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

Supreme Court briefDec 23, 2024

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No. 24-568

IN THE

Supreme Court of the United States

MICHAEL J. BOST, ET AL.,

Petitioners,

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 the Public Interest Legal Foundation

as Amicus Curiae in Support of Petitioners

J. CHRISTIAN ADAMS

Counsel of Record

PUBLIC INTEREST LEGAL FOUNDATION

107 S. West St., Ste. 700

Alexandria, VA 22314

(703) 745-5870

adams@publicinterestlegal.org

Table of Contents

Table of Authorities .................................................. ii

Interests of Amicus Curiae ........................................ 1

Summary of the Argument ........................................ 1

Argument.................................................................... 2

The Purcell principle presents unique

challenges to the standing analysis in

election administration cases, and

clarification is needed on how the two

doctrines work together……………………..2

II.

This case presents an ideal vehicle to

provide clarity on the Purcell principle’s

intersection with the doctrine of

standing……………………………………….7

Conclusion .................................................................. 8

Table of Authorities

Cases

Anderson v. Celebrezze,

460 U.S. 780 (1983) ............................................. 4

Bost v. Illinois State Bd. of Elections,

114 F.4th 634 (7th Cir. 2024) ............................. 5

Bush v. Gore,

531 U.S. 98 (2000) ............................................... 4

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ............................................. 2

Democratic Nat’l Comm. v. Wis. State

Legislature, 141 S. Ct. 28 (2020) ..................... 4,5

Fed. Election Comm’n v. Cruz,

596 U.S. 289 (2022) ............................................. 4

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ...................................... 1,2,3

Merrill v. Milligan,

142 S. Ct. 879 (2022)..................................... 4,5,6

Moore v. Ogilvie,

394 U.S. 814 (1969) ............................................. 4

Purcell v. Gonzalez,

549 U.S. 1 (2006) ............................................. 1,4

iii

Raines v. Byrd,

521 U.S. 811 (1997)............................................. 2

Republican Nat’l Comm. v. Democratic Nat’l

Comm., 589 U.S. 423 (2020) ............................... 4

Republican Party of Pennsylvania v.

Degraffenreid, 141 S. Ct. 732 (2021) .................. 7

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ............................................. 3

Constitutions and Statutes

U.S. CONST. art. III, § 2 ........................................ 1,2

Other Authorities

Casey P. Schmidt, Disrupting Election Day:

Reconsidering the Purcell Principle as a

Federalism Doctrine, 110 VA. L. REV. 1493

(2024) .................................................................. 6

Steven J. Mulroy, Baby and Bathwater:

Standing in Election Cases after 2020, 126

DICK. L. REV. 9 (2021) ........................................ 3

S. Ct. R. 37.2 ............................................................ 1

INTERESTS OF AMICUS CURIAE1

The Public Interest Legal Foundation, Inc.

(“Foundation”) is a non-partisan, public interest

501(c)(3) organization whose mission includes

working to protect the fundamental right of citizens

to vote and preserving election integrity across the

country. The Foundation has sought to advance the

public’s interest by protecting the federalist

arrangement in the Constitution regarding elections,

including in a case involving the same central issue

as here.

SUMMARY OF ARGUMENT

This case presents the opportunity for this

Court to clarify conflicting doctrines of standing and

the Purcell principle. The former requires there to be

an active case or controversy with redressability in

order for a federal court to have jurisdiction. See U.S.

CONST. art. III, § 2; Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-561 (1992). The latter encourages

federal courts to refrain from altering or interfering

with a state’s election rules and procedures on the eve

of an election. See Purcell v. Gonzalez, 549 U.S. 1

(2006) (per curiam). Thus, litigants and courts in

election cases are left to decipher when they have

standing to bring a case – if plaintiffs bring the case

too early, there is no live controversy and they do not

1 Amicus curiae notified counsel of record for all of the parties of

its intention to file an amicus brief at least 10 days prior to the

deadline to file the brief in accordance with S. Ct. R. 37.2. No

counsel for a party authored this brief in whole or in part, nor

did any person or entity, other than amicus curiae and its

counsel, make a monetary contribution intended to fund the

preparation or submission of this brief.

have standing, but if they bring it too late, the Purcell

principle will prevent them from getting immediate

redress from the injury. This dilemma ignores the

reality of election campaigns. A bright line on when

litigants have standing in election cases dealing with

election administration is vitally important for

litigants who bring these cases, and the trial courts

who must hear them.

