Michael Bost v. Illinois State Board of Elections

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2644

MICHAEL J. BOST, et al.,

Plaintiffs-Appellants,

v.

ILLINOIS STATE BOARD OF ELECTIONS and BERNADETTE

MATTHEWS, in her capacity as the Executive Director of the

Illinois State Board of Elections,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:22-cv-02754 — John F. Kness, Judge.

____________________

ARGUED MARCH 28, 2024 — DECIDED AUGUST 21, 2024

____________________

Before BRENNAN, SCUDDER, and LEE, Circuit Judges.

LEE, Circuit Judge. In Illinois, voters can cast their ballots

by mail in any election. And election officials can receive and

count these ballots for up to two weeks after the date of the

election so long as the ballots are postmarked or certified by

that date. Plaintiffs, comprised of Illinois voters and political

candidates, challenged this procedure, arguing that it

2 No. 23-2644

impermissibly expands the time in which residents can vote.

The district court dismissed their claims, ruling that Plaintiffs

lacked standing to sue. The court also rejected the claims on

the merits for good measure. Because Plaintiffs have not al-

leged an adequate injury, we agree that they lack standing to

bring this suit and affirm the district court’s dismissal of the

case on jurisdictional grounds.

I. Background

A. Legal Background

James Madison observed that the regulation of elections in

the United States is “a task of peculiar delicacy” that requires

involvement from both Congress and state legislatures.

5 Documentary History of the Constitution of the United

States of America 441–43 (1905). The Elections Clause of the

Constitution provides that “[t]he Times, Places and Manner

of holding Elections for Senators and Representatives, shall be

prescribed in each State by the Legislature thereof; but the

Congress may at any time by Law make or alter such Regula-

tions.” U.S. Const. art. I, § 4, cl. 1.

This clause is a “default provision,” meaning it “invests

the States with the responsibility for the mechanics of con-

gressional elections, but only so far as Congress declines to

preempt state legislative choices.” Foster v. Love, 522 U.S. 67,

69 (1997). As long as a state’s election procedures do not con-

flict with federal provisions, states “are given, and in fact ex-

ercise a wide discretion in the formulation of a system for the

choice by the people of representatives in Congress.” United

States v. Classic, 313 U.S. 299, 311 (1941).

Two federal statutes are relevant here. The first establishes

the “day of the election” for selecting members of the House

No. 23-2644 3

of Representatives as the “Tuesday next after the 1st Monday

in November, in every even numbered year” (“Election

Day”). 2 U.S.C. § 7. The second provides that electors of the

President and Vice President are to “be appointed, in each

State, on election day, in accordance with the laws of the State

enacted prior to election day.” 3 U.S.C. § 1.

Illinois has enacted a statutory scheme that governs its

federal and state elections. See 10 ILCS 5/1-1 et seq. Relevant

here, Illinois allows voters to cast their ballots by mail in any

election held in the state if the ballot is postmarked on or be-

fore the day of the election. Id. §§ 5/19-1; 5/19-8(c). If the

mailed ballot bears no postmark, the voter must have signed

and dated a certification accompanying the ballot within the

same timeframe. Id. § 5/19-8(c). Moreover, any mail-in ballot

that meets these requirements must be received by election

authorities “before the close of the period for counting provi-

sional ballots,” id., which is defined as fourteen calendar days

from the election date. Id. § 5/18A-15(a). 1 These provisions

create a two-week period after Election Day where Illinois of-

ficials can receive and count valid ballots that are postmarked

or certified on or before Election Day.

B. Procedural History

Each Plaintiff in this case is a registered voter in Illinois

and a candidate for political office. Michael Bost is a multi-

term member of the United States House of Representatives.

Laura Pollatrini and Susan Sweeney are political activists who

served as presidential electors during the 2020 election. In

May 2022, they filed this suit against the Illinois State Board

1 For convenience’s sake, we will refer to these statutes collectively as

the Illinois “ballot receipt procedure.”

4 No. 23-2644

of Elections (“Board”) and Bernadette Matthews in her official

capacity as the Executive Director of the Board (collectively,

“Defendants”).

