The Supreme Court issued an election-related ruling Wednesday that led Justice Ketanji Brown Jackson to accuse the majority, in essence, of failing to respect democracy.
The ruling was about a plaintiff’s ability to challenge an election law. It wasn’t about the validity of the law itself, but the decision is nonetheless significant for future election litigation.
The case, Bost v. Illinois State Board of Elections, concerned a lawsuit from a Republican congressman in the state, Michael Bost. He wanted to sue over a state law that requires election officials to count mail-in ballots postmarked or certified by Election Day and received within two weeks of Election Day. He argued that counting ballots received after Election Day violated federal law.
But a trial court dismissed his case, and an appeals court upheld the dismissal on the grounds that Bost didn’t have the legal right to sue, or “standing.” He appealed to the Supreme Court seeking permission to press his challenge.
In the ruling authored by Chief Justice John Roberts, the court sided with Bost, reasoning that he has standing by virtue of his candidacy. “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, joined in full by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
The court’s sixth GOP appointee, Amy Coney Barrett, wrote a concurring opinion, joined by Justice Elena Kagan, in which she agreed that Bost had standing but for different reasons. Barrett said he has standing due to the “pocketbook injury” he would suffer from the costs he’d incur. She refused to endorse what she called Roberts’ “bespoke” special rule for candidates. “We have always held candidates to the same standards as any other litigant,” she wrote.
Jackson’s dissent, joined by Justice Sonia Sotomayor, criticized both the majority and the concurrence. The Biden appointee said Barrett rightly rejected the “bespoke candidate-standing rule,” but also said that her “pocketbook theory” would let candidates “spend their way” into standing, despite precedent to the contrary.
When it came to the majority, Jackson argued that its “primary failing is its refusal to recognize that the alleged injury it identifies – the suffering that results from an unfair electoral process – is not particular to candidate-plaintiffs.”
The justice invoked broader democratic principles throughout her dissent, accusing the majority of giving them short shrift.
She said the ruling “all but ignores the particularity requirement and the democracy-preserving function that it serves.” When the overall fairness of elections is at stake, she said, “it is the people’s shared interest in democracy itself (and not just the candidate’s job prospects) that hangs in the balance.” She concluded that the ruling “complicates and destabilizes both our standing law and America’s electoral processes.”
Jackson argued that the decision “alarmingly” has “far-reaching implications,” writing that it “opens the floodgates to exactly the type of troubling election-related litigation the Court purportedly wants to avoid. For example, under the Court’s new harm-free candidate-standing rule, an electoral candidate who loses in a landslide can apparently still file a disruptive legal action in federal court after the election is over,” she wrote.
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Jordan Rubin
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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