Supreme Court allows Illinois congressman to challenge mail-in balloting
The Supreme Court on Wednesday allowed an Illinois congressman and others to pursue a lawsuit challenging the state’s practice of counting mail-in ballots that arrive after Election Day, the first of two possible rulings on the voting practice that President Donald Trump and his allies have claimed without evidence is riddled with fraud.
The high court’s 7-2 ruling dealt with the narrow question of whether Republican U.S. Rep. Michael Bost and two candidates to be presidential electors had standing to sue. It did not involve the legality of the state’s law permitting counting of ballots that arrive up to 14 days after the polls close as long as they are postmarked by Election Day.
Bost, a six-term congressman, and the other plaintiffs claim Illinois’ mail-in ballot procedures violate federal election law, which they argue does not allow the counting of ballots that arrive after Election Day. The case is one of a number of challenges to mail-in ballot laws that Republicans launched after the 2020 presidential election. Trump said fraud in the mail-in vote process cost him that contest, though there is no evidence of this. His administration backed some but not all of Bost’s arguments.
Chief Justice John G. Roberts Jr. wrote the majority opinion, which was joined by four of the court’s other conservatives. Conservative Justice Amy Coney Barrett filed a concurring opinion that liberal Justice Elena Kagan joined.
“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. “Their interest extends to the integrity of the election — and the democratic process by which they earn or lose the support of the people they seek to represent.”
The court’s two other liberals, Ketanji Brown Jackson and Sonia Sotomayor, filed a dissenting opinion saying Bost had not shown he had suffered a real-world injury, the legal standard for bringing a lawsuit.
“Alarmingly, today’s ruling also has far-reaching implications beyond Bost’s election, since dispensing with our usual standing requirements opens the floodgates to exactly the type of troubling election-related litigation the Court purportedly wants to avoid,” Jackson wrote.
The case could prompt similar election challenges across the country. Trump and many of his allies view expansive mail-in balloting rules as favoring Democrats.
In another major case this term, the justices will directly weigh the legality of counting ballots that arrive after Election Day. The case has the potential to upend how elections are run in more than a dozen states before midterm elections this year.
Trump and other Republicans have pushed to end grace periods for mail-in ballots.
Most states require mail-in ballots to be in the hands of election officials no later than Election Day, but 14 states allow ballots to be counted if they are postmarked by then, according to the National Conference of State Legislatures.
More than two dozen states provide grace periods for military and overseas voters. In one sign of the Republican turn against grace periods, Ohio Gov. Mike DeWine (R) signed legislation last month requiring that mail-in ballots be received before or on Election Day.
Trump in March signed an executive order that sought to punish states that accept ballots after Election Day. A judge has blocked that part of the order for now as a legal challenge to it continues.
The U.S. Postal Service last month finalized a policy that says mail doesn’t have to be postmarked on the same day it is placed in postal boxes, meaning mail may not be postmarked until days later. That means some ballots mailed just before or on Election Day may not be counted, even in states that allow grace periods.