Plaintiffs allege that the Illinois ballot receipt procedure

impermissibly extends Election Day, violating 2 U.S.C. § 7

and 3 U.S.C. § 1. As they see it, the fourteen-day post-election

period for the receipt and counting of mail-in ballots increases

the number of total votes cast in Illinois by counting “un-

timely” ballots. This in turn, Plaintiffs assert, dilutes their own

votes in violation of the First and Fourteenth Amendments to

the Constitution. Plaintiffs also claim that the ballot receipt

procedure forces them to spend additional time and money

operating their campaign organizations beyond Election Day

(for example, to oversee the counting of mail-in ballots),

which impermissibly impairs their constitutionally protected

right to run for office.

Defendants filed a motion, asking the district court to dis-

miss the complaint under Federal Rule of Civil Procedure

12(b)(1) and 12(b)(6). They argued, among other things, that

Plaintiffs lacked Article III standing to challenge the Illinois

ballot receipt procedure, that Plaintiffs failed to adequately

state a violation of federal law or the Constitution, and that

the Board was entitled to sovereign immunity under the Elev-

enth Amendment. Plaintiffs subsequently moved for partial

summary judgment under Rule 56 on the claims that the bal-

lot receipt procedure violated their rights to vote and stand

for office. In the end, the district court granted Defendants’

motion to dismiss, concluding that Plaintiffs lacked standing.

The court also determined that Plaintiffs had failed to state a

legally viable claim. This appeal followed.

No. 23-2644 5

II. Analysis

Because the Constitution gives federal courts the power

only to resolve “Cases” and “Controversies,” our initial in-

quiry is whether Plaintiffs have standing to challenge the bal-

lot receipt procedure. U.S. Const. art. III, § 2. We review

de novo the district court’s ruling that they did not. See Perry v.

Sheahan, 222 F.3d 309, 313 (7th Cir. 2000).

To establish the “irreducible constitutional minimum” of

standing, a plaintiff must allege she suffered (1) an injury in

fact, (2) that is fairly traceable to the defendant, and (3) that is

likely to be redressed by a favorable judicial decision. Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). At the pleading

stage, a plaintiff must allege facts demonstrating each of these

elements. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). We

take these factual allegations as true and draw reasonable in-

ferences in the favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

This case hinges on whether Plaintiffs adequately allege a

sufficient injury in fact. An injury in fact is one that is “con-

crete and particularized” and “actual or imminent, not con-

jectural or hypothetical.” Lujan, 504 U.S. at 560. To be consid-

ered “concrete,” an injury must be “real, and not abstract,”

meaning it “must actually exist.” Spokeo, 578 U.S. at 340. A

concrete harm is usually physical or monetary but can also

include various intangible harms. See TransUnion v. Ramirez,

594 U.S. 413, 425 (2021).

For an injury to be “particularized,” it must affect the

plaintiff “in a personal and individual way.” Spokeo, 578 U.S.

at 339. As the Supreme Court has explained, such an injury

must be personal, individual, and distinct, not general and

6 No. 23-2644

undifferentiated. See, e.g., Whitmore v. Arkansas, 495 U.S. 149,

155 (1990) (“The complainant must allege an injury to himself

that is distinct and palpable.”) (internal citations omitted);

United States v. Richardson, 418 U.S. 166, 176–78 (1974) (declin-

ing to find standing for a “generalized grievance” when it is

“plainly undifferentiated and common to all members of the

public”) (internal citations omitted).

Plaintiffs argue they were injured by the Illinois ballot re-

ceipt procedure both as voters in Illinois and as political can-

didates. We consider each of these propositions in turn.

A. Standing as Voters

Plaintiffs first assert that the strength of their votes will be

diluted in the upcoming election by the many purportedly

“untimely” mail-in ballots that state election officials will re-

ceive and count after Election Day. In their view, the late-ar-

riving ballots will diminish the extent to which their ballots

help choose the victor in the election. They recount that, in

2020, approximately 4.4% of the ballots cast in Illinois were

received after Election Day, which diluted the value of their

own votes.