ARGUMENT

The Purcell principle presents unique

challenges to the standing analysis in

election administration cases, and

clarification is needed on how the two

doctrines work together.

When the doctrines of standing and the Purcell

principle conflict, litigants are left in a Catch-22 as to

when to file their lawsuit, as the Petitioners here

discovered. The doctrine of standing originates from

the U.S. Constitution, which limits federal court

jurisdiction to actual “cases” or “controversies.” U.S.

CONST. art. III, § 2. Limiting the category of litigants

who can bring a lawsuit serves separation of powers

principles by preventing “the judicial process from

being used to usurp the powers of the political

branches.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 408 (2013). “No principle is more fundamental

to the judiciary’s proper role in our system of

government than the constitutional limitation of

federal-court jurisdiction to actual cases or

controversies.” Raines v. Byrd, 521 U.S. 811, 818

(1997).

The “irreducible constitutional minimum of

standing contains three elements.” Lujan, 504 U.S.

at 560. “The plaintiff must have (1) suffered an injury

in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Spokeo,

Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised

(May 24, 2016) (citing Lujan, 504 U.S. at 560-561).

“To establish injury in fact, a plaintiff must show that

he or she suffered ‘an invasion of a legally protected

interest’ that is ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’”

Spokeo, 578 U.S. at 339 (citing Lujan, 504 U.S. at

560). To establish redressability, the plaintiff must

show that a favorable outcome of the case would

remedy the alleged injury. See Lujan, 504 U.S. at

568-571.

The injury in fact element often makes the

standing analysis in election cases challenging

because the alleged grievance stems from an

application of an election process that affects the

entire voting public of that jurisdiction. This court

has “consistently held that a plaintiff raising only a

generally available grievance about government—

claiming only harm to his and every citizen’s interest

in proper application of the Constitution and laws,

and seeking relief that no more directly and tangibly

benefits him than it does the public at large—does not

state an Article III case or controversy.” Lujan, 504

U.S. at 573–74. In election cases it is often difficult

“to identify parties that are uniquely and concretely

harmed by violations of fair election principles than it

is in the normal way we think of standing harms.”

Steven J. Mulroy, Baby & Bathwater: Standing in

Election Cases After 2020, 126 DICK. L. REV. 9, 14

(2021).

Political candidates, however, have traditionally

been able to prove standing because of the particular

and distinct injury they incur due to election

administration laws. See, e.g., Moore v. Ogilvie, 394

U.S. 814 (1969) (deciding a case brought by

candidates for the offices of electors of President and

Vice President of the United States from Illinois);

Anderson v. Celebrezze, 460 U.S. 780 (1983) (deciding

a case brought by a candidate for the office of

President of the United States); Bush v. Gore, 531

U.S. 98 (2000) (deciding a case brought by a candidate

for the office of President of the United States); Fed.

Election Comm’n v. Cruz, 596 U.S. 289, 313 (2022)

(deciding a case brought by a candidate regarding a

campaign finance law).

The Purcell principle, however, presents a

complicating factor to the standing analysis. The

Purcell principle stems from the case, Purcell v.

Gonzalez, 549 U.S, 196 (2008) (per curiam). It

espouses that federal courts refrain from altering or

interfering with a state’s election administration

rules and procedures in the period close to an election.

See Republican Nat’l Comm. v. Democratic Nat’l

Comm., 589 U.S. 423, 424 (2020) (per curiam); Merrill

v. Milligan, 142 S. Ct. 879, 880 (2022) (Kavanaugh,

J., concurring). One stated reason for the judicial

restraint is to avoid confusing voters and election

administrators right before an election. See

Democratic Nat’l Comm. v. Wis. State Legislature, 141

S. Ct. 28, 30-31 (2020) (Kavanaugh, J., concurring).

Indeed, the Purcell principle “reflects a bedrock tenet

of election law: When an election is close at hand, the

rules of the road must be clear and settled. Late

judicial tinkering with election laws can lead to

disruption and to unanticipated and unfair

consequences for candidates, political parties, and

voters, among others.” Merrill v. Milligan, 142 S. Ct.

at 880–81 (Kavanaugh, J., concurring). Additionally,

the principle “discourages last-minute litigation and

instead encourages litigants to bring any substantial

challenges to election rules ahead of time, in the

ordinary litigation process.” Wis. State Legis., 141 S.

