Amicus Curiae Brief — Michael J. Bost, et al., Petitioners v. Illinois State Board of Elections, et al.

No. 24-568

IN THE

Supreme Court of the United States

_________

MICHAEL J. BOST, ET AL.,

Petitioners,

v.

ILLINOIS STATE BOARD OF ELECTIONS, ET AL.,

Respondents.

_________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

_________

BRIEF OF CENTER FOR ELECTION

CONFIDENCE, INC., AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

_________

JONATHON P. HAUENSCHILD

Counsel of Record

Center for Election Confidence, Inc.

4201 Wilson Blvd., Ste. 110-315

Arlington, VA 22203

(202) 441-5487

jhauenschild@electionconfidence.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES....................................... ii

IDENTITY AND INTERESTS OF AMICUS CURIAE

......................................................................................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................7

A. Review is Necessary to Correct the Seventh

Circuit’s Improper Standing Analysis ....................7

B. Past Election Margins Are No Guarantee of

Future Electoral Victory........................................ 13

C. The Seventh Circuit’s Decision Places

Candidates in a Catch-22, Challenge Too Early or

Too Late ................................................................. 15

D. The Seventh Circuit’s Decision Threatens

Political Party Organizational Standing .............. 17

CONCLUSION .......................................................... 20

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Celebrezze,

460 U.S. 780 (1983) .............................................. 16

Arizonans for Off. English v. Arizona,

520 U.S. 43 (1997) ................................................ 15

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) ................................................ 3

Clapper v. Amnesty Int’l, USA,

568 U.S. 398 (2013) .......................................... 9, 12

Coleman v. Miller,

307 U.S. 433, 460 (1939) .................................. 9, 16

Cook v. Gralike,

531 U.S. 510 (2001) .............................................. 16

Crawford v. Mario Cnty. Election Bd.,

553 U.S. 181 (2008) ................................................ 3

Davis v. FEC,

554 U.S. 724 (2008) .................................... 9, 10, 15

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) .............................................. 18

FEC v. Cruz,

596 U.S. 289 (2022) .............................................. 16

iii

Friends of the Earth, Inc. v. Laidlaw

Env't Servs. (TOC), Inc.,

528 U.S. 167 (2000) ................................................ 8

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) .............................................. 13

Horne v. Flores,

557 U.S. 433 (2009) ................................................ 7

Hunt v. Washington State Apple Advert.

Comm’n,

432 U.S. 333 (1977) .............................................. 18

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................ 7, 8

Parents Protecting Our Child., UA v.

Eau Claire Area Sch. Dist.,

604 U.S. ___ (2024) ................................................ 4

Powell v. McCormack,

395 U.S. 486 (1969) .............................................. 16

Raines v. Byrd,

521 U.S. 811 (1997) .......................................... 7, 10

Republican Nat’l Comm. v. Burgess,

No. 24-cv-198, 2024 WL 3445254 (D.

Nev. July 17, 2024) ................................................ 6

Republican Nat’l Comm. v. Wetzel,

120 F.4th 200 (5th Cir. 2024) ................................ 6

iv

Republican Party of Pa. v.

Degraffenreid,

___ U.S. ___, 141 S. Ct. 732 (2021) .................. 5, 17

Spokeo v. Robins,

578 U.S. 330 (2016) ................................................ 9

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ................................................ 9

Vill. of Arlington Heights v. Metro.

Hous. Dev. Corp.,

429 U.S. 252 (1977) .............................................. 18

Warth v. Seldin,

422 U.S. 490 (1975) .............................................. 18

Constitutional Provisions

U.S. Const. art. I, § 4 ................................................. 10

U.S. Const. art. II, § 1 ............................................... 10

U.S. Const. art. III, § 2 ................................................ 7

Statutes

10 Ill. Comp. Stat. 5/17-23 .......................................... 3

10 Ill. Comp. Stat. 5/17-23 ...................................... 3, 4

10 Ill. Comp. Stat. 5/19-10 .......................................... 3

10 Ill. Comp. Stat. 5/19A-60 ........................................ 3

10 Ill. Comp. Stat. 5/7-34 ............................................ 3

v

Other Authorities

2022 Midterms Look Back Series:

Successes in the 2022 Midterm

Election: Hearing before Subcomm.

on Elections of the H. Comm. on H.