But, even if we were to accept Plaintiffs’ premise that in-

clusion of these ballots would cause vote dilution, their votes

would be diluted in the same way that every other vote cast

in Illinois prior to Election Day would be diluted. Thus, to the

extent Plaintiffs would suffer any injury, it would be in a gen-

eralized manner and not “personal and individual” to Plain-

tiffs, as the Supreme Court requires. Spokeo, 578 U.S. at 339

(“For an injury to be particularized, it must affect the plaintiff

in a personal and individual way.”) (internal quotation and

citation omitted); see also Lujan, 504 U.S. at 575 (noting that a

No. 23-2644 7

generalized grievance is one that is “undifferentiated and

common to all members of the public”). Indeed, at its core,

Plaintiffs’ complaint is that Illinois is disobeying federal elec-

tion law. But an injury to an individual’s right to have the gov-

ernment follow the law, without more, is a generalized griev-

ance that cannot support standing “no matter how sincere.”

Hollingsworth v. Perry, 570 U.S. 693, 706 (2013); see Lance v. Coff-

man, 549 U.S. 437, 442 (2007) (noting that injury alleged by

plaintiffs, who claim that Colorado constitutional provision

violated the Election Clause, “is precisely the kind of undif-

ferentiated, generalized grievance about the conduct of gov-

ernment that we have refused to countenance in the past”).

By way of contrast, consider racial gerrymandering cases.

There, the Supreme Court has held that voters in a racially

gerrymandered district have standing because they are “per-

sonally subject to a racial classification.” Ala. Legis. Black Cau-

cus v. Alabama, 575 U.S. 254, 263 (2015) (cleaned up). Because

these voters have the strength of their votes diminished com-

pared to voters of another race, the harm is sufficiently indi-

vidualized.

Malapportionment cases are another example. There, vot-

ers have standing to challenge the apportionment of congres-

sional seats because their votes are diminished compared to

voters in other congressional districts. See Baker v. Carr, 369

U.S. 186, 206 (1962). As the Supreme Court observed, the

plaintiffs in Baker were “in a position of constitutionally un-

justifiable inequality vis-à-vis voters in irrationally favored”

groups. Id. at 207–08. Here, Plaintiffs have not and will not

suffer the same kind of unequal treatment recognized in Baker

and Alabama Legislative Black Caucus.

8 No. 23-2644

The Eleventh Circuit arrived at the same conclusion in a

similar case involving statewide voting procedures. In Wood

v. Raffensperger, the plaintiff challenged Florida’s recount pro-

cedures, contending that they diluted his vote by allowing

“unlawful” ballots. 981 F.3d 1307, 1314 (11th Cir. 2020). But

the claimant had no standing, the Eleventh Circuit concluded,

because “vote dilution in this context is a paradigmatic gen-

eralized grievance that cannot support standing.” Id. (cleaned

up).

This rationale also informed the Supreme Court’s holding

in Gill v. Whitford, 585 U.S. 48, 64 (2018). That case involved a

challenge to a redistricting plan in Wisconsin. In determining

that the plaintiffs lacked standing, the Supreme Court distin-

guished the allegations in Baker, 369 U.S. 186, and Reynolds v.

Sims, 377 U.S. 533, 561 (1964), noting that “the injuries giving

rise to those claims were individual and personal in nature,

because the claims were brought by voters who alleged facts

showing disadvantage to themselves as individuals.” Gill, 585

U.S. at 67. Just as in Gill, Plaintiffs here only claim a general-

ized grievance affecting all Illinois voters; therefore, they have

not alleged a sufficiently concrete and particularized injury in

fact to support Article III standing.

B. Standing as Candidates

Plaintiffs next contend that they suffered tangible and in-

tangible harms as political candidates. As an initial matter, the

parties dispute whether, in reviewing the district court’s grant

of Defendants’ motion to dismiss, we can consider the affida-

vits Plaintiffs filed detailing the harms they purportedly suf-

fered due to the ballot receipt procedure. Plaintiffs believe we

can, relying on United States ex rel. Hanna v. City of Chicago, 834

F.3d 775, 779 (7th Cir. 2016). There, we remarked that “[t]he

No. 23-2644 9

party defending the adequacy of a complaint may point to

facts in a brief or affidavit ‘in order to show that there is a state

of facts within the scope of the complaint that if proved (a

matter for trial) would entitle him to judgment.’” Id. (quoting

Early v. Bankers Life & Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992)).

