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

Supreme Court briefJul 28, 2025

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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 Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF OF AMICI CURIAE PHYLLIS

SCHLAFLY EAGLES AND EAGLE FORUM

EDUCATION & LEGAL DEFENSE FUND IN

SUPPORT OF PETITIONERS

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Pages

Table of Contents ......................................................... i

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

Interests of Amici Curiae ............................................ 1

Summary of Argument................................................ 2

Argument ..................................................................... 3

I. The 14-Day Ballot Collection Period Mandated

by Illinois Is Contrary to Federal Law ................ 3

II. Standing Exists Here for a Congressman under

the Reasoning of FEC v. Ted Cruz for Senate ..... 6

III. Limiting Challenges to Permissive Voting

Procedures Is Misguided ...................................... 7

Conclusion ................................................................. 10

TABLE OF AUTHORITIES

Pages

Cases

Baker v. Carr, 369 U.S. 186 (1962) ............................. 4

Bost v. Ill. State Bd. of Elections,

114 F.4th 634 (7th Cir. 2024) ..................... 2, 5, 6, 7

Child v. Delaware Cnty., 2024 U.S. Dist.

LEXIS 197843, 2024 WL 4643966

(E.D. Pa. 2024)........................................................ 8

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ................................................ 6

Drouillard v. Roberts, 2024 U.S. Dist. LEXIS

200298, 2024 WL 4667163 (N.D. Cal. 2024) ......... 8

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ................................................ 9

FEC v. Ted Cruz for Senate, 596 U.S. 289 (2022)....... 6

Gill v. Whitford, 585 U.S. 48 (2018) ............................ 5

Judicial Watch, Inc. v. Illinois Family Action,

Breakthrough Ideas, 2024 U.S. Dist. LEXIS

203147, 2024 WL 4721512 (N.D. Ill. 2024) ........... 8

Lance v. Coffman, 549 U.S. 437 (2007) ....................... 6

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ........... 2

Mussi v. Fontes, No. CV-24-01310-PHX-DWL,

2024 U.S. Dist. LEXIS 220142

(D. Ariz. Dec. 5, 2024) ........................................... 8

N. Shore Gas Co. v. EPA, 930 F.2d 1239

(7th Cir. 1991)......................................................... 7

Republican Nat. Comm’n v. Aguilar, 2024 U.S.

Dist. LEXIS 189613, 2024 WL 4529358

(D. Nev. 2024) ......................................................... 8

iii

Republican Nat. Comm’n v. Benson,

754 F. Supp. 3d 773, 2024 U.S. Dist. LEXIS

192714, 2024 WL 4539309 (W.D. Mich. 2024) ...... 8

Reynolds v. Sims, 377 U.S. 533 (1964)........................ 4

Schlesinger v. Reservists Comm. to Stop the War,

418 U.S. 208 (1974) ................................................ 9

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ................ 2

United States v. Students Challenging Regulatory

Agency Procedures, 412 U.S. 669 (1973) ................ 7

Statutes

2 U.S.C. § 7................................................................... 2

3 U.S.C. § 1................................................................... 2

Other Authorities

K. Davis, Administrative Law Treatise

(Supp. 1970) ............................................................ 7

K. Davis, Standing: Taxpayers and Others,

35 U. Chi. L. Rev. 601 (1968) ................................. 7

Ray Preston, “Postal Service appears to be a

weak link in elections,”

Juneau Empire (Alaska) (Feb. 2, 2022) ................. 4

J. Roberts, “Article III Limits on Statutory

Standing,” 42 Duke L. J. 1219 (1993) .................... 9

A. Scalia, “The Doctrine of Standing as an

Essential Element of the Separation of

Powers,” 17 Suffolk U. L. Rev. 881 (1983) ..........8-9

INTERESTS OF AMICI CURIAE1

Amicus Curiae Phyllis Schlafly Eagles was founded

in 2016 as an association to carry on the work of its

namesake in advocacy and educational work on

numerous issues, including election integrity. For

many years Phyllis Schlafly and then Phyllis Schlafly

Eagles urged a return to one-day national elections,

with the results reported that evening or as soon as

possible thereafter without delay.