Admin., 118th Cong. 54-105 (2023)..................... 11

California House Results 2024, NBC

News (Dec. 17, 2024),

https://www.nbcnews.com/politics/20

24-elections/california-house-results ................... 14

Commonwealth of Pennsylvania,

Election Results, 2018 General

Election (Official Returns),

https://www.electionreturns.pa.gov/

General/SummaryResults?ElectionI

D=63&ElectionType=G&IsActive=0

(last accessed Dec. 9, 2024).................................. 14

Commonwealth of Pennsylvania,

Election Results, 2024 General

Election (Official Returns),

https://www.electionreturns.pa.gov/

General/SummaryResults?ElectionI

D=63&ElectionType=G&IsActive=0

(last accessed Dec. 9, 2024).................................. 14

Democrats Have Won 40 of California's

52 U.S. House Seats, Politico (Nov.

26, 2022),

https://www.politico.com/2022election/results/california/house/ ......................... 14

vi

The Federalist 61 (Alexander Hamilton) ................. 11

Illinois House election results, Politico

(Dec. 17, 2024),

https://www.politico.com/2024election/results/illinois/house/ ............................. 19

Indiana Election 2024 Results, CNN

(Nov. 5, 2024),

https://www.cnn.com/election/2024/r

esults/indiana ................................................. 19, 20

Kamala Harris wins Illinois, Politico

(Dec. 17, 2024),

https://www.politico.com/2024election/results/illinois/ ........................................ 19

1

IDENTITY AND INTERESTS OF AMICUS

CURIAE1

Center for Election Confidence, Inc. (“CEC”) is a

non-profit organization that promotes ethics,

integrity, and professionalism in the electoral process.

CEC works to ensure that all citizens can vote freely

within an election system of reasonable procedures

that promote election integrity, prevent vote dilution

and disenfranchisement, and instill public confidence

in election systems and outcomes. To accomplish this,

CEC conducts, funds, and publishes research and

analysis regarding the effectiveness of current and

proposed election methods. CEC is a resource for

lawyers, journalists, policymakers, courts, and others

interested in the electoral process. CEC also

periodically engages in public-interest litigation to

uphold the rule of law and election integrity and files

amicus briefs in cases where its background,

expertise, and national perspective may illuminate

the issues under consideration. For example, CEC

(previously known as Lawyers Democracy Fund)

participated as amicus curiae in the U.S. Supreme

Court in Moore v. Harper, 600 U.S. 1 (2023), Allen v.

1 No counsel for a party authored this brief in whole or in part,

and no person other than the amicus and its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief.

Pursuant to S. Ct. Rule 37(2), the parties have been notified of

CEC’s intent to file this amicus in support of petitioners.

2

Milligan, 599 U.S. 1 (2023), and Ritter v. Migliori, 143

S. Ct. 297 (2022).

CEC finds the Seventh Circuit’s decision to dismiss

Congressman Bost’s complaint under a contrived

doctrine of standing troubling. Until 2020, candidates

enjoyed broad standing to challenge election laws that

required them to allocate resources, such as money

and time, differently.

Upholding the rule of law and election integrity

requires courts, at the very least, to follow this Court’s

historic standing jurisprudence with respect to

candidates. CEC’s interest, therefore, is helping this

Court to understand the gravity of the Seventh

Circuit’s decision in the context of broader election

law challenges.

SUMMARY OF ARGUMENT

Election results come and election results go. The

only thing constant, besides the litigation, is the

unpredictable nature of the results. The unpredictable

nature of the results, in turn, demands that

candidates play an important role in ensuring public

confidence in the results by observing the electoral

process. When a court, such as the Seventh Circuit,

declines to hear a case because the candidate lacks

standing, according to its judgment, “it was Plaintiffs’

choice to expend resources to avoid a hypothetical

3

future harm—an election defeat,” 2 it harms

candidates’ opportunities to build that confidence.