But Hanna and Early dealt with motions under Rule 12(b)(6)

for failure to state a claim. Here, we are considering jurisdic-

tion under Rule 12(b)(1), and the Supreme Court has unequiv-

ocally held that “[w]here, as here, a case is at the pleading

stage, the plaintiff,” as the party invoking federal jurisdiction,

bears the burden to “clearly allege facts demonstrating each

element” of standing. Spokeo, 578 U.S. at 338 (cleaned up).

Be that as it may, even with their affidavits, Plaintiffs can-

not establish the injury in fact necessary for Article III stand-

ing. Plaintiffs say that the challenged policy imposed tangible

monetary harms by forcing them to use resources to contest

ballots that arrived after Election Day. For example, Con-

gressman Bost attests that he must continue to fund his cam-

paign for two additional weeks after Election Day to contest

any objectionable ballots. Furthermore, he needs to send poll

watchers to each of the thirty-four counties in his district to

monitor the counting of the votes after Election Day to ensure

that any discrepancies are cured. In Plaintiffs’ view, the

money and organization required to facilitate this operation

is a tangible harm sufficient to confer standing.

We disagree. Recall that, to confer Article III standing, a

plaintiff’s injury must not only be “concrete and particular-

ized” but also “actual or imminent.” Lujan, 504 U.S. at 560.

The latter requirement for standing “ensure[s] that the alleged

injury is not too speculative for Article III purposes.” Id. at 564

n.2. Thus, when a claimant premises standing on a future

10 No. 23-2644

harm, the harm must be more than just “possible”—the alleg-

edly threatened injury must be “certainly impending.”

Whitmore, 495 U.S. at 158.

The Supreme Court’s holding in Clapper v. Amnesty Inter-

national, USA, 568 U.S. 398 (2013), is instructive. There, the

plaintiffs challenged certain amendments to the Foreign Intel-

ligence Surveillance Act that allowed government surveil-

lance of communications to and from persons in foreign coun-

tries under certain circumstances. To establish standing, the

plaintiffs argued that the law required them to undertake

costly measures to ensure the confidentiality of legitimate

communications with persons abroad to avoid detection. The

Court was unconvinced, finding such injuries too speculative:

Respondents’ contention that they have stand-

ing because they incurred certain costs as a rea-

sonable reaction to a risk of harm is unavail-

ing—because the harm respondents seek to

avoid is not certainly impending. In other

words, respondents cannot manufacture stand-

ing merely by inflicting harm on themselves

based on their fears of hypothetical future harm

that is not certainly impending.

Id. at 416.

In much the same way, the Illinois ballot receipt procedure

does not impose a “certainly impending” injury on Plaintiffs.

Rather, it was Plaintiffs’ choice to expend resources to avoid a

hypothetical future harm—an election defeat. But whether

the counting of ballots received after Election Day would

cause them to lose the election is speculative at best. Indeed,

Congressman Bost, for example, won the last election with

No. 23-2644 11

seventy-five percent of the vote. See Ill. State Bd. of Elections,

Election Results, 2022 General Election, https://www.elec-

tions.il.gov/electionoperations/ElectionVoteTotals.aspx. 2

And Plaintiffs cannot manufacture standing by choosing to

spend money to mitigate such conjectural risks.

Resisting this conclusion, Plaintiffs contend that being

compelled to expend resources as a result of the Illinois ballot

receipt procedures is in itself sufficient for Article III standing.

For this proposition, they cite two cases—Krislov v. Renour,

226 F.3d 851 (7th Cir. 2000), and Libertarian Party of Ill. v.

Scholz, 872 F.3d 518 (7th Cir. 2017). Neither is helpful.