Amicus Curiae Eagle Forum Education & Legal

Defense Fund (“Eagle Forum ELDF”) was founded in

1981 by Phyllis Schlafly, to advance conservative

educational and legal goals. Eagle Forum ELDF has

filed amicus curiae briefs in dozens of cases in this

Court and in other appellate courts, and its advocacy

has included opposing changes to election procedures

that depart from same-day voting and tabulating of

ballots.

Amici thereby have strong interests in establishing

standing by a congressman to challenge an extended

14-day period for receiving and counting ballots after

Election Day in Illinois, particularly in national

elections selecting congressmen and the president.

1 Pursuant to Rule 37.6, counsel for amici curiae authored

this brief in whole, no counsel for a party authored this brief

in whole or in part, and no such counsel or a party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person or entity – other than

these amici curiae, their members, and their counsel –

contributed monetarily to the preparation or submission of

this brief.

SUMMARY OF ARGUMENT

Illinois law requires the counting of ballots for 14

days after an election, which is contrary to federal law

mandating that the national election for Congress and

the President occur on one and only one day: the

Tuesday after the first Monday in November:

The Tuesday next after the 1st Monday in

November, in every even numbered year, is

established as the day for the election, in each of

the States and Territories of the United States, of

Representatives

and

Delegates

the Congress commencing on the 3d day of January

next thereafter.

2 U.S.C. § 7 (emphasis added). See also 3 U.S.C. § 1

(“The electors of President and Vice President shall be

appointed, in each State, on election day ….”)

(emphasis added). Illinois’ allowance of its prolonged

14-day post-election period is contrary to the foregoing

requirement of one “day for the election” of

congressmen. Although this case is presented as an

exceedingly simple issue of standing, no further

factual development is necessary to hold that Illinois’

extended post-election period is contrary to federal

law.

The Seventh Circuit erred in denying standing to

Congressman Mike Bost to challenge Illinois’s 14-day

period, by finding that the injury to him is not

“personal and individual” as the lower court perceived

this Court to require. Bost v. Ill. State Bd. of Elections,

114 F.4th 634, 640 (7th Cir. 2024) (quoting Spokeo,

Inc. v. Robins, 578 U.S. 330, 339 (2016), quoting Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992)). But

the fact that many people other than Congressman

Bost are injured by this extended 14-day period for

accepting ballots does not negate the standing of the

congressman to challenge this. The dissent below

correctly observed that Rep. Bost has standing

because of the additional costs imposed on his

campaign to monitor ballot counting long after

Election Day, and he also has standing on voterdilution grounds. Rep. Bost has waived his arguments

on the latter ground, but this Court is not bound by a

party’s waiver and should reverse that erroneous

holding below too.

Overly narrow views of legal standing in the

context of election integrity are misguided. Injury to

others from potential election fraud should not

undermine the standing of a candidate who is also

injured. The judiciary is the proper branch of

government to address illegality in election

procedures. Narrowing legal standing is justified to

avoid encroachment on another branch of government,

but no such concerns exist here in objecting to a lack

in election integrity in a novel voting procedure. This

Court should jettison the requirement of showing a

unique particularized injury by a party challenging

the legality of an overly permissive voting procedure.

ARGUMENT

I. The 14-Day Ballot Collection Period

Mandated by Illinois Is Contrary to Federal

Law.

Illinois permits the fraudulent voting practice of

casting a ballot after Election Day while dating it as of

Election Day, and mailing it in a manner that evades

a legibly dated postmark.2 The Illinois law at issue

here requires counting that ballot, and in a close

election such ballots could tip the balance of victory

from one side to the other. A candidate plainly has

sufficient injury, and thus standing, to challenge the

legality of a 14-day post-election acceptance of mailedin ballots.

This is not a redistricting case, and does not have

any legal similarities to redistricting litigation in

which standing has sometimes (not always) been

narrowed. The panel majority below misplaced

reliance on this Court’s denial of standing in an

unusual challenge to redistricting, which casted doubt

about standing while remanding the issue for further

consideration. See Gill v. Whitford, 585 U.S. 48 (2018).

