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

Supreme Court briefJul 29, 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 FOR THE REPUBLICAN

NATIONAL COMMITTEE AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Thomas R. McCarthy

Counsel of Record

Gilbert C. Dickey

Conor D. Woodfin

William Bock IV

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

July 29, 2025

Counsel for the Republican

National Committee

TABLE OF CONTENTS

Table of Authorities ................................................. iii

Statement of Interest ............................................... 1

Introduction and Summary of the Argument ......... 2

Argument .................................................................. 4

A political competitor suffers a concrete and

particularized injury from an illegally

structured election. ............................................ 4

II. The Seventh Circuit confused pre-election

lawsuits with post-election contests. .............. 13

III. The Seventh Circuit’s reasoning would force

disputes over election rules into post-election

litigation. .......................................................... 15

Conclusion............................................................... 19

iii

TABLE OF AUTHORITIES

Cases

Ariz. Libertarian Party, Inc. v. Bayless,

351 F.3d 1277 (9th Cir. 2003) ............................... 10

Ass’n of Data Processing Serv. Orgs. v. Camp,

397 U.S. 150 (1970) ........................................... 4, 11

Assoc’d Gas Distribs. v. FERC,

899 F.2d 1250 (D.C. Cir. 1990) ............................... 9

Becker v. FEC,

230 F.3d 381 (1st Cir. 2000) ................................ 7, 8

Belitskus v. Pizzingrilli,

343 F.3d 632 (3d Cir. 2003) ............................. 6, 7, 8

Bognet v. Degraffenreid,

141 S. Ct. 2508 (2021) ........................................... 14

Bognet v. Sec’y Commonwealth of Pa.,

980 F.3d 336 (3d Cir. 2020) ................................... 14

Bush v. Gore,

531 U.S. 1046 (2000) ............................................. 12

Castro v. Scanlan,

86 F.4th 947 (1st Cir. 2023) ................................ 5, 7

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ............................................... 11

Clements v. Fashing,

457 U.S. 957 (1982) ........................................... 4, 11

Clinton v. City of New York,

524 U.S. 417 (1998) ........................................... 5, 15

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

141 S. Ct. 28 (2020) ..................................... 2, 16, 17

DNC v. Trump,

No. 1:25-cv-952 (D.D.C. 2025) ............................... 10

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ............................................... 13

Fulani v. Hogsett,

917 F.2d 1028 (7th Cir. 1990) ................................. 6

Fulani v. League of Women Voters Educ. Fund,

882 F.2d 621 (2d Cir. 1989) ..................................... 6

Green Party of Tenn. v. Hargett,

767 F.3d 533 (6th Cir. 2014) ................................... 6

Griffin v. Burns,

570 F.2d 1065 (1st Cir. 1978) ................................ 14

Hotze v. Hudspeth,

16 F.4th 1121 (5th Cir. 2021) .......................... 12, 14

Inv. Co. v. Camp,

401 U.S. 617 (1971) ................................................. 4

La. Energy & Power Auth. v. FERC,

141 F.3d 364 (D.C. Cir. 1998) ................................. 9

Lance v. Coffman,

549 U.S. 437 (2007) ......................................... 11, 12

LaRoque v. Holder,

650 F.3d 777 (D.C. Cir. 2011) ................................. 5

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992)) .............................................. 13

Mecinas v. Hobbs,

30 F.4th 890 (9th Cir. 2022) ........................ 5, 11, 15

Merrill v. Milligan,

142 S. Ct. 879 (2022) ......................................... 4, 16

Nat’l Credit Union Admin. v. First Nat’l Bank & Tr.,

522 U.S. 479 (1998) ................................................. 5

Ne. Fla. Chapter of Assoc’d Gen. Contractors of Am.

v. City of Jacksonville,

508 U.S. 656 (1993) ................................. 3, 4, 11, 15

Owen v. Mulligan,

640 F.2d 1130 (9th Cir. 1981) ..................... 6, 10, 12

Purcell v. Gonzalez,

549 U.S. 1 (2006) ............................................. 16, 18

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ................................. 3, 5, 11, 15