In Krislov, we considered a challenge to an Illinois law that

required candidates to collect a certain number of signatures

to appear on the ballot. 226 F.3d at 856. This regulation man-

dated that the signatures had to be collected by voters who

lived in the district where the election took place. Id. We de-

termined that a candidate had standing to challenge the con-

stitutionality of the law when he used significant campaign

resources to collect the requisite number of signatures after

some of the signatures were initially collected by individuals

who lived outside of the district. Id. at 857–58.

In Scholz, we held that a political party had standing to

challenge a law that required the party to field candidates for

2 We take judicial notice of the official election results from the Illinois

State Board of Elections website. See Fed. R. Evid. 201(b)(2), (d) (explaining

that courts may take judicial notice, “at any stage of the proceeding,” of a

fact “not subject to reasonable dispute because it ... can be accurately and

readily determined from sources whose accuracy cannot reasonably be

questioned”); see, e.g., Mont. Green Party v. Jacobsen, 17 F.4th 919, 927 (9th

Cir. 2021) (taking judicial notice of official election results from the Mon-

tana Department of State website).

12 No. 23-2644

every office in the political subdivision in which the party

wished to compete. 872 F.3d at 523. In doing so, we observed

that the law imposed a “burdensome condition” on the Liber-

tarian Party and that the full-slate requirement stood as an

“ongoing obstacle” to ballot access. Id. at 522–23.

Both cases are readily distinguishable—the laws at issue

there imposed a direct affirmative obligation on the candi-

dates or political parties. By contrast, here, Plaintiffs are not

spending resources to comply with the Illinois ballot receipt

procedure or to satisfy some obligation it imposes on them.

Rather, they are electing to undertake expenditures to insure

against a result that may or may not come. Such expenditures

are not “fairly traceable” to the Illinois ballot receipt proce-

dure. Clapper, 568 U.S. at 416.

Undeterred, Plaintiffs also argue that the ballot receipt

procedure imposes an intangible “competitive injury.” This

theory posits that allowing votes to be received and counted

after Election Day could decrease their margin of victory,

which, in turn, could impact their reputations and decrease

their fundraising. We have recognized similar types of inju-

ries involving politicians in other circumstances. See, e.g., Fu-

lani v. Hogsett, 917 F.2d 1028, 1030 (7th Cir. 1990) (holding that

a third party and its candidates faced the injury of “increased

competition” when the defendants allegedly improperly

placed major-party candidates on the ballot). The problem is

that Plaintiffs do not (and cannot) allege that the majority of

the votes that will be received and counted after Election Day

will break against them, only highlighting the speculative na-

ture of the purported harm.

Finally, Plaintiffs contend that they have an interest in en-

suring that the final official vote tally reflects only legally

No. 23-2644 13

valid votes. In support, they cite Carson v. Simon, 978 F.3d

1051, 1056 (8th Cir. 2020). There, the plaintiffs, who had been

nominated as electors in the 2020 presidential election, chal-

lenged a state court consent decree that required the Minne-

sota Secretary of State to receive and count for up to five days

after Election Day absentee ballots that were postmarked on

or before election day. The Eighth Circuit heard the appeal six

days before the presidential election and well after voters had

begun receiving their absentee ballots. The court found that

the two electors had standing to sue, reasoning that “[a]n in-

accurate vote tally is a concrete and particularized injury to

candidates.” Id. at 1058.

Upon first blush, we question whether the Eighth Circuit’s

brief treatment of this issue without citation to any authority

is consistent with the Supreme Court’s holding in Lance. See

Carson, 978 F.3d at 1063 (Kelly, J., dissenting) (noting that the

claimed injury “appears to be ‘precisely the kind of undiffer-

entiated, generalized grievance about the conduct of govern-

ment’ that the Supreme Court has long considered inadequate

for standing”) (quoting Lance, 549 U.S. at 442). But, even if

consistent with Lance, we find the facts in Carson markedly

different from those here.

In Carson, over one million voters had already requested

mail-in ballots for the presidential election as of September 29,

2020. 978 F.3d at 1056. Given that there were only 3,588,299

preregistered voters in Minnesota at the time, whether and

how the absentee ballots were counted would likely have had

a material effect in “ensuring that the final vote tally accu-

rately reflects the legally valid votes cast.” Id. at 1058; see Fed.