Public confidence in the electoral process

“encourages citizen participation in the democratic

process.” Crawford v. Mario Cnty. Election Bd., 553

U.S. 181, 197 (2008). When the electoral process

seems unfair, is hidden behind an opaque veil, or is

subject to potential fraud, public confidence is

diminished. E.g., Brnovich v. Democratic Nat’l

Comm., 594 U.S. 647, 672 (2021) (“Fraud can also

undermine public confidence in the fairness of

elections and the perceived legitimacy of the

announced decision.”). In Illinois, the law authorizes

candidates and political parties to appoint

pollwatchers in order to build confidence in the

electoral process. 10 Ill. Comp. Stat. 5/17-23(1)-(2)

(authorizing parties and candidates to “appoint two

pollwatchers per precinct”); id. 5/7-34(1)-(2) (same, for

primary elections); id. 5/19-10 (same, for observing

early voting procedures and vote by mail processing

and counting); id. 5/19A-60 (same, for early in person

voting). Where the office that a candidate seeks

encompasses multiple counties, such candidates are

entitled to appoint up to two pollwatchers per precinct

throughout the entirety of the relevant district. Id.

5/17-23(5). The pollwatchers themselves are entitled

to

observe all proceedings and view all

reasonably requested records relating to

2 Pet. App. 11a.

4

the conduct of the election . . . and to

station themselves in a position in the

voting room as will enable them to

observe the judges making the signature

comparison

between

the

voter

application and the voter registration

record card . . . . Pollwatchers may

challenge

for

cause

the

voting

qualifications of a person offering to vote

and may call to the attention of the

judges of election any incorrect

procedure or apparent violations of this

Code.

Id.

The Seventh Circuit’s discussion of standing

widely misses this Court’s jurisprudence by departing

from this Court’s jurisprudence and adding criteria.

Because the Seventh Circuit departed from this

Court’s historic jurisprudence, this case provides an

opportunity for the Court to reaffirm its nearly

century-old candidate standing doctrine and warn

District and Circuit Courts against “succumbing to

the temptation to use the doctrine of Article III

standing as a way of avoiding some particularly

contentious constitutional questions” and to properly

cabin Clapper v. Amnesty International, USA, 568

U.S. 398 (2013) to truly speculative injuries rather

than as an excuse for lower courts to avoid the merits

of a case. Parents Protecting Our Child., UA v. Eau

5

Claire Area Sch. Dist., 604 U.S. ___, 2 (2024) (Alito, J.,

dissental).3

Further, the Seventh Circuit’s decision places

candidates in the proverbial Catch-22: File too early

and risk District and Circuit Courts dismissing

perennial disputes on standing grounds or file too late

and risk those same courts dismissing disputes as

moot. Republican Party of Pa. v. Degraffenreid, ___

U.S. ___, 141 S. Ct. 732, 738-39 (2021) (Alito, J.,

dissental) (Questioning whether the case was truly

moot and noting that the parties brought the

challenge well before the election). When courts refuse

to hear cases filed well in advance of an election, they

invite the late challenges, which themselves are often

properly dismissed due to the lack of a record, the

pendency of an election, or the attempt to overturn an

otherwise narrow electoral result. The Court should

grant the Petition for Writ of Certiorari to clarify

further that candidates have standing to challenge

state election laws and practices they reasonably

expect will be in place during the next election cycle

and to encourage courts to hear the disputes, develop

robust records, and provide detailed constitutional

analysis without the looming pendency of an election.

See id. at 737 (Thomas, J., dissental) (“Because the

judicial system is not well suited to address these

kinds of questions in the short time period available

3 In both cases, the underlying courts heavily relied on Clapper

to establish the proposition that plaintiffs “cannot

manufacturer standing merely by inflicting harm on themselves

based on their fears of hypothetical future harm that is not

certainly impending.” See, e.g., Pet. App. 10a-11a.

6

immediately after an election, we ought to use

available cases outside that truncated context to

address these admittedly important questions. Here,

we have the opportunity to do so almost two years

before the next federal election cycle.”)