Republican Party of Pa. v. Boockvar,

141 S. Ct. 1 (2020) ........................................... 16, 18

Republican Party of Pa. v. Degraffenreid,

141 S. Ct. 732 (2021) ................................. 17, 18, 19

RNC v. Burgess,

No. 3:24-cv-198 (D. Nev. 2024) ............................. 10

RNC v. DNC,

589 U.S. 423 (2020) ............................................... 16

RNC v. Wetzel,

120 F.4th 200 (5th Cir. 2024) .................................. 2

Schulz v. Williams,

44 F.3d 48 (2d Cir. 1994) ..................................... 5, 6

Shays v. FEC,

414 F.3d 76 (D.C. Cir. 2005) ......................... passim

State Nat’l Bank of Big Spring v. Lew,

795 F.3d 48 (D.C. Cir. 2015) ................................... 6

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll.,

600 U.S. 181 (2023) ................................................. 5

Tex. Democratic Party v. Benkiser,

459 F.3d 582 (5th Cir. 2006) ............................. 6, 12

Trump v. WEC,

983 F.3d 919 (7th Cir. 2020) ................................. 13

United States v. Wisconsin,

771 F.2d 244 (7th Cir. 1985) ................................. 13

Vote Choice, Inc. v. DiStefano,

4 F.3d 26 (1st Cir. 1993) ...................................... 5, 6

Wood v. Raffensperger,

981 F.3d 1307 (11th Cir. 2020) ............................. 13

Statutes

10 Ill. Comp. Stat. §5/18A-15................................ 2, 18

10 Ill. Comp. Stat. §5/19-8 .................................... 2, 18

10 Ill. Comp. Stat. §5/22-7 ........................................ 18

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

52 U.S.C. §30101 ......................................................... 1

Other Authorities

Ill. State Bd. of Elections, Election Results, 2022

General Election, perma.cc/XEL3-WSC9 ............... 9

STATEMENT OF INTEREST1

The Republican National Committee is the national committee of the Republican Party as defined

by 52 U.S.C. §30101(14). The RNC manages the business of the Republican Party at the national level,

coordinating fundraising and election strategy; developing and promoting the Party’s national platform;

and organizing and operating the Republican National Convention, which nominates a candidate for

President and Vice President of the United States.

The RNC represents over 30 million registered Republicans and has 168 voting members who hail from all

50 states, the District of Columbia, and U.S. territories.

The RNC works to elect Republican candidates to

state and federal office. The RNC’s candidate members include the Petitioner in this case, U.S.

Representative Michael Bost. In November 2026, the

RNC’s candidates will appear on the ballot in every

State for election to the U.S. House of Representatives, and in each State holding an election for the

U.S. Senate. In preparing for the upcoming election,

the RNC has vital interests in protecting the ability of

Republican voters to cast, and Republican candidates

to receive, effective votes in federal and state elections. To this end, the RNC supports numerous

election integrity efforts, deploying thousands of election observers, both paid and volunteer, to ensure that

only qualified voters vote and that unqualified voters

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

and no other entity or person, other than the RNC or its counsel,

made any monetary contribution toward the preparation and

submission of this brief.

do not dilute the votes cast by lawful voters with illegal ballots.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

“Elections must end sometime, a single deadline

supplies clear notice, and requiring ballots be in by

election day puts all voters on the same footing.” Democratic Nat’l Comm. v. Wis. State Legislature, 141 S.

Ct. 28, 28 (2020) (Gorsuch, J., concurral). Congress established a single deadline for the election of members

of Congress. 2 U.S.C. §§1, 7. It is the “Tuesday next

after the 1st Monday in November.” Id. at §7. “Text,

precedent, and historical practice confirm this ‘day for

the election’ is the day by which ballots must be both

cast by voters and received by state officials.” RNC v.

Wetzel, 120 F.4th 200, 203-04 (5th Cir. 2024), cert. petition filed, No. 24-1260. But under Illinois law,

elections do not end on the federal election day. Instead, Illinois permits receipt of mail ballots up to

fourteen days after election day. 10 Ill. Comp. Stat.

§§5/19-8(c), 5/18A-15(a). Illinois’ practice of receiving

ballots “after the federal election day” is “preempted

by federal law.” Wetzel, 120 F.4th at 204.

Illinois’ extended election concretely harms Petitioner Michael Bost, the Republican candidate for

Congress in Illinois’ Twelfth District. It increases

competition between Bost and his political rivals by

prolonging the ballot-receipt period for the type of voting that Bost’s Democratic opponents favor. It forces

Bost to change his campaign strategy to anticipate

and respond to a longer mail-ballot receipt period than

federal law would otherwise allow. It requires Bost to

run poll-watching and mail-ballot chase programs for

up to two weeks after election day. And it distorts the

competitive environment in which Bost must run for

re-election by depriving him of the legal structure for

a congressional election guaranteed by federal law.

Each of these is a concrete injury to Bost, redressable

by an order enjoining enforcement of Illinois’ postelection receipt rules.