R. Evid. 201(b)(2), (d); Off. of the Minn. Sec. of State, 2020 Elec-

tion Statistics, https://www.sos.state.mn.us/elections-

14 No. 23-2644

voting/election-results/2020/2020-general-election-re-

sults/2020-election-statistics. By contrast, here, the election is

months away and the voting process has not even started,

making any threat of an inaccurate vote tally far more specu-

lative than in Carson. So again, Plaintiffs have failed to allege

a certainly impending injury.

III. Conclusion

Because Plaintiffs do not have standing to challenge the

Illinois ballot receipt procedure, we AFFIRM the district

court’s dismissal of the case for lack of jurisdiction.

No. 23-2644 15

SCUDDER, Circuit Judge, dissenting in part. I join my col-

leagues in rejecting the plaintiffs’ voter-dilution and compet-

itive-injury theories of standing. I also agree that plaintiffs

Laura Pollatrini and Susan Sweeney have failed to adequately

explain how Illinois’s ballot-receipt procedure would tangi-

bly harm them as candidates. In my view, however, the same

cannot be said for Congressman Michael Bost. Because Illi-

nois’s extended deadline for receiving mail-in ballots will in-

crease Bost’s campaign costs this November—a fact that gives

Bost a concrete stake in the resolution of this lawsuit—I re-

spectfully dissent.

I

Michael Bost has run successfully in 15 electoral races in

Illinois—first as a longstanding member of the Illinois House

of Representatives and then as a U.S. Representative of House

District 12. Like many candidates, Congressman Bost dis-

patches poll watchers on Election Day to monitor the count-

ing of ballots at each precinct in his district and report any

irregularities. Bost has used watchers in past elections and in-

tends to do the same in 2024.

In 2013 Illinois extended its deadline before which mail-in

ballots must be received. The new law directed state officials

to count any mail-in ballot postmarked by Election Day and

received up to fourteen days later. This change in law had an

immediate impact on candidates’ election-monitoring opera-

tions. To ensure that all mail-in ballots were accurately tallied,

Congressman Bost had to recruit, train, assign, and coordi-

nate poll watchers and keep his headquarters open for an ad-

ditional two weeks. This took substantial time, money, and

resources, as Bost explained in his complaint and sworn dec-

laration.

16 No. 23-2644

In my view, the costs Congressman Bost will incur to mon-

itor ballots after Election Day gives him “a personal stake in

th[is] dispute” and a basis to proceed in federal court. FDA v.

Alliance for Hippocratic Medicine, 602 U.S. 367, 379 (2024) (in-

ternal quotation marks omitted). Campaign expenses readily

qualify as both “concrete” and “particularized”—the first two

prongs of Article III standing. See TransUnion LLC v. Ramirez,

594 U.S. 413, 424–25 (2021) (emphasizing that tangible mone-

tary harms are quintessential “concrete injuries”); Mack v. Re-

surgent Cap. Servs., L.P., 70 F.4th 395, 406 (7th Cir. 2023)

(“[M]oney damages are almost always found to be concrete

harm.”); see also Trump v. Wisconsin Elections Comm’n, 983

F.3d 919, 924 (7th Cir. 2020) (“An inaccurate vote tally is a con-

crete and particularized injury to candidates.” (quoting Car-

son v. Simon, 978 F.3d 1051, 1058 (8th Cir. 2020))).

The monitoring costs are also “imminent.” Congressman

Bost has declared, in no uncertain terms, that he will send poll

watchers to monitor vote processing and counting for two

weeks after Election Day this November. As night follows

day, he will incur campaign expenses to do so. Political cam-

paigns cost money, including in the form of staffing; none of

this is free. The guaranteed prospect of higher campaign costs

is more than just a “possible future injury.” Clapper v. Amnesty

Intern. USA, 568 U.S. 398, 409 (2013) (cleaned up). Such costs

are “certainly impending.” Id.