The Seventh Circuit panel misapplied Gill to deny

standing entirely below:

That case involved a challenge to a redistricting

plan in Wisconsin. In determining that the

plaintiffs lacked standing, the Supreme Court

distinguished the allegations in Baker [v. Carr],

369 U.S. 186 [(1962)], and Reynolds v. Sims, 377

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

2 The United States Postal Service does not postmark every

piece of mail, because the cancellation purpose of a

postmark is unnecessary on many types of letters, including

those with prepaid reply postage as mail-in ballots typically

are. See, e.g., Ray Preston, “Postal Service appears to be a

weak link in elections,” Juneau Empire (Alaska) (Feb. 2,

2022) (“the postal service here did not have the type of

equipment that would postmark business reply mail, nor

did they anticipate obtaining that equipment any time

soon,” and 300 returned ballots (3.5% of the total) lacked a

postmark).

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 generalized grievance affecting all Illinois

voters; therefore, they have not alleged a

sufficiently concrete and particularized injury in

fact to support Article III standing.

Bost, 114 F.4th at 641 (citation trimmed).

The Seventh Circuit panel majority simply

overread Gill, and then overapplied it. Unlike here,

Gill concerned “group political interests” rather than

“individual legal rights” such as those held by a

congressional candidate. Gill, 585 U.S. at 72. The

holding by this Court in Gill was that:

this Court is not responsible for vindicating

generalized partisan preferences. The Court’s

constitutionally prescribed role is to vindicate the

individual rights of the people appearing before it.

Id. The challenge in Gill was to partisan gerrymander,

and “the effect that a gerrymander has on the fortunes

of political parties.” Id. Even then, this Court did not

dismiss Gill based on a lack of standing, but merely

remanded it for further consideration of this issue.

Unlike Gill, the challenge at issue here is not one

based on partisan political preferences, about which

this Court is understandably cautious, but is instead a

congressman challenging an improper extension of a

federally mandated Election Day long past the election

itself. In this lawsuit here against an election

procedure, the caution about standing expressed by

this Court in Gill is lacking the force that it has in a

redistricting case.

Here, there is a conflict between Illinois and federal

law, and the Petitioner’s job is at stake. Rep. Bost is

not a mere voter to whom the Supreme Court denied

standing because voters “assert no particularized

stake in the litigation.” Lance v. Coffman, 549 U.S.

437, 442 (2007). The biennial federal election in

Illinois decides whether Rep. Bost will be employed on

Capitol Hill the following January, and this is an

injury particularized enough to establish standing.

II. Standing Exists Here for a Congressman

under the Reasoning of FEC v. Ted Cruz for

Senate.

Standing exists here as it did for Senator Ted Cruz

in FEC v. Ted Cruz for Senate, 596 U.S. 289 (2022).

While the substantive issue in that case differed from

this one, the threshold question of standing is legally

indistinguishable and the reasoning by this Court in

that precedent is controlling here. It is puzzling why

the panel majority below omitted any mention of this

relatively recent teaching by this Court.

The panel majority relied heavily on Clapper v.

Amnesty Int’l USA, 568 U.S. 398 (2013), without

acknowledging that this Court clarified its holding in

Clapper by its decision in FEC v. Cruz. As explained

by the dissent below and left unrebutted by the panel

majority, FEC v. Cruz clarified “that the problem

that Clapper addressed was that the plaintiffs could

not show that they had been or were likely to be

subjected to the policy in any event.” Bost, 114 F.4th

at 647 (Scudder, J., dissenting, quoting Clapper,

cleaned up). In contrast, the application of the

challenged law here “is a near certainty,” as Rep. Bost

is compelled to incur costs to monitor ballot-counting

“for an additional two weeks after Election Day.” Id.

Rep. Bost has an actual injury from Illinois law, not

merely a speculative one. While the amount of his

injury may be debatable, its existence is undeniable

and that is all that is needed to satisfy standing. “‘[A]n

identifiable trifle is enough for standing to fight out a

question of principle; the trifle is the basis for standing

and the principle supplies the motivation.’” United

States v. Students Challenging Regulatory Agency

Procedures, 412 U.S. 669, 689 n.14 (1973) (quoting

Davis, Standing: Taxpayers and Others, 35 U. Chi. L.

Rev. 601, 613 (1968), and also citing K. Davis,

Administrative Law Treatise §§ 22.09-5, 22.09-6

(Supp. 1970)).

III. Limiting Challenges to Permissive Voting

Procedures Is Misguided.