The Seventh Circuit’s opinion recognizes that the

competitor-standing doctrine applies to political candidates. Pet. App. 13a. But it rejects Bost’s standing

as a candidate by misapplying precedents on voter

standing, without accounting for the unique ways in

which candidates are harmed by unlawful election

rules. A candidate’s injury as one of the competitors in

an electoral contest is far more specific than a voter’s

injury.

The Seventh Circuit also faulted Bost for not alleging that the outcome of his race would have been

different but for Illinois’ post-election deadline. According to the panel, Bost must credibly allege that

“the counting of ballots received after Election Day

would cause” him “to lose the election.” Pet. App. 11a.

But this Court has never applied an “outcome” test to

determine injury under the competitor standing doctrine. Instead, it has consistently held that competitor

plaintiffs need only allege that they’re “able and

ready” to compete and that the allegedly unlawful policy “makes it more difficult” for them to do so. Ne. Fla.

Chapter of Assoc’d Gen. Contractors of Am. v. City of

Jacksonville, 508 U.S. 656, 666 (1993). That’s why a

college applicant doesn’t need to demonstrate that the

school would otherwise admit him before he can challenge an affirmative action policy. Regents of Univ. of

Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978). Federal

contractors don’t need to show that they’d win the

contract but for a discriminatory policy. Assoc’d Gen.

Contractors, 508 U.S. at 666. And public officeholders

don’t need to show that they “would actually have

been elected” in an upcoming election to challenge an

automatic resignation requirement from their current

position. Id. (citing Clements v. Fashing, 457 U.S.

957, 962 (1982)).

The Seventh Circuit’s “predict the results” test

would undermine the orderly resolution of electionlaw disputes. It threatens to bar the courthouse doors

to political candidates of every stripe who seek to clarify the rules of their elections before election day. If

political competitors must plausibly allege an “election defeat” to establish standing, then their suits will

be justiciable only after the “voting process” has already “started.” Pet. App. 14a-15a. But obtaining

relief at that point is at least in tension—if not irreconcilable—with the Purcell principle, which prohibits

“[l]ate judicial tinkering with election laws.” Merrill v.

Milligan, 142 S. Ct. 879, 880-81 (2022) (Kavanaugh,

J., concurral). As a result, election litigation will be

channeled into high-stakes post-election lawsuits

with truncated timelines, heated convictions, and

greater public scrutiny.

ARGUMENT

A political competitor suffers a concrete

and particularized injury from an illegally

structured election.

A plaintiff has standing when the government illegally structures a “competition” between the plaintiff

and his rivals. See Inv. Co. v. Camp, 401 U.S. 617, 620

(1971); Ass’n of Data Processing Serv. Orgs. v. Camp,

397 U.S. 150, 152 (1970) (finding standing in a

“competitor’s suit”). This Court “routinely” recognizes

“injury resulting from governmental actions that alter

competitive conditions as sufficient to satisfy the Article III ‘injury-in-fact’ requirement.” Clinton v. City of

New York, 524 U.S. 417, 433 (1998) (cleaned up); see

also Nat’l Credit Union Admin. v. First Nat’l Bank &

Tr., 522 U.S. 479, 488 & n.4 (1998) (“competitors” have

“standing to challenge” government action “relaxing

statutory restrictions on the activities” of their rivals).

Competitor standing applies “to politics as well as

business.” Shays v. FEC, 414 F.3d 76, 87 (D.C. Cir.

2005). “[P]olitical competitor standing … derives its

logic from” this Court’s “doctrine of economic competitor standing.” Castro v. Scanlan, 86 F.4th 947, 954

(1st Cir. 2023). It recognizes that “one direct competitor’s gain of market share is another’s loss.” Id. That

principle holds true in any zero-sum competition—

from economic competition, Clinton, 524 U.S. at 43233, to college-admission competition, see Bakke, 438

U.S. at 280 n.14, to electoral competition, Shays, 414

F.3d at 87. In each case, “[a] benefit provided to [one]

but not to others necessarily advantages the former …

at the expense of the latter.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600

U.S. 181, 218-19 (2023). Competitor standing is thus

“neither novel nor unique to the realm of the electoral.” Mecinas v. Hobbs, 30 F.4th 890, 898 (9th Cir.

2022).

For this reason, nearly every circuit has recognized

that political competitors have standing to challenge

the rules governing their competition. See LaRoque v.

Holder, 650 F.3d 777, 786-87 (D.C. Cir. 2011); Vote

Choice, Inc. v. DiStefano, 4 F.3d 26, 37 (1st Cir. 1993);

Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994);

Fulani v. League of Women Voters Educ. Fund, 882

F.2d 621, 625-26 (2d Cir. 1989); Belitskus v. Pizzingrilli, 343 F.3d 632, 640-41 (3d Cir. 2003); Tex.