Congressman Bost’s increased monitoring expenses are

also “fairly traceable” to Illinois’s ballot-receipt procedure

and “redressable by a favorable ruling.” See Monsanto Co.

Geerston Seed Farms, 561 U.S. 139, 149 (2010); see also Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). The only reason

he continues to monitor polls after Election Day is because

No. 23-2644 17

Illinois law allows ballots to be received and counted. Before

Illinois decided to accept and count such ballots, he had no

need for such extended operations. Bost’s decision to con-

tinue running his campaign for two weeks after Election Day

is thus a direct response to Illinois’s decision to extend its

deadline for mail-in ballots. We should not hesitate to hold

that Congressman Bost meets all the requirements of Arti-

cle III standing.

II

Resisting this conclusion, the Panel majority describes

Bost’s costs as somehow entirely self-inflicted. Nothing in Il-

linois law, the Panel emphasizes, forces Bost to monitor the

ballot count after Election Day. According to the Panel, Bost’s

protracted poll watching is not a strategic necessity but in-

stead an overreaction to a hypothetical possibility that is

“speculative at best”: electoral defeat due to ballots received

after Election Day that were improperly counted. Op. at 11.

Such conjectural risks, in the majority’s view, are not suffi-

ciently “imminent” to confer standing. See Clapper, 568 U.S. at

409. Nor, the Panel reasons, are the expected costs of precau-

tionary measures taken to avoid those risks. See Op. at 11–12.

I disagree. For starters, the Panel goes too far in saying that

the risk of ballots swaying the upcoming District 12 election

after Election Day is only speculative. Nothing in Congress-

man Bost’s complaint or sworn declaration supports that

view. Perhaps realizing the shortfall in its reasoning, the ma-

jority opinion resorts to taking judicial notice of the fact that

Congressman Bost won reelection last cycle by a vast margin.

See Op. 11 & n.3. But past is not prologue for political candi-

dates, including an incumbent like Congressman Bost. In no

way is any outcome guaranteed in November.

18 No. 23-2644

Regardless, a candidate’s past margin of victory says noth-

ing 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 jus-

tified in monitoring the count after Election Day if a signifi-

cant enough portion of ballots remained outstanding at that

point. He is far from alone in believing that the risk of ballot

irregularities justifies funding poll-watching operations. In

recent years, poll watching has become commonplace among

major candidates, with all 50 states permitting campaign rep-

resentatives to monitor vote tallies. See National Conference

of State Legislatures, Poll Watchers and Challengers (May 28,

2024). In light of this reality, federal courts should be wary of

labelling such practices speculative, particularly when in-

cluded in the longstanding and successful election strategy of

a sitting member of Congress.

In characterizing Congressman Bost’s poll-watching strat-

egy as anchored in speculation, the Panel also fails to accept

his factual allegations as true for purposes of evaluating

standing at the motion-to-dismiss phase. See Ne. Fla. Chapter

of Associated Gen. Contractors of Am. v. City of Jacksonville, 508

U.S. 656, 668–69 (1993). The Panel acknowledges this principle

in theory, asserting that Bost would lack standing even if all

the claims in his complaint and sworn affidavit were true. See

Op. at 5, 10. In practice, however, the Panel disregards several

claims made by Bost that directly undermine its conclusions.

Congressman Bost has asserted, for instance, that the number

of ballots received after Election Day has increased consist-

ently every election, and that “many of these late-arriving bal-

lots have discrepancies (e.g., insufficient information, missing

signatures, dates, or postmarks) that need to be resolved.”

No. 23-2644 19

Those statements undercut the Panel’s view that the need for

extended monitoring is purely speculative. At this phase of

litigation, we must credit the former.

