Justices eye letting candidates challenge states that change voting rules

The Supreme Court seemed poised Wednesday to embrace new rules that would give candidates for federal office the chance to challenge election rules in court well before votes are cast, a move that could give Republicans more room to confront Democratic states’ mail-in ballot laws.

The justices heard oral arguments on a case from Rep. Mike Bost, a Republican who was denied the chance to challenge Illinois’ law allowing mail-in ballots to be counted up to two weeks after Election Day. Lower courts ruled he didn’t have legal standing to sue because he couldn’t show he was particularly injured by the law.

Most of the justices seemed dismayed by that argument. They said giving candidates at least some chance to sue seemed reasonable.

“I’m sort of in sympathy with the view that this bar should not be all that high,” said Justice Elena Kagan, an Obama appointee to the high court.

Republican- and Democratic-led states alike have pushed significant changes in voting rules in recent years, spurring a flood of lawsuits in federal courts.

Paul Clement, Mr. Bost’s attorney, said Democrats can sue more easily because they can usually find a voter who claims to be put out by Republican-led states’ moves to tighten rules. He said it’s tougher for Republicans to challenge when a Democratic-led state loosens the rules.

Giving candidates the power to sue would level that playing field to some extent.

“A candidate is not a bystander in his or her own election,” Mr. Clement said. “They have a special interest in what’s on the ballot.”

The underlying issue in the case is Illinois’ vote-counting law. Mr. Bost said that allowing ballots to be received and counted weeks after Election Day violates federal law.

The only question before the justices Wednesday was whether Mr. Bost could bring a lawsuit.

The justices generally agreed that he could likely sue after Election Day while the votes are being counted. Mr. Clement argued that forcing courts to deal with politically charged questions in a matter of days or even hours as counting proceeds can be messy.

“That’s kind of a nightmare scenario,” he said.

Several justices shared that view.

“What’s the remedy? Do I throw out those votes?” wondered Justice Brett M. Kavanaugh, a Trump appointee.

Illinois Solicitor General Jane Notz defended the law. She said letting candidates challenge vote-counting policies would spur a rash of lawsuits.

She said that if Mr. Bost could prove ahead of time that his win or loss depended on the late-counted ballots, he would be in a better position to sue. She noted that Mr. Bost has regularly won reelection, including with 74% of the vote last year.

Ms. Notz said the congressman’s “desire to run up the score” isn’t enough of an injury to get him into a courthouse.

“A smaller margin of victory has no real-world consequences,” she said.

Justice Sonia Sotomayor, an Obama appointee, was sympathetic. She said the law is designed to help voters, and they still have a chance to vote for the candidate of their choice.

She worried about allowing anyone who registers as a candidate to have standing to sue.

Justice Ketanji Brown Jackson said Mr. Bost’s concerns were “speculative” in guessing that the vote-counting rules would harm him.

“You might be disappointed, but that’s not what we look at when evaluating standing,” the Biden appointee said.

Chief Justice John G. Roberts Jr. said Illinois’ position sounded like allowing candidates to sue only if a court decided they were in a close election. He said that would be “a potential disaster.”

Mr. Clement said the win-loss outcome should matter, and so should a closer margin of victory.

He said that no matter what, a candidate must spend extra money to keep a campaign going and monitor the late-arriving ballots. Extra spending has long been considered a classic argument for legal standing.

Justice Kagan suggested a test for candidates’ standing requiring them to do more than register to run.

“All you have to do is come in and say why the rule puts you at a disadvantage,” she said.

“I could live with that rule,” Mr. Clement said.