Democratic Party v. Benkiser, 459 F.3d 582, 582-87

(5th Cir. 2006); Green Party of Tenn. v. Hargett, 767

F.3d 533, 544 (6th Cir. 2014); Fulani v. Hogsett, 917

F.2d 1028, 1030 (7th Cir. 1990); Owen v. Mulligan,

640 F.2d 1130, 1132-33 (9th Cir. 1981).

The “concept of [political] competitors’ standing”

has been “well-established” in the lower courts for decades. Schulz, 44 F.3d at 53. It recognizes that

“[c]ompetitors suffer an injury in fact” when the government “lift[s] regulatory restrictions on their

competitors or otherwise allow[s] increased competition against them.” State Nat’l Bank of Big Spring v.

Lew, 795 F.3d 48, 55 (D.C. Cir. 2015) (Kavanaugh, J.)

(cleaned up). In such situations, competitors “must

anticipate and respond to a broader range of competitive tactics than federal law would otherwise allow.”

Shays, 414 F.3d at 86. They must change their competitive “strategy and conduct.” Vote Choice, 4 F.3d at

37. Forced to alter how they “will run their campaigns” due to the “intensified competition” created by

the government’s illegal structuring of the competitive environment, competitors have suffered an

Article III harm. Shays, 414 F.3d at 87.

The Seventh Circuit failed to faithfully apply these

well-established principles. According to the Seventh

Circuit, a candidate must prove that “allowing votes

to be received and counted after Election Day could

decrease their margin of victory.” Pet. App. 13a. But

that misunderstands the doctrine. While margin of

victory can establish Article III injury, competitor

standing often isn’t about the margin at all. It’s also

about campaign strategy. It’s not only about what

happens on election day—it’s also about what a candidate must do before and after election day. The “need

to adjust” one’s “campaign strategy” in response to the

illegal structuring of a competitive environment is an

independent injury. Shays, 414 F.3d at 87. It is “being

put to the choice” of either changing campaign plans

or “suffering disadvantage.” Id. at 89. That injury has

less to do with the election’s outcome and everything

to do with the “impact” on “the candidate’s campaign

strategy and allocation of resources” from the State’s

illegal structuring of the competitive environment.

Belitskus, 343 F.3d at 641.

With the injury properly identified as the “need to

adjust” campaign strategy due to Illinois’ extended

mail-ballot receipt deadline, Shays, 414 F.3d at 87,

Bost’s standing as a competitor is obvious. Bost has

been “a candidate for elected office both under Illinois’

previous ballot receipt deadline (on or before Election

Day)” and after Illinois amended its deadline to allow

mail-ballot receipt up to fourteen days after election

day. Pet. App. 65a. When Illinois had an election-day

deadline for mail-ballot receipt, Bost generally “only

needed volunteers for early voting and Election Day”

and his “campaign ended on Election Day evening.”

Pet. App. 66a. But since Illinois allowed for postelection-day mail-ballot receipt, Bost has been put “to

the ‘coerced choice’ of either” changing his campaign

strategies “or suffering a competitive disadvantage by

not participating.” Castro, 86 F.4th at 956 (quoting

Becker v. FEC, 230 F.3d 381, 387 (1st Cir. 2000)).

For example, Bost must now “organize, fundraise,

and run” his “campaign for fourteen additional days

in order to monitor and respond as needed to ballots

received after the national Election Day.” Pet. App.

66a. He must pay poll watchers to monitor mail-ballot

receipt for fourteen additional days. Pet. App. 67a. He

must continue running his “ballot chase program” to

support “get-out-the-vote efforts and other concerns”

for fourteen days longer than he previously did under

Illinois’ prior election-day deadline. Pet. App. 68a. The

“impact” of Illinois’ post-election deadline on Bost’s

“campaign strategy and allocation of resources is sufficient to satisfy the requirements of Article III.” Cf.

Belitskus, 343 F.3d at 641 (paying $5 filing fee is

enough for candidate to have standing).

The Seventh Circuit reasoned that these campaign

adjustments are merely a personal “choice,” and that

Bost didn’t need to change his strategy to avoid “election defeat” because he “won the last election with

seventy-five percent of the vote.” Pet. App. 11a. But

that reasoning improperly “second-guess[es] a candidate’s reasonable assessment of his own campaign,”

which should be “given credence.” Becker, 230 F.3d at

387. “To probe any further into these situations would

require the clairvoyance of campaign consultants or

political pundits—guises that members of the apolitical branch should be especially hesitant to assume.”