The Seventh Circuit altered criteria to the Court’s

traditional standing jurisprudence. When discussing

standing, the Supreme Court has never distinguished

between a candidate on the one hand or a typical,

noncandidate plaintiff on the other. That is to say, the

Court applies the same constitutional analysis to a

plaintiff whether it be a private citizen, corporation,

or candidate.

As Congressman Bost’s Petition raises only the

issue of standing, it will be unnecessary for this Court

to opine on the substantive challenge. Despite that,

the Court should be aware that challenges to

substantive election law expanding the definition of

election day are matriculating through the District

and Circuit Courts. Republican Nat’l Comm. v. Wetzel,

120 F.4th 200 (5th Cir. 2024) and Republican Nat’l

Comm. v. Burgess, No. 24-cv-198, 2024 WL 3445254

(D. Nev. July 17, 2024) (currently on appeal to the

U.S. Court of Appeals for the Ninth Circuit, see Court

of Appeals Docket No. 24-5071). This Court would,

thus, benefit from the Seventh Circuit’s record and

reasoned opinion should one of these other challenges

eventually ascend to this Court.

7

ARGUMENT

A. Review is Necessary to Correct the Seventh

Circuit’s Improper Standing Analysis

The Seventh Circuit is correct to say that courts

must “consider the threshold issue of standing—‘an

essential and unchanging part of the case-orcontroversy requirements of Article III.’” Horne v.

Flores, 557 U.S. 433, 445 (2009) (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992)); see also

U.S. Const. art. III, § 2. For a plaintiff to have

standing, he must have a “personal stake” in the case.

Raines v. Byrd, 521 U.S. 811, 819 (1997). For a

plaintiff to demonstrate standing, he must show that

(1) he suffered an injury in fact, which is concrete and

particularized,

rather

than

conjectural

or

hypothetical; (2) the injury is fairly traceable to the

challenged action of the defendant; and (3) the injury

must be likely, as opposed to merely speculative, and

redressable by a favorable decision. See Lujan, 504

U.S. at 560-561. The plaintiff bears the burden of

establishing standing and maintaining it throughout

the case. Id., 504 U.S. at 561.

As with many of this Court’s decisions, the primary

concern in this case is that of “injury in fact.” Citing

Clapper and Congressman Bost’s prior margin of

victory, the Seventh Circuit determined that he

lacked standing. See Pet. App. 10a-11a. 4 This both

“[I]t 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

4

8

misstates the standard for “injury in fact” and

misapplies Clapper.

Additionally, it is difficult to tell from the Circuit’s

analysis precisely what presumptions or standards it

applied when determining Congressman Bost lacked

standing. That is to say, the District and Circuit

Courts appear to have applied the wrong analytical

standard – applying the one required at the summary

judgment stage rather than the one for the pleading

stage. As noted in Lujan, courts should “presume that

general allegations embrace those specific facts that

are necessary to support the claim,” while during

summary judgment “the plaintiff can no longer rest on

such mere allegations, but must set forth by affidavit

or other evidence specific facts, which for purposes of

the summary judgment motion will be taken to be

true.” Lujan, 504 U.S. at 561 (internal citations and

quotations omitted); see also Friends of the Earth, Inc.

v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 198

(2000) (Scalia, J., dissenting) (“General allegations of

injury may suffice at the pleading stage, but at

summary judgment plaintiffs must set forth ‘specific

facts’ to support their claims.”). By substituting their

own interpretation of the plaintiffs’ injuries – namely

electoral defeat – rather than relying on the injuries

plaintiffs alleged – loss of money and time – the

to lose the election is speculative at best. Indeed, Congressman

Bost, for example, won the last election with seventy-five percent

of the vote.”

9

District and Circuit Courts clearly did not apply the

presumptions required at the pleading stage.

An injury-in-fact is one that is concrete. For an

injury to be concrete, in turn, it “must be de facto; that

is, it must actually exist.” Spokeo v. Robins, 578 U.S.

330, 340 (2016) (internal quotation marks omitted);

see also TransUnion LLC v. Ramirez, 594 U.S. 413,

424 (2021). Concrete does not mean, by implication,

that an injury is intangible. Spokeo, 578 U.S. at 340.

