During the October 8, 2025, oral argument in Bost v. Illinois State Board of Elections, the Supreme Court spent ninety minutes on a case ostensibly about election integrity, yet never once touched the merits of the election law itself. The case presents a challenge to Illinois’s practice of counting mail-in ballots that arrive up to 14 days after Election Day. But the day’s entire discussion fixated on a crucial, preliminary question: Does a political candidate have Article III standing to challenge an election rule, or must they first prove to a court that they are at genuine risk of losing the election?
The argument revealed a Court deeply fractured on the “injury” a candidate suffers but broadly united against a standing test that would force federal judges to become election prognosticators. The petitioner, represented by Paul D. Clement, offered three theories of standing: a “pocketbook injury” (the 14-day window costs his campaign money), a “competitive injury” (the rule could reduce his margin of victory or cost him the election), and a broad “candidate standing” theory (the counting of unlawful ballots in his specific race is, itself, the injury). The justices’ reactions clustered around the severe practical problems with an alternative.
The central vulnerability for Illinois, argued by Jane E. Notz, was its insistence that a candidate must demonstrate a “substantial risk of harm”—a standard that justices immediately translated into “a substantial risk of losing.” This proposition met with sharp, sustained skepticism. Chief Justice John Roberts labeled the implications of such a rule a “potential disaster,” forcing courts to litigate challenges not months in advance but at the “most fraught time” right before an election. Justice Neil Gorsuch found the idea “unseemly,” questioning how a court could plausibly assess a candidate’s chance of success without influencing the very election it was reviewing. Justice Brett Kavanaugh mocked the idea of relying on polls (“Are polls always reliable?”) or campaign experts (“they can be wrong”). As Mr. Clement summarized in rebuttal, this standard would require an “Article III equivalent of the Cook Report,” a role the justices seemed determined to avoid.
The pragmatic flip side of this “prognostication problem” was the “nightmare scenario” of not allowing pre-election challenges. Justice Kavanaugh drove this point relentlessly, asking what the remedy would be if a challenge like this were funneled into a post-election context. “What’s the remedy?” he pressed. “Do you throw out those votes?” He later quoted Justice Scalia, noting that “Count first and rule upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires.” This practical concern—that the only alternative to pre-election review is post-election chaos—formed the most powerful argument for finding standing now.
However, a significant bloc of justices expressed deep skepticism of the petitioner’s specific claims. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson pushed back hard against the idea that a candidate suffers any cognizable harm from a rule they cannot prove will cause them to lose. Justice Jackson characterized the claim of “unlawful ballots” as a “generalized grievance” that any voter could make, not a harm particular to the candidate. Justice Kagan suggested the petitioner’s broadest theory “really does just take out the injury requirement entirely.” Both she and Justice Sotomayor noted that the regulation is technically of voters—who get more time to mail ballots—not a direct regulation of the candidate himself.
This clash revealed two potential “off-ramps” for the Court to find standing without adopting either the “disastrous” prognostication model or the “generalized” candidate-as-bystander theory. The first, and narrowest, was the “pocketbook injury.” Justices Samuel Alito and Kavanaugh found this argument “straightforward” and “obvious.” If the rule extends the counting period, the campaign must reasonably spend more money on staff and poll watchers. That, in their view, is a classic, concrete monetary harm sufficient for Article III.
The second, broader “off-ramp” was articulated by Justice Kagan. She criticized the petitioner’s complaint as “threadbare” and “created in order to test a ‘I don’t have to show injury at all’ theory.” She noted that political parties like the RNC and DNC “sue all the time” and easily establish standing by simply alleging a plausible “electoral disadvantage,” without needing polls or predictions. The implication was that the petitioner’s real problem was his own weak complaint, not a flawed legal standard.
The Court appears highly unlikely to adopt Illinois’s standard, which would require federal judges to become political oddsmakers. While the justices are clearly divided on why a candidate is injured, the argument’s dynamics suggest a majority will find a way to grant standing. Whether they do so on the narrow “obvious” ground of a pocketbook injury, or by endorsing Justice Kagan’s middle-ground “electoral disadvantage” standard, the Court seems poised to affirm that a candidate is, as Mr. Clement concluded, “not a bystander in his or her own election.”
This post is informational only and does not constitute legal advice. Consult a qualified attorney regarding your specific circumstances. A human author reviewed this content for accuracy, though it was researched and drafted with AI assistance.