Id.

In other words, the injury is “being put to the

choice” of either changing campaign plans or “suffering disadvantage.” Shays, 414 F.3d at 89. Bost need

not prove that a “majority” of votes received after election day will actually break against him. Contra Pet.

App. 13a. For competitor standing, “when adverse use

of illegally granted opportunities appears inevitable,

affected parties may challenge the government’s authorization of those opportunities without waiting for

specific competitors to seize them.” Shays, 414 F.3d at

90. Courts thus “have not required litigants to wait

until increased competition actually occurs.” La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C.

Cir. 1998). Instead, “standing” is established “by

showing that the challenged action authorizes allegedly illegal transactions that have the clear and

immediate potential to compete with petitioners’ own

sales.” Assoc’d Gas Distribs. v. FERC, 899 F.2d 1250,

1259 (D.C. Cir. 1990). Given that the federal electionday deadline would apply if Bost prevailed on the merits, Bost’s “asserted injury—having to defend [his]

office in illegally constituted reelection fights—is not

a matter” of his “personal choice” but rather “it stems

from the ‘operation,’ of regulations permitting what

[federal law] bans.” Shays, 414 F.3d at 89 (cleaned

up).

Bost’s victory in his last election does not mean his

interests as a competitor are not concrete. The “past

is not prologue for political candidates.” Pet. App. 19a

(Scudder, J., dissenting in part). Bost has an interest

in ensuring that that the rules of the game of the election in which he is competing are as advantageous to

him as possible because “[i]n no way is any outcome

guaranteed in November.” Pet. App. 19a.

It is inevitable that Illinois’ extended mail-ballot

receipt deadline will be exploited by Bost’s political rivals. Bost’s chief rival is the Democratic candidate.

See Ill. State Bd. of Elections, Election Results, 2022

General Election, perma.cc/XEL3-WSC9; see also Pet.

App. 11a at n.2 (taking “judicial notice” of Bost’s election results). The Democratic National Committee has

argued that when States allow post-election mail-ballot receipt, it “undoubtedly” affects “both the DNC’s

voter-members’ ability to vote and candidate members’ ability to win.” Mot. to Intervene, RNC v.

Burgess, Doc. 20 at 12, No. 3:24-cv-198 (D. Nev. May

13, 2024). The DNC maintains that it suffers “competitive” injury from enforcement of the federal election

day deadline, alleging that “Democratic voters use

mail ballots at higher rates than their Republican

counterparts in many States.” Compl., DNC v. Trump,

Doc. 1 at 35, No. 1:25-cv-952 (D.D.C. Mar. 31, 2025).

According to the DNC, the federal election-day deadline hurts Democratic candidates because “[d]ata …

consistently shows that the voters whose ballots are

rejected due to receipt past the deadline are disproportionately those from groups of citizens who tend to

be registered Democrats.” Id. It isn’t “speculative”

that Bost suffers competitive injury from Illinois’ postelection deadline. Contra Pet. App. 11a. At a minimum, the deadline “arguably promote[s]” his

opponents’ “electoral prospects.” Owen, 640 F.2d at

1133. The two major political parties agree on that

point.

The Seventh Circuit erred by concluding that Bost

must allege the counting of votes after election day

would “cause” him “to lose the election.” Pet. App. 11a.

Under that logic, Illinois could by law give Democratic

candidates five thousand extra votes in an election,

and Republican candidates would have no standing to

sue if they could not show their election would be decided by five thousand or fewer votes. That

Republican candidates must change their campaign

strategy and work harder to overcome the illegal

structuring of the election is the injury. “It is not necessary” to show that “the outcome” would have been

different. Ariz. Libertarian Party, Inc. v. Bayless, 351

F.3d 1277, 1280 (9th Cir. 2003).

Competitor standing never requires allegations

that “the actual outcome of a partisan election” would

be different. Mecinas, 30 F.4th at 899; see also Data

Processing, 397 U.S. at 152 (injury established by allegations that competition from national banks

“might entail some future loss of profits”). Contractors

have standing to challenge an ordinance awarding

preferential contracts to minority-owned businesses

without showing that they would have received a contract absent the ordinance. Assoc’d Gen. Contractors,

508 U.S. at 658. A college applicant has standing to

challenge an affirmative action program even if he is

“unable to prove that he would have been admitted in

the absence of the special program.” Bakke, 438 U.S.

at 280 n.14. And political candidates have standing to

challenge an automatic resignation requirement without “any allegation” that they “would actually have

been elected but for” that requirement. Assoc’d Gen.