The Panel decision also suffers from a deeper flaw. Even if

we assume that Congressman Bost’s concern about delayed

ballots altering the course of his election is speculative, that

alone should not bar his lawsuit. Plaintiffs who take precau-

tionary measures to avoid speculative harms are ubiquitous

in federal courts. Consider, for instance, people seeking to

purchase a firearm for self-defense. By doing so, they seek to

take a precautionary measure to mitigate a risk of harm (an

act of violence). That risk is entirely speculative and may

never materialize. But even so, courts have overwhelmingly

held that prospective gun owners have standing to challenge

government policies that prevent, restrict, or otherwise tax the

preventative measure they seek to take. See, e.g., Parker v. Dis-

trict of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007), aff'd sub

nom., District of Columbia v. Heller, 554 U.S. 570 (2008) (holding

that it is “not a new proposition” that a plaintiff had standing

to challenge the denial of a gun licensing permit). By dismiss-

ing Bost’s expected campaign costs as a self-imposed, preven-

tative measure designed to avoid a speculative harm, the

Panel fails to see this as a straightforward application of set-

tled principles of standing.

Where the majority opinion most misses the mark is in

viewing this case as on all-fours with Supreme Court’s 2013

decision in Clapper v. Amnesty International, 568 U.S. 398. There

the Court declined to enjoin provisions of the Foreign Intelli-

gence Surveillance Act authorizing the surveillance of phone

conversations with persons outside the United States. See id.

at 401–02. The Court concluded that the plaintiffs (attorneys,

20 No. 23-2644

human-rights advocates, and NGOs) lacked standing because

they had no reason to believe that the government would “im-

minently” target their specific phone conversations under the

Act. See id. at 412. Because any risk of enforcement was purely

speculative, the Court concluded that the preventative costs

that the plaintiffs had undertaken to avoid potential surveil-

lance did not constitute an “injury in fact” that was “fairly

traceable” to the Act. See id. at 410–12. Plaintiffs, the Court

concluded, “cannot manufacture standing by choosing to

make expenditures based on hypothetical future harm that is

not certainly impending.” Id. at 402.

The majority concludes that Bost is seeking to do what

Clapper prohibited: transform a purely speculative injury into

an actual one by taking costly measures in an attempt to pre-

vent it. Clapper and its progeny teach that when the very ap-

plication of a challenged government restriction to the plain-

tiffs is uncertain, preventative measures taken to avoid that

application cannot create standing. See id. at 402; see also

Murthy v. Missouri, 144 S. Ct. 1972, 1994–96 (2024) (holding

that plaintiffs lacked standing to challenge government ac-

tions that allegedly encouraged social-media censorship be-

cause it was “no more than conjecture” that the plaintiffs

would be subject to government-induced content moderation

(internal quotation marks omitted)).

But Congressman Bost’s claim is distinct. In Clapper, the

only reason the plaintiffs had for incurring costs was to guard

against the specter of a surveillance action that may never

come. See FEC v. Cruz, 596 U.S. 289, 297 (2022) (clarifying that

the “problem” that Clapper addressed “was that the [ plain-

tiffs] could not show that they had been or were likely to be

subjected to th[e] policy in any event”). Here, however,

No. 23-2644 21

Congressman Bost’s poll-monitoring efforts are not aimed at

shielding against the speculative possibility of government

action. In direct contrast to Clapper, the application of the chal-

lenged government restriction in this case is a near certainty.

There will be an election this November, Congressman Bost

will incur staffing costs to monitor the full and complete ballot

count, and Illinois law will require that that count extend for

an additional two weeks after Election Day.

What is speculative in Bost’s case is not the application of

the challenged statute but a risk unrelated to its enforcement:

the risk of ballot irregularities swaying an election. But Clap-

per is fully consistent with accepting at face value a plaintiff’s

judgment that the risk of some external harm unrelated to en-

forcement warrants mitigation. When the government creates

obstacles to such mitigation efforts—here, as in the gun exam-

ple and countless others—plaintiffs have standing to chal-

lenge them in federal court.

Congressman Bost has asserted injuries sufficient to confer

Article III standing by alleging that his longstanding election-

monitoring efforts will incur extra financial costs this Novem-

ber due to Illinois’s extended ballot-receipt deadline. As a sit-

ting member of Congress in the midst of an ongoing reelec-

tion campaign, he is nothing close to a “mere bystander” to

the upcoming election or the allegation at the heart of this

lawsuit. See Alliance for Hippocratic Medicine, 602 U.S. at 379.

He is an active stakeholder who ought to be permitted to raise

his claim in federal court.