “classic pocketbook injury.” Because Illinois’ policy requires officials to count absentee ballots for up to 14 days after Election Day, campaigns must spend additional resources keeping operations running — maintaining a headquarters, paying staff
and deploying poll watchers.

The American Civil Liberties Union and the League of Women Voters filed an amicus brief that — while sharply disagreeing with Bost on the merits of Illinois’ policy — advances a similar diversion-of-resources theory, asserting that civic groups have standing to prospectively challenge state election laws that implicate their core activities and force them to reallocate staff and budgets.

These issues of standing implicate pragmatic issues concerning the proper timing of federal court election litigation. …

Resolving disputed election law issues in advance of the election does not just benefit voters, parties and campaigns. It also benefits the federal courts themselves. If challenges to policies, such as the legality of Illinois’ absentee ballot deadline, cannot be brought until the moment election officials begin to count those ballots, federal courts would be put in the position of deciding questions like this only when it is likely to be clear to all which candidate and party would benefit — and which would be hurt — from the court’s ruling.

Because the courts would not be acting behind a veil of ignorance, the losers from the court’s decision are more likely to believe the court acted for partisan reasons. That can undermine confidence in the integrity and impartiality of the judicial system.

In addition, the courts would be asked to disqualify ballots that voters had cast in reliance on the existing rules. In the Illinois context, for example, if courts cannot decide the legality of the state’s absentee ballot deadline until election officials begin to process and count those ballots, what would happen if the federal courts were to conclude that Illinois’ deadline violates federal law? Would the courts disqualify all absentee ballots that came in
after Election Day?

That would be unfair to the voters who had simply relied on state law and returned their ballots on time under Illinois law. Indeed, it might implicate due process considerations that apply in the election context. Lower federal courts have found that due process was violated when state courts dramatically change the interpretation of election laws after votes have been cast.

At a minimum, federal courts presumably want to avoid being put in the position of tossing out ballots that have been validly cast under existing state law at the time of the election….

If candidates, such as Bost, lack standing to challenge, in advance of the election, the legal deadline for receipt of absentee ballots, it’s not clear who would have pre-enforcement standing. Perhaps voters who believe Illinois’ deadline to be illegal could bring a vote dilution challenge on the theory that their legal votes would be diluted by votes they claim are illegal because those ballots were returned after Election Day. Whether the Supreme Court would recognize this type of vote dilution theory as a legal injury sufficient to support standing, however, is not yet clear.