Instead, the conception of concreteness is to avoid

courts deciding “abstract, intellectual problems,”

Coleman v. Miller, 307 U.S. 433, 460 (1939)

(Frankfurter, J., dissenting), focusing instead on an

injury that “is certainly impending.” Clapper, 568 U.S.

at 409. When alleging both that federal law preempts

a state statute and that the state statute will cause

future pecuniary loss, the prospective and intangible

harm is “real, immediate, and direct.” Davis v. FEC,

554 U.S. 724, 734 (2008).

When determining whether a prospective,

intangible injury is concrete, history plays a critical

role. Because standing is part of the case-orcontroversy requirement, which itself is “grounded in

historical practice, it is instructive to consider

whether an alleged intangible harm has a close

relationship to a harm that has traditionally been

regarded as providing a basis for a lawsuit in English

or American courts.” Spokeo, 578 U.S. at 340-341.

Courts have long allowed parties to challenge the

constitutionality of statutes, so long as the

“prospective operation of a statute that presents a

10

realistic and impending threat of direct injury.”

Davis, 554 U.S. at 734 (citing Babbitt v. Farm

Workers, 442 U.S. 289, 298 (1979)). Similarly, courts

have recognized that the loss of money is a very

tangible, and actionable, harm and differentiate

between that and the loss of political power. E.g.,

Raines, 521 U.S. at 820-821.

To the Seventh Circuit, though, the injury

Congressman Bost is seeking to avoid is “an election

defeat.” This misstates the injuries alleged in the

complaint and the opinion itself contradicts this

assertion. The Complaint alleges that Illinois law

permits officials to count “vote-by-mail ballots

received up to 14 calendar days after the day of the

election[and] shall be counted as if cast and received

on or before Election Day,” and that even “vote-bymail ballots without postmarks shall be counted if

received up to 14 calendar days after Election Day if

the ballots are dated on or before election day.”5 This

is despite the fact that Congress, exercising its

constitutional authority, has established “the first

Tuesday after the first Monday in November of every

even-numbered year [as] election day for federal

elections.”6 According to the Complaint, among other

5 Pet. App. 84a.

6 Id. at 81a; see also U.S. Const. art. I, § 4. Indeed, naming a

uniform election day for presidential elections is within the

express purview of Congress. See U.S. Const. art. II, § 1, cl. 4.

Further, naming a uniform election day for congressional

elections is within the proper exercise of Congress’ limited

power under the Elections Clause. See U.S. Const. art. I, § 4, cl.

11

injuries alleged as a result of Illinois’s attempts to

extend Election Day, Congressman Bost must

determine “resources allocated to the post-election

certification process,” which itself means that he must

“spend money, devote time, and otherwise injuriously

rely on unlawful provisions of state law in organizing,

funding, and running [his] campaign[ ].”7

The decision, similarly, acknowledges “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)” and that the “challenged policy imposed

tangible monetary harms by forcing them to use

resources to contest ballots that arrived after Election

Day.”8

1; See also 2022 Midterms Look Back Series: Successes in the

2022 Midterm Election: Hearing before Subcomm. on Elections

of the H. Comm. on H. Admin., 118th Cong. 54-105 (2023)

(Submission for the Record, Rpt.: The Elections Clause: States’

Primary Constitutional Authority Over Elections, which

describes as appropriate the congressional exercise of Elections

Clause authority to ensure the Congress is populated properly

with Representatives from the States); The Federalist 61

(Alexander Hamilton) (quoted in Robert G. Natelson, The

Original Scope of the Congressional Power to Regulate

Elections, 13 U. Pa. J. Const. L. 1 (Nov. 2010) (Natelson notes

that Federalists and “[a]t least some Anti-Federalists” agreed

that “the [Elections ] Clause would enable Congress to fix

nationally-uniform election days [for congressional elections.]”

Id. at 33)).

7 Pet. App. 87a-89a.

8 Pet. App. 4a, 10a.

12

Only by altering the injuries alleged and

misapplying Clapper did the Seventh Circuit reach

the conclusion that the plaintiffs’ injuries were

speculative. Clapper itself is inapplicable here and

has been recently overused by lower courts to dismiss

disputes presenting difficult constitutional questions.