Ct. at 31 (Kavanaugh, J. concurring).

In the case at bar, the Seventh Circuit found that

“Plaintiffs cannot establish the injury in fact

necessary for Article III standing.” Bost v. Illinois

State Bd. of Elections, 114 F.4th 634, 641 (7th Cir.

2024). According to the Court of Appeals opinion, the

plaintiff political candidate alleged a pecuniary injury

in having to: (a) fund his campaign for two additional

weeks after Election Day in order to contest any

objectionable ballots, and; (b) organize poll watchers

to monitor the counting of the votes after Election

Day. Bost, 114 F.4th at 642. However, the Seventh

Circuit found this argument unconvincing, claiming,

among other things, that an injury must be

“imminent” and “certainly impending,” and because

“the Illinois ballot receipt procedure does not impose

a ‘certainly impending’ injury on Plaintiffs,” it does

not satisfy the injury element of standing. Bost, 114

F.4th at 642. Basically, because the election was

months away, Plaintiffs’ injury was not imminent and

therefore not sufficient.

This

case

demonstrates

the

seemingly

incompatible doctrines of standing and the Purcell

principle. If a political candidate brings his case to

the court too early, he will not have an injury

sufficient for standing. If he waits too close to an

election, the court will refrain from granting any

immediate relief. If Bost had waited until the two

weeks after Election Day to bring his case, when

Illinois was still receiving ballots, his injury would

have been concrete, imminent, and impending. But,

he would not have been able to get an injunction due

to the Purcell principle. This dichotomy of the two

legal doctrines presents absurd motivations for

plaintiffs. While the Purcell principle was adopted to

reduce

confusion

for

voters

and

election

administrators and to incentivize litigants to file

early and go through the regular litigation process,

the instant case does the opposite by only confusing

litigants and forcing them to file on the eve of an

election.

Litigants need guidance on how to maneuver the

injury element of standing while abiding by the

incentives of the Purcell principle. This Court has

admitted it “has not yet had [the] occasion to fully

spell out all of [the Purcell principle’s] contours,”

Merrill v. Milligan, 142 S. Ct. at 881 (Kavanaugh, J.,

concurring). Amicus suggests that this case is the

Court’s opportunity to flesh out those contours of the

Purcell principle. Questions abound about the limits

of the principle, with a recent law review article even

charting the cases where the Purcell principle is

applied in an effort to determine how close to an

election is too close to get an injunction. See Casey P.

Schmidt, Disrupting Election Day: Reconsidering the

Purcell Principle as a Federalism Doctrine, 110 VA. L.

REV. 1493, 1540 (2024). Additionally, while this court

has hinted at possible guidance on when the Purcell

principle should be abandoned, see Merrill v.

Milligan, 142 S. Ct. at 881 (Kavanaugh, J.,

concurring), concrete direction on the issue is needed.

Amicus requests this court take up this case so as to

not leave these important legal questions “hidden

beneath a shroud of doubt.” Republican Party of

Pennsylvania v. Degraffenreid, 141 S. Ct. 732, 738

(2021) (Thomas, J., dissenting). Without clarity on

the intersection of the doctrines of standing and the

Purcell principle, the Court only “invite[s] further

confusion and erosion of voter confidence” in the

election process. Id.

II.

This case presents an ideal vehicle to

provide clarity on the Purcell

principle’s intersection with the

doctrine of standing.

This case is a model case to clarify Purcell because

this case only pertains to the standing of a political

candidate in a very specific administrative context. It

is not encumbered by the judicial analysis needed to

determine the associational or organizational

standing of public advocacy or political groups, which

may complicate the Purcell principle’s analysis and

further confuse the issue. It is not in the middle of a

hotly contested election or a once-in-a-lifetime

pandemic that infuses emotion into an otherwise

pallid legal debate.

The court has the rare

opportunity here to offer guidance on a clean issue —

when a federal candidate has standing to bring a case

related to the time, place, and manner of elections,

and how the Purcell principle affects his standing.

Such a scenario makes this case an ideal vehicle. The

possible injury here occurs only late in the election.

The practice challenged here pokes the limits of

Purcell and this presents an opportunity to clarify

those limits.

CONCLUSION

For these reasons, amicus respectfully requests

that this Court grant the petition for writ of certiorari

and reverse the United States Court of Appeals for

the Seventh Circuit.

Respectfully submitted,