Contractors, 508 U.S. at 666 (citing Clements, 457

U.S. at 962). In all these cases, it is the denial of “the

opportunity to compete” in a competition structured

according to law that is the injury. Id. (quoting City of

Richmond v. J.A. Croson Co., 488 U.S. 469, 493

(1989)). “To establish standing, therefore, a party”

need “only demonstrate that it is able and ready” to

compete and that the challenged “policy prevents it

from doing so” in a way that violates federal law. Id.

Bost’s injury from an illegally structured election

is particularized. Misapplying Lance v. Coffman, the

Seventh Circuit ruled that Bost’s injuries are “undifferentiated, generalized grievance[s].” Pet. App. 14a.

But Lance concerned the standing of “four Colorado

voters”—not a candidate for political office. Lance v.

Coffman, 549 U.S. 437, 441 (2007). This Court held

that an injury is “only a generally available grievance”

when it claims “harm” to “every citizen’s interest in

proper application” of the “laws” and seeks “relief that

no more directly and tangibly benefits” the plaintiff

“than it does the public at large.” Id. at 439 (cleaned

up).

Not every citizen shares Bost’s personal interests

as “a political competitor.” Shays, 414 F.3d at 87

(cleaned up). His unique interests include “retention

of elected office,” id.; “prevent[ing]” an “opponent from

gaining an unfair advantage in the election process,”

Owen, 640 F.2d at 1133; and amassing political

“power” to “better direct the machinery of government,” Benkiser, 459 F.3d at 587.

Nor is Bost seeking relief that benefits the public

at large. Instead, he seeks to improve his own “electoral prospects.” Id. So his injury is not generalized.

Indeed, it is hard to think of anyone “who suffers more

directly” than a political candidate when an election

is illegally structured. Shays, 414 F.3d at 83. 441.

Even if individual voters might not have a “particularized stake” in how elections are run, candidates

competing in that election do. Cf. Bush v. Gore, 531

U.S. 1046, 1047 (2000) (Scalia, J., concurring) (“The

counting of votes that are of questionable legality”

does “threaten irreparable harm” to a candidate.).

The Seventh Circuit “question[ed]” whether Bost

had any particularized interest as a candidate. Pet.

App.14a. But a candidate’s unique interests as a political competitor are why, prior to the Seventh

Circuit’s decision here, “circuit authorities” uniformly

held that “candidates do have standing to contest violations of election law.” Hotze v. Hudspeth, 16 F.4th

1121, 1126 (5th Cir. 2021) (Oldham, J., dissenting)

(collecting cases). Even the Seventh Circuit has

acknowledged in other cases that the candidate who

expends time, energy, and resources into his campaign has a particularized interest in “the allegedly

unlawful manner” in which an election is run. Trump

v. WEC, 983 F.3d 919, 924 (7th Cir. 2020).

“As a candidate for elected office,” the “unlawful

manner” in which Illinois’ election is structured “affect[s]” Bost ‘“in a personal and individual way.”’ Id.

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992)). “[A] political candidate harmed” by the counting of illegal votes can thus “assert a personal, distinct

injury.” Wood v. Raffensperger, 981 F.3d 1307, 1314

(11th Cir. 2020). Bost isn’t a “mere bystander” when

he is competing for votes in Illinois’ Twelfth Congressional District. Pet. App. 23a (quoting FDA v. All. for

Hippocratic Med., 602 U.S. 367, 379 (2024)). Bost is

competing on a “playing field[]” against “genuine rival[s]” for political office. Shays, 414 F.3d at 87. The

voters in Lance were not.

II.

The Seventh Circuit confused pre-election

lawsuits with post-election contests.

By requiring Bost to show that he would “lose the

election,” the Seventh Circuit grafted a prudential

post-election rule into Article III. Pet. App. 11a.

Courts apply a “change the outcome” test in contests

challenging election results. That longstanding rule

instructs courts to refrain from invalidating ballots or

requiring recounts if doing so would “not affect the

outcome of any of the races at stake in the election.”

United States v. Wisconsin, 771 F.2d 244, 245 (7th Cir.

1985). The circuits have developed slight variations,

but they agree that the “‘outcome’ test provides a sensible guideline for determining when federal judicial

invalidation of an election might be warranted.”

Griffin v. Burns, 570 F.2d 1065, 1080 (1st Cir. 1978)

(collecting cases).