Clapper was a challenge to Foreign Intelligence

Surveillance Act (FISA) where the plaintiffs’ alleged

that their “communications will be acquired . . . at

some point in the future.” Clapper, 568 U.S. at 401.

Such allegations were very speculative because, in

part, the relevant law provided that “U.S. persons

cannot be targeted for surveillance” and the plaintiffs

“fail to offer any evidence that their communications

have been monitored.” Id. at 411. Further, FISA

“authorizes—but does not mandate or direct—the

surveillance that respondents fear, respondents’

allegations are necessarily conjectural.” Id. at 412

(emphasis original).

The injuries alleged, thus, were completely

speculative. The intelligence or federal law

enforcement apparatus may intercept calls. Those

entities may violate the Fourth Amendment. And the

plaintiffs may have their constitutional rights

violated by such violations. None of that is present in

this case. Illinois law, as described above, permits the

plaintiffs to send pollwatchers into precincts and

observe the electoral process to assist the state with

enhancing public confidence in elections. State law

also requires officials to receive and process ballots

received up to two weeks after Election Day. Federal

law establishes a single day for federal elections. The

13

plaintiffs allege they must spend additional

resources—money and time—exercising their rights

under state law to observe the electoral process during

the additional time. The Complaint says little to

nothing about electoral defeat. Instead, the plaintiffs’

averments that they must spend additional resources

is concrete and guaranteed to happen because of the

law. And the diversion of resources has long been

recognized as sufficiently concrete. See Havens Realty

Corp. v. Coleman, 455 U.S. 363 (1982).

Because the Seventh Circuit misapplied this

Court’s jurisprudence on standing, misinterpreted

Clapper, and added criteria to the standing analysis,

this Court should grant the Petition.

B. Past Election Margins Are No Guarantee of

Future Electoral Victory

The Seventh Circuit was wrong to change the

nature of injury alleged to find that the plaintiffs

lacked standing. Its decision to cite Congressman

Bost’s margin of victory is equally wrong. Several

candidates this year alone lost reelection when, in

previous years, they enjoyed comfortable margins of

victory. By effectively adding previous margins of

victory to the analysis for standing where a plaintiff

is a candidate, the Circuit fails to account for how the

electorate may change.

14

In 2018, for example, Senator Robert P. Casey, Jr.,

won reelection by 13.12 points, or 657,589 votes, 9

while in 2024, he lost reelection by just 0.22 percent

or 15,115 votes.10 Or, in a state with deadlines similar

to Illinois such as California, candidates who win with

clear margins one cycle may not in the next. For

example, in 2022, Rep. Mike Garcia won re-election by

6.4 points or 12,732 votes, Rep. Michelle Steel won by

4.8 points or 10,494 votes. 11 Both Rep. Garcia and

Rep. Steel lost their 2024 reelection bids. 12

The prior margin of victory for these candidates,

applying the Seventh Circuit’s rationale, would have

deprived all of them the opportunity to challenge state

election laws, had they elected to do so.

Prospectively, the Seventh Circuit’s decision

makes it harder for candidates and political parties –

as described below – to bring challenges to election

9 Commonwealth of Pennsylvania, Election Results, 2018

General Election (Official Returns),

https://www.electionreturns.pa.gov/General/SummaryResults?E

lectionID=63&ElectionType=G&IsActive=0 (last accessed Dec.

9, 2024).

10 Commonwealth of Pennsylvania, Election Results, 2024

General Election (Official Returns),

https://www.electionreturns.pa.gov/General/SummaryResults?E

lectionID=63&ElectionType=G&IsActive=0 (last accessed Dec.

9, 2024).

11 Democrats Have Won 40 of California’s 52 U.S. House Seats,

Politico (Nov. 26, 2022), https://www.politico.com/2022election/results/california/house/.

12 California House Results 2024, NBC News (Dec. 17, 2024),

https://www.nbcnews.com/politics/2024-elections/californiahouse-results.

