Eye On Illinois: Supreme Court to consider whether Bost has the right to sue over mail-in voting law

Mike Bost will – again – have his day in court.

Bost, the Republican Congressman from Murphysboro, has been since May 2022 a lead plaintiff in a lawsuit challenging Illinois’ mail-in voting law that allows election officials to count ballots up to 14 days following the election. On Monday, the U.S. Supreme Court agreed to review whether Bost and two former presidential electors have the standing to try the case in federal court.

When the U.S. Seventh Circuit Court of Appeals ruled on the matter in August (tinyurl.com/7thCircuitMail), the majority held that if legal harms did occur, they applied to everyone on the federal ballot and not just three candidates.

In a dissent, Judge Michael Scudder laid the blueprint for how SCOTUS might eventually remand the matter to federal district court. Bost chose “to recruit, train, assign and coordinate poll watchers and keep his headquarters open for an additional two weeks [which] took substantial time, money and resources,” Scudder wrote, establishing a personal stake sufficient to warrant further hearing of his complaint.

In that way, Scudder reasoned, Bost was unlike other candidates who didn’t make such investments. More importantly, he’s just like other people who are allowed to sue governments with allegations of personal effort to protect constitutional rights unrelated to how a specific law is enforced.

That argument also cuts to the heart of an issue not yet fully explored during protracted wrangling over standing: evidence that the challenged law unfairly cost any Illinoisans an electoral victory.

By the time Bost sued, he’d already secured multiple Congressional terms under the contested rules. He’s won reelection twice while his complaint worked its way through the system, and has given no indication he won’t seek a seventh term in 2026.

It could be argued – perhaps fruitlessly – that winners don’t get to claim a contest was unfair. Scudder disagrees:

“Past is not prologue for political candidates, including an incumbent like Congressman Bost. In no way is any outcome guaranteed in November. … A candidate’s past margin of victory says nothing about the relative weight of mail-in ballots received after Election Day – and thus the strategic importance of extended poll-watching operations. Even if Congressman Bost had won reelection by 99% in 2022, he would have been more than justified in monitoring the count after Election Day if a significant enough portion of ballots remained outstanding at that point.”

Bost and the other Republicans who control Congress could enact federal rules that level the playing fields nationwide, but Bost has repeatedly endorsed the Constitutional right of states to regulate elections, calling it “a fundamental principle of federalism.”

Absent such action, and regardless of the ultimate outcome of his claim, lawsuits like Bost’s will keep federal judges busy in perpetuity.

• Scott T. Holland writes about state government issues for Shaw Local News Network. He can be reached at sholland@shawmedia.com.