This “outcome” test has no place when determining

Article III standing for pre-election lawsuits. The Seventh Circuit cited no support for its conclusion that a

candidate must predict an “election defeat” to establish standing. Pet. App. 11a. The panel may have

arrived at that rule by following the Third Circuit’s

vacated decision in Bognet v. Secretary Commonwealth of Pennsylvania, 980 F.3d 336 (3d Cir. 2020),

vacated, 141 S. Ct. 2508 (2021). Respondents implored

the Seventh Circuit to “follow” Bognet. Br. of Defs.,

Bost v. Ill. Bd. of Elections, 2023 WL 8531525, at *12

& n.4. But even if it weren’t vacated, Bognet doesn’t

support the Seventh Circuit’s pre-election application

of the “outcome” rule, since the Third Circuit didn’t

resolve the case until about two weeks after the election. 980 F.3d at 345. Since the plaintiffs filed their

complaint before the election, there’s good reason to

think that the Third Circuit “confuse[d] standing and

mootness.” Hotze, 16 F.4th at 1128 (Oldham, J., dissenting). Until the Seventh Circuit’s decision, “the

only non-vacated circuit authorities to confront this

question have held that candidates do have standing

to contest violations of election law.” Id. at 1128 (collecting cases).

There’s a long history of federal courts refusing to

involve themselves in “garden variety” post-election

disputes affecting the validity of specific votes if the

number of votes isn’t enough to flip the election. Griffin, 570 F.2d at 1076, 1080 (collecting cases). It might

be “sensible” to invalidate an election only when the

allegedly illegal conduct is outcome determinative. Id.

at 1080. But it makes no sense to hold a candidate to

the impossible task of proving what an election’s outcome will be.

The Court should reject the Seventh Circuit’s novel

standing doctrine. Even if the “‘outcome’ test” itself is

rooted in Article III, applying the test to pre-election

lawsuits isn’t justified under the Court’s standing

precedents. College applicants don’t need to prove

that they’d get in the school absent an illegal admissions process. See Bakke, 438 U.S. at 280 n.14. Federal

contractors don’t need to prove that they will win the

contract if the challenged policy is enjoined. See Assoc’d Gen. Contractors, 508 U.S. at 658. And

businesses don’t need to show that they’d secure a real

estate purchase but for an unlawful regulation. See

Clinton, 524 U.S. at 432-33. The injury in these cases

is the loss of a fair playing field. And that’s no less an

injury in elections. Mecinas, 30 F.4th at 899.

III.

The Seventh Circuit’s reasoning would

force disputes over election rules into

post-election litigation.

The Seventh Circuit suggested that Bost might be

able to establish standing by suing close enough to an

election to predict “a material effect” on the final tally.

Pet. App. 14a. Once voters have “requested mail-in

ballots” and the “the voting process” has “started,”

that should be close enough, the court said. Pet. App.

15a. That narrow exception to pre-election standing is

just as made-up as the Seventh Circuit’s “predict the

results” test. And it directly contradicts this Court’s

precedents.

By requiring Bost to bring his case after the voting

process has already “started,” Pet. App. 15a, the Seventh Circuit encourages precisely the kind of lawsuit

this Court condemned in Purcell v. Gonzalez, 549 U.S.

1, 5-6 (2006) (per curiam). 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.” Merrill, 142 S. Ct. at 880-81 (2022) (Kavanaugh, J., concurral). This principle “discourages

last-minute litigation and instead encourages litigants to bring any substantial challenges to election

rules ahead of time.” Wis. State Legislature, 141 S. Ct.

28, 31 (2020) (Kavanaugh, J., concurral).

Yet the Seventh Circuit’s ruling requires candidates to bring late-breaking challenges to election

laws to establish standing. Under the Seventh Circuit’s reasoning, unless voting has already “started,”

a candidate’s allegations of competitive injury are too

“speculative” and not “certainly impending.” Pet. App.

15a. Worse still, the candidate must present evidence

that judicial relief would have a “material effect” on

the election as it’s happening. Pet. App. 15a. Even setting the Purcell principle aside, as a practical matter

there might be “simply not enough time at [that] late

date to decide the question before the election.” Republican Party of Pa. v. Boockvar, 141 S. Ct. 1, 2

(2020) (statement of Alito, J., respecting the denial of

motion to expedite).