15

laws unless those challenges are brought in the

immediate lead up to an election, which, in turn,

places candidates in the proverbial Catch-22 of

bringing such challenges too late under Purcell.13

C. The Seventh Circuit’s Decision Places

Candidates in a Catch-22, Challenge Too Early

or Too Late

The Seventh Circuit altered or added criteria to

the standing analysis: the margin of victory for

candidates and the timing of the challenge. As to the

first, this Court makes no distinction between a

candidate, or “regular” plaintiffs on the other. E.g.,

Davis, 554 U.S. at 724. As to the second, the decision

places candidates and parties in an impossible

situation – challenge too early and the case may be

dismissed as too speculative or challenge too late and

risk the courts finding the dispute moot.

Broadly, this Court has criticized circuits for

altering the standing analysis. That standing

analysis, as addressed earlier in these briefs, is best

explained in cases like TransUnion, Spokeo, Friends

of the Earth, Inc., Arizonans for Official English v.

Arizona, 14 and Lujan. TransUnion and Spokeo best

represent times when a Circuit, in these cases the

Ninth Circuit, altered this Court’s standing

jurisprudence apparently to achieve specific results.

In both cases, the Ninth Circuit found prospective

informational injuries were sufficiently concrete to

13 Purcell v. Gonzalez, 549 U.S. 1 (2006).

14 520 U.S. 43 (1997).

16

proceed. And in both cases, this Court either

disagreed or partially disagreed.

The Court has also addressed standing for both

candidates and members of Congress. Both categories

have long enjoyed standing to challenge laws that

negatively impact them. E.g., FEC v. Cruz, 596 U.S.

289, 296-98 (2022); Cook v. Gralike, 531 U.S. 510

(2001); 15 Anderson v. Celebrezze, 460 U.S. 780

(1983);16 Powell v. McCormack, 395 U.S. 486 (1969);

Coleman, 307 U.S. at 438-43. The types of injuries

they allege include monetary, with a potential loss of

salary as exemplified in Powell, to a loss of

institutional authority in Coleman. 17 The instant

challenge is both one alleging a loss of time and money

and challenging, under various provisions, the

constitutionality of Illinois election law. As a

candidate, Congressman Bost has suffered monetary

loss because of a potentially preempted or otherwise

unconstitutional law.

For the Seventh Circuit, the remoteness of the

injury was another factor for dismissing based on a

lack of standing. The Circuit noted that the 2024

15 Permitting a candidate to challenge Missouri’s constitutional

amendment requiring candidates for Congress to “use all of his

or her delegated powers to pass the Congressional Term Limits

Amendment.” Cook, 531 U.S. at 514.

16 The Court assumed Anderson as a candidate for President

had standing and the decision, in part, addressed the

constitutionality of Ohio’s ballot access laws.

17 See Powell, 395 U.S. at 498 (salary); Coleman, 307 U.S. at

438 (loss of institutional authority due to an alleged

unconstitutional action).

17

general election, at the time was “months away and

the voting process [had] not even started, making any

threat of an inaccurate vote tally” speculative, at least

to “a certainly impending injury.” Pet. App. 15a. Yet,

as recognized by multiple Justices, courts should

ensure that challenges to election law matriculate

through the lower courts on something other than an

expedited schedule. Degraffenreid, 141 S. Ct. at 737

(Thomas, J., dissental); id. at 738 (Alito, J., dissental).

Where a candidate challenges a state election law,

especially arguing about the constitutionality of such

a law, courts should recognize that a candidate has

standing and welcome the opportunity to opine on the

topic outside the immediacy of a pending election. In

the case of Illinois law, the statutes requiring officials

to receive and count absentee ballots received up to

two weeks after an election will be applicable in the

next primary and general elections for federal office.

Congressman Bost’s allocation of resources will still

be an issue, regardless of his prior margins of victory.

D. The Seventh Circuit’s Decision Threatens

Political Party Organizational Standing

Though neither political party is a participant in

this suit, this Court ought to review the Circuit

Court’s decision as it also threatens organizational

standing. If allowed to stand, courts within the

Seventh Circuit could dismiss suits brought by

political parties challenging election laws under this

case’s standing analysis. First, as stated above,

Illinois Law provides both candidates and parties the

18

right to appoint pollwatchers. Second, the law

Congressman Bost is challenging also causes parties

to expend additional resources to ensure confidence in

the electoral process. When bringing suits, political

parties can either allege the law injures them – that

they have a personal stake in the electoral process –

or that they represent their candidate members. The

Seventh Circuit’s decision threatens both types of

standing.

