One Step Closer to "Standing?"

SCOTUS hears oral arguments in a "best chance" case

By Elizabeth Dallam-Ayoub, MFEI Guest Contributor

October 13, 2025

On Wednesday, October 8, the Supreme Court of the United States (SCOTUS) heard oral arguments in Bost et al v. Illinois State Board of Elections et al (No. 1:22-cv-02754), a case with the potential to increase judges’ willingness to hear the kind of election integrity-related complaints that often have been dismissed for lack of “standing.”

In 2022, U.S. Congressman Michael Bost (R-IL), filed suit against the Illinois State Board of Elections, challenging its new, mail-in ballot procedure and saying it violates federal law establishing an Election Day.

On July 6, 2023, Judge John F. Kness of the U.S. District Court for the Northern District of Illinois dismissed Bost’s complaint for lack of standing.  Bost appealed the dismissal to the United States Supreme Court (SCOTUS) which granted certiorari to hear the case.

In a written statement, Michigan Fair Elections Founder and Chair Patrice Johnson explained what’s at stake.

“In these oral arguments, the focus is entirely on whether Bost has standing to sue for violation of federal law establishing Election Day. Standing, that’s the U.S. Supreme Court’s sole concern in this stage of the case. If SCOTUS green-lights Bost’s standing, it could force lower courts to consider whether there has been a violation of federal law. But until Bost gets past the issue of standing, the other concern is moot.”

Where’s the Harm?

The Illinois law allows ballots — postmarked by Election Day but arriving up to 14 days later— to be counted. Bost is claiming the new 14-day rule forces all candidates to run their campaigns differently than they ever have before. He says the new rule forces every candidate to plan for the possibility of maintaining continued vigilance through the post-Election Day, 14-day, mail-in ballot period. It is that harm — the harm of every candidate having to plan their campaigns differently to accommodate the 14-day mail-in ballot period — that allows Bost to claim he has standing. Plaintiffs must prove a substantial risk of harm, in order to have standing.

Attorney Paul Clement

In his opening remarks to SCOTUS, Paul Clement, the attorney representing Bost, stated candidates for federal office suffer “a unique, concrete, and particularized” harm from Illinois’ new law. Clement argued Bost and all the other candidates would have to divert and spend additional campaign monies after Election Day.

In response to a question by Justice Clarence Thomas, Attorney Clement stated the harm is not necessarily defined by an “ultimate win or loss,” but the issue is that candidates whose names are on the ballot are the ones who suffer the most harm from this 14-day extension.

Justice Clarence Thomas asked, “Is there a difference in a tight race?” to which Clement said that no, a candidate is a direct object of the new Illinois rules; that any candidate suffers the probability of risk.

Chief Justice Roberts

Chief Justice Roberts piped in with questioning along this line: “What if there isn’t a risk, if a candidate has won 10 of 12 races.  Does it make a difference?” Clement responded: “No, it doesn’t make a difference. Each election a candidate suffers a credible threat.” 

Justice Roberts followed up: “What if there is no credible threat?”  Clement parried, “Even if the threat is 1 of 100, the candidate is still forced to play the game.” He likened it to the game of Russian Roulette wherein there is a threat of harm each time someone plays the game.    

Justice Sotomayer then asked, “’It is always a risk because it might happen’ has never been enough for standing.  Where is the electoral disadvantage.”  Clement replied, “I am going to push back on your premise a bit. Candidates only are the ones who are the direct objects of the Illinois rule.”

Justice Kavanaugh asked Clement to tease out exactly how the financing of a campaign plays out. In reply, Clement stated that the new rule necessitates that a candidate keep staff together for two more weeks, and that if an election were to end on Election Day, candidates would spend their money differently.  Clement analogized: “a runner has a different running strategy if he is competing in a one-half mile run or a one-mile run.” Comparing it to how a candidate runs campaign financing, Clement said, “It changes how you run the race.”

Attorney Clement closed in his rebuttal by stating that even the State of Illinois in its paperwork, at the end of the night on Election Day, stated to the citizens of the state, “Don’t get too excited. There are still fourteen more days.”

The innuendo was clear. At the end of the night on Election Day, no candidate should take for granted either a victory or defeat. This statement shows that a candidate’s reputation and finances can be eroded during those fourteen days. In other words, as attorney Clement stated, “A candidate is not a bystander; a candidate has a special interest.” That is enough, he claimed, to satisfy the substantial harm bar which a candidate must demonstrate for standing.

The State of Illinois’ Response

Representing the State of Illinois was Jane Elinor Notz of the Illinois Attorney General’s office. She argued the possibility of something happening or of someone “wanting to run up the score”  [of election numbers] has never been enough to confer standing upon someone. 

She also pointed out in Bost’s original declaration he used words such as “if” and “may,” which showed harm was not substantial, that it was merely speculative. 

Justice Thomas asked Notz, “How close must an election then be for substantial harm?” Notz replied, “This Court has never attached a metric.”

A round of further questions returned to the race analogy. 

The Court asked, “Let’s say eight runners qualify . .  . show up . . . are told they have to run 105 meters instead of 100.  Can any show injury?”

Notz answered: “Was any person disadvantaged by this?  They would have to show harm?”

The Court: “Would I have to show that I lose steam at 97 meters?”

Notz: “That is only plausibility.”

Court:  “Is any runner able to challenge?”

Notz: “I have trained for 100, 105 puts me at substantial risk is not enough.” 

Optimism about a Favorable Decision

“Clement did an incredible job, but this is a very difficult legal issue. This case is, so far, our best shot at breaking through the barrier of ‘standing,'” said Johnson.

According to Newsweek and the Associated Press, a decision is expected in June 2026.

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Elizabeth Dallam-Ayoub formerly practiced law in the state of Michigan and is a guest contributor on legal issues for Michigan Fair Elections Institute.