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Trump Ally Can Challenge Rules For Mail-In Ballots, Supreme Court Rules

As a political candidate, Rep. Mike Bost (R-Ill.) — a longtime ally to President Donald Trump who was involved in efforts challenging Joe Biden’s 2020 presidential victory — has the right to challenge rules governing how Illinois counts votes in its election, the Supreme Court ruled Wednesday.

The 7-2 ruling was written by Chief Justice John Roberts. Justice Sonia Sotomayor wrote the dissent.

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“Rules that undermine the integrity of the electoral process also undermine the winner’s political legitimacy. The counting of unlawful votes — or discarding of lawful ones — erodes public confidence in election results and the elected representative. ‘[R]eputational harms’ are classic Article III injuries,” Roberts wrote Wednesday.

As HuffPost reported in October, Bost sued the Illinois State Board of Elections in 2022 claiming that mail-in ballots counted after an election should be considered illegal because they “dilute” the election results, generally speaking.

Bost also argued that if his campaign had to count mail-in ballots after Election Day in Illinois, it would cost him extra money and force him to divert limited campaign resources.

Illinois election officials had argued last year that the counting of mail-in ballots for a set period of time after an election — most states have rules for mail-in ballots that hinge on postmarked deadlines and more — was actually an expansion of this so-called “democratic stability.” It didn’t injure candidates or voters, they claimed, and if it did, then a candidate would need to show that harm clearly.

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But for Bost — and even voting rights organizations, like the League of Women Voters, which filed a brief arguing in support of the Republican candidate’s claims — even trying to show that harm was injurious.

But not according to Chief Justice Roberts.

“Candidates do not need to show a substantial risk that a rule will cause them to lose the election or prevent them from achieving a legally significant vote threshold in order to have standing. Requiring such a showing could channel many election disputes to shortly before election day or after. Only then will many candidates be able to predict with any certainty that a rule will be outcome determinative,” he said. “Yet the Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. Such late-breaking, court-ordered rule changes can result in voter confusion and undermine confidence in the integrity of electoral processes. The democratic consequences can be worse if courts intervene only after votes have been counted. Counting first and ruling upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires.”

Making a candidate explain a “substantial risk of harm” would leave no one “any surer footing,” he added.

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“Such an approach would force judges to assess whether an election rule is likely to disadvantage a particular candidate — determinations judges are no better qualified to make than assessing a candidate’s likelihood of winning or losing. Candidates would also have to plead and prove that voters who take advantage of the challenged rule will favor their rivals, which may require divulging information about political vulnerabilities,” he wrote.

This is a developing story. Please check back for updates.