When a political party alleges direct standing, the

standing analysis as described throughout this brief

applies. Political parties, when suing on behalf of

themselves, have standing “to sue on their own behalf

for injuries they have sustained.” FDA v. All. for

Hippocratic Med., 602 U.S. 367, 369 (2024) (internal

citations omitted). Similarly, political parties must

allege “such a personal stake in the outcome of the

controversy as to warrant [their] invocation of federal

court jurisdiction.” Vill. of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 260-61 (1977) (cleaned

up).

Political parties also have standing to represent

their members. The standing derives from the concept

that associations “may have standing” to represent

their members even if those associations themselves

have not been directly injured. Warth v. Seldin, 422

U.S. 490, 511 (1975). All associations need is a

member who would “otherwise have standing to sue

in [his or her] own right.” Hunt v. Washington State

Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).

19

As to direct standing, if this Court does not grant

the petition, political parties would lose the ability to

challenge election laws impacting their allocation of

resources. If the Seventh Circuit refused to recognize

Congressman Bost’s standing as a candidate, claiming

any allocation of resources is speculative based on his

prior margin of victory, the same aversions would

apply to political parties. If a party is not competitive

in a jurisdiction, like Illinois or Indiana, they would

lack standing.

In Illinois, Democrats tend to win by large margins

statewide and Republicans by wide margins in the

south. Vice President Kamala Harris won the state by

11 percentage points, or over 611,000 votes. 18 The

closest House race in the state was in the 6th

Congressional District, where Democrat Sean Casten

defeated Republican challenger Niki Conforti by over

eight points, or nearly 30,000 votes or the 17th

Congressional District where Democrat Eric Sorenson

defeated Republican challenger Joe McGraw by

similar margins.19

By the same token, Democrats would likely lose

their ability to challenge election laws in Indiana,

with President-elect Trump winning that state by 19

points, or 556,774 votes.20 Senator-elect Banks won by

18 Kamala Harris wins Illinois, Politico (Dec. 17, 2024),

https://www.politico.com/2024-election/results/illinois/.

19 Illinois House election results, Politico (Dec. 17, 2024),

https://www.politico.com/2024-election/results/illinois/house/.

20 Indiana Election 2024 Results, CNN (Nov. 5, 2024),

https://www.cnn.com/election/2024/results/indiana.

20

a similar margin and the closest House race, House

District 1, where incumbent Frank Mrvan defeated

the Republican challenger by 8.5 points or over 27,000

votes.21

The argument against associational standing is

much clearer, if the Seventh Circuit’s decision stands:

If Congressman Bost, as a candidate and member of

the Republican Party lacks standing, and associations

can only assert the rights or injuries of members, the

Republican Party also lacks standing.

The results for direct and associational standing

are untenable. This Court should grant the Petition to

correct the decision, ensuring that candidates and

political parties have the opportunity to challenge

election laws that lead to direct harm.

CONCLUSION

The Seventh Circuit’s decision misstates and

misapplies

this

Court’s

Art.

III

standing

jurisprudence. Candidates who have suffered

monetary loss and have been forced to allocate

resources differently as a result of an allegedly

unconstitutional or preempted law have, historically,

had standing to sue. The Seventh Circuit, though,

applied the wrong analytical challenge and,

unilaterally, reframed Petitioners’ injuries to avoid

reaching the merits of the dispute.

21 Id.

21

Because of the departure from this Court’s

jurisprudence and the impact the Seventh Circuit’s

decision will have on political party organizational

standing, this Court should grant the Petition for Writ

of Certiorari.

Respectfully submitted,

Jonathon P. Hauenschild

Counsel of Record

Center for Election Confidence, Inc.

4201 Wilson Blvd., Ste. 110-315

Arlington, VA 22203

(202) 441-5487

jhauenschild@electionconfidence.org