'When Electoral Processes Break the Law, Candidates Suffer'
The Supreme Court's 7-2 ruling on standing is a game-changer, especially for states that flout election laws.
In a ruling that evokes many 2020 election-challenge cases that never got a hearing on the merits, states that flout election laws can be challenged by candidates, per the Supreme Court’s ruling on “standing.”
That’s one of the big takeaways from the 7-2 ruling yesterday.
It hearkens to the 2020 election when more than 60 election-law challenges never got a hearing because they were dismissed for “lack of standing.”
As the ruling explains, Illinois congressional candidate Michael Bost and two other political candidates filed a lawsuit claiming that Illinois law allowing mail-in ballots for 14 days after they are postmarked on election day conflicts with federal statute.
They principally contended that doing so conflicts with 2 U. S. C. §7 and 3 U. S. C. §1, which set election day as the Tuesday following the first Monday in November. The district court dismissed the case, and the Seventh Circuit affirmed on the ground that petitioners lacked standing.
The Supreme Court reversed the Seventh Circuit decision and now the issue about accepting ballots after election day moves onward in lower courts.
Election-security groups are cheering, with good reason.
Tom Fitton, founder of election integrity organization Judicial Watch, which brought the first lawsuit in the case in 2022, called the ruling “the most important Supreme Court election law ruling in a generation.”
“Too many courts have denied candidates the standing to challenge unlawful election rules such as the outrageous ballots that arrive after Election Day. American citizens concerned about election integrity should celebrate this Supreme Court victory. I thank Judicial Watch’s legion of supporters and our election law team that helped achieve this historic result.”
After Wednesday’s ruling, the election-law landscape appears more even as we gird for midterm election battles.
Some key quotes from the ruling:
“Win or lose, candidates suffer when the process departs from the law.”
“Candidates also have an interest in a fair process. Candidates seek to represent the people, and their interest in that prize cannot be severed from their interest in the electoral process.”
“As a candidate for office, Congressman Bost has standing to challenge the rules that govern the counting of votes in his election.”
“Those who spend untold time and resources seeking to claim the right to voice the will of the people have ‘an undeniably different—and more particularized—interest’ in knowing what that will is.”
“The counting of unlawful votes—or discarding of lawful ones—erodes public confidence in election results and the elected representative.”
“Rules that undermine the integrity of the electoral process also undermine the winner’s political legitimacy. ... ‘[R]eputational harms’ are classic Article III injuries.”
Perhaps most important, the court said:
“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.”
“Premising standing on a candidate’s risk of election loss or failure to achieve a certain vote threshold would also convert Article III judges into political prognosticators.”
“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.”
Justice Ketanji Brown Jackson’s dissent (with Justice Sonia Sotomayor joining) asserted the court was shifting from its “longstanding actual-injury rule to a presumption that certain kinds of plaintiffs are sufficiently aggrieved to satisfy Article III standing, regardless of whether they will experience any particularized harm.”
She was evoking a kind of judicial status quo, especially since 2020 when election officials such as secretaries of state made wholesale changes to existing laws — with zero authority — and courts held that no harm was shown before voting started. After the election? No standing.
“Candidates should definitely have standing to challenge unlawful election rules that affect how votes are counted—because the rules of the game matter before the outcome can be trusted,” the Election Integrity Network said in a statement.
“This decision restores a basic check on unlawful election practices,” said election attorney Cleta Mitchell, the founder of EIN.
Take the case of the “re-voted” ballots in Wisconsin allowing people to effectively “take back” their mail-in ballots. Election integrity law firm Restoring Integrity and Trust in Elections (RITE) challenged it.
Derek Lyons, an advisor to RITE, which filed friend-of-the-court briefs on the Supreme Court case, told Fox News:
“We were able to win that [Wisconsin] case on the grounds that once a ballot is put into the mail, received by the election officials, that’s the end of that person’s vote. There’s no fishing ballots back out and putting them back in, etc. Which obviously creates a risk of errors and double voting and all sorts of other problems. And so they tried to kick us out on standing. We were able to defeat that and secure that victory in Wisconsin,” he said.
Lefties led by uber-Democrat and election law denier Marc Elias predicted (or perhaps promised) a flood of lawsuits, noting in a statement on Democracy Docket.
“After the 2020 election, Trump and his allies filed over 60 lawsuits challenging the results. Many were dismissed quickly for lack of standing. Under this new standard, similar post-election challenges would likely survive that first procedural hurdle, potentially leading to long, protracted delays in the certification of election results, which can further erode public trust.”
His statement misses a key point. If election officials try to flout the law, even nibble at its edges, the high court’s ruling is clear: Candidates have standing to challenge whether election laws are being followed, or broken.
One of the groups that filed briefs in support of the case, Center for Election Confidence (CEC), emphasized:
Candidates and political parties have a direct interest in ensuring election integrity, regardless of whether they can prove a regulation would alter the outcome, and that a “avoiding defeat” rule disregards the Court’s precedent that standing “does not depend on the merits of a claim.”
By requiring candidates to show substantial risk of election loss, the Seventh Circuit’s standard would force judges to forecast elections when determining whether a candidate has standing to seek judicial review of the rules governing their election.
The Supreme Court ruling effectively reverses the Seventh Circuit’s “avoiding defeat” standard. Now the case is headed back to lower courts for the mail-in ballot deadline issues. We are staying tuned. #