For good reason, Purcell prohibits that “[l]ate judicial tinkering with election laws.” Merrill, 142 S. Ct.

at 880-81 (Kavanaugh, J., concurral). This Court has

“repeatedly emphasized” that federal courts “ordinarily should not alter state election laws.” RNC v. DNC,

589 U.S. 423, 424 (2020). “Changes” to election laws

that “require complex or disruptive implementation

must be ordered earlier” than before the period in

which voting starts. Merrill, 142 S. Ct. at 881 n.1 (Kavanaugh, J., concurral). The Seventh Circuit’s ruling

categorically bars candidates from bringing election

cases before voting starts. Pet. App. 15a. If candidates

have standing to challenge the illegal structuring of

their election contests only during the Purcell period,

they have no standing at all.

The Seventh Circuit’s ruling puts Bost in an untenable position. File before voting “start[s],” and his

case will be dismissed as “speculative.” Pet. App. 15a.

File after voting starts, and relief will be barred by

Purcell. That Catch-22 doesn’t foster “confidence in

the fairness of the election.” Wis. State Legislature,

141 S. Ct. at 31 (Kavanaugh, J., concurral).

The end result will be more post-election litigation—precisely the kinds of election cases that federal

courts are “ill equipped” to decide. Republican Party

of Pa. v. Degraffenreid, 141 S. Ct. 732, 735 (2021)

(Thomas, J., dissenting from the denial of certiorari).

The best time for federal courts to take up cases to ensure that the rules of the road for an election are clear

and settled is “before [each] federal election cycle.” Id.

at 737 (emphasis added). The Seventh Circuit’s decision deprives candidates of that opportunity. By doing

so, it would “severely damage the electoral system”

and undermine the effective functioning of the federal

courts. Id.

First, post-election judicial review of election rules

invites “competing candidates” to “each declare victory under different sets of rules” on election night. Id.

at 734. That kind of dispute “sow[s] confusion and ultimately dampen[s] confidence in the integrity and

fairness of elections.” Id. If candidates don’t have

standing to secure judicial resolution of the rules of

their election before the “voting process” starts, Pet.

App. 11a, then “one candidate” can claim “victory”

under one “rule” while a “second candidate” can claim

victory “under the contrary rule,” Cf. Degraffenreid,

141 S. Ct. at 735. Count the votes, then go to court to

see which votes really do count is “not a prescription

for confidence,” id., which is “essential to the functioning” of American democracy, Purcell, 549 U.S. at 4. It

“leave[s] election law hidden beneath a shroud of

doubt.” Degraffenreid, 141 S. Ct. at 738.

Second, “postelection litigation is truncated by

firm timelines.” Id. at 735. In Illinois, election results

must be certified within 31 days after the election, and

sooner if all the returns are received. 10 Ill. Comp.

Stat. §5/22-7. “Five to six weeks for judicial testing is

difficult enough for straightforward cases. For factually complex cases, compressing discovery, testimony,

and appeals into this timeline is virtually impossible.”

Degraffenreid, 141 S. Ct. at 735. It is thus “highly desirable to issue a ruling on the constitutionality of”

election rules “before the election.” Boockvar, 141 S.

Ct. at 2 (statement of Alito, J., respecting the denial

of motion to expedite).

Truncated postelection litigation “imposes especially daunting constraints when combined with the

expanded use of mail-in ballots.” Degraffenreid, 141 S.

Ct. at 735. Illinois’ post-election mail-ballot receipt

deadline means that all the votes won’t even be returned until 17 days before certification is required.

10 Ill. Comp. Stat. §§5/19-8(c), 5/18A-15(a) (allowing

mail-ballot receipt up to 14 days after election day). If

upheld, the Seventh Circuit’s decision would impose a

heavy burden on federal courts by effectively requiring them to decide all election-rule challenges after

the election.

Third, “postelection litigation sometimes forces

courts to make policy decisions that they have no business making.” Degraffenreid, 141 S. Ct. at 736. For

example, what is the proper post-election remedy if

Bost prevails on the merits, and scores of Illinois’ mail

ballots were counted in violation of federal law? In

that situation, Illinois would have “improperly

changed the rules” for mail-ballot “receipt deadlines”

but voters would have “already relied on that change,”

and the federal court would be required to “choose between potentially disenfranchising a subset of voters”

or “enforcing the election provisions” of federal law.

Id. “Settling rules well in advance of an election rather

than relying on postelection litigation ensures that

courts are not put in that untenable position.” Id. at

737.

Adopting the Seventh Circuits’ standing rule

would be bad for the courts and bad for the country. It

would prevent the federal judiciary from “us[ing]

available cases outside” of postelection litigation to

address the “admittedly important questions” raised

by candidate challenges to the election rules under

which they must compete. Id.

CONCLUSION

This Court should reverse the Seventh Circuit’s

judgment.

Respectfully submitted,

/s/ Thomas R. McCarthy