Standing is generally an undemanding threshold

requirement. See, e.g., N. Shore Gas Co. v. EPA, 930

F.2d 1239, 1242 (7th Cir. 1991) (“a probabilistic benefit

from winning a suit is enough ‘injury in fact’ to confer

standing in the undemanding Article III sense”)

(collecting authorities). The traditionally low

threshold for Article III standing is particularly

warranted in the context of challenging permissive

voting procedures susceptible to fraud.

The 14-day ballot post-Election Day counting

procedure in Illinois is just that. Under the panel

decision below, Illinois could extend its post-Election

Day ballot collection period even longer, and virtually

no one would have standing to challenge it. Judicial

review would be thwarted for an election procedure

that allows people to cast a ballot days or even more

than a week after Election Day, in the hope or

knowledge that it would not a bear a postmark that

anyone would notice to disqualify the ballot.

Recently many challenges to enforce the National

Voter Registration Act (NVRA) requirement to clean

their election rolls of invalid voters have been

dismissed based on an overly restrictive view of

standing. See Mussi v. Fontes, No. CV-24-01310-PHXDWL, 2024 U.S. Dist. LEXIS 220142, at *12 (D. Ariz.

Dec. 5, 2024) (“[T]he Court concludes that Plaintiffs

lack standing here because they have not alleged a

concrete and particularized injury that is actual and

imminent.”); Republican Nat. Comm'n v. Benson, 754

F. Supp. 3d 773, 2024 U.S. Dist. LEXIS 192714, 2024

WL 4539309, *7-12 (W.D. Mich. 2024); Republican

Nat. Comm'n v. Aguilar, 2024 U.S. Dist. LEXIS

189613, 2024 WL 4529358, *3-8 (D. Nev. 2024); Child

v. Delaware Cnty., 2024 U.S. Dist. LEXIS 197843,

2024 WL 4643966, *4 (E.D. Pa. 2024); Judicial Watch,

Inc. v. Illinois Family Action, Breakthrough Ideas,

2024 U.S. Dist. LEXIS 203147, 2024 WL 4721512, *57 (N.D. Ill. 2024). See also Drouillard v. Roberts, 2024

U.S. Dist. LEXIS 200298, 2024 WL 4667163, *4 (N.D.

Cal. 2024) (denying a TRO request as part of an NVRA

voter-roll maintenance claim, due to lack of standing).

Multiple justifications for narrowing legal standing

do not exist in this type of challenge to a porous

election procedure that permissively allows the

counting of ballots long after Election Day. Separation

of powers doctrine, for example, is one rationale for

narrowing legal standing, to ensure that the judiciary

does not overreach into the legislative realm. See, e.g.,

A. Scalia, “The Doctrine of Standing as an Essential

Element of the Separation of Powers,” 17 Suffolk U. L.

Rev. 881, 882 (1983) (quoted in FDA v. All. for

Hippocratic Med., 602 U.S. 367, 379 (2024)); J.

Roberts, “Article III Limits on Statutory Standing,” 42

Duke L. J. 1219, 1220 (1993) (The standing

requirement protects “the Framers’ concept of the

proper—and properly limited—role of the courts in a

democratic society.”) (inner quotation marks omitted).

The standing requirement prevents federal courts

from deciding some disputes because ‘[o]ur system of

government leaves many crucial decisions to the

political processes.’” All. for Hippocratic Med., 602 U.S.

at 380 (quoting Schlesinger v. Reservists Comm. to

Stop the War, 418 U.S. 208, 227 (1974)).

Here, this lawsuit challenges a state law that

undermines federal elections in Illinois by allowing

votes to be cast after Election Day, without airtight

verification that all of these ballots were mailed by

Election Day. Yet the theory of standing by the panel

majority below forecloses any judicial review of this

Illinois law. There is no one else who would have

standing to challenge this, if Rep. Bost lacks standing.

Finally, Petitioners expressly waived appealing the

ruling against them based on their claim of voter

dilution. (Pet. 31 n.13) But this Court is not bound by

such a waiver. Given the significance of the issue of

permissive state laws that potentially undermine

federal elections, the Court should take this

opportunity to establish that a candidate has standing

based on voter dilution to challenge a state election

procedure that is susceptible to fraud.

CONCLUSION

For the above reasons and those presented by

Petitioners, the Court should reverse the decision

below.

Respectfully submitted,