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 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 10 OTHER STATES

IN SUPPORT OF PETITIONERS

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae .................... 1

Summary of Argument ........................................................ 3

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

I.

Representative Bost was injured when he

was forced to spend more on pollwatching ............... 4

II.

Representative Bost was injured when he

was forced to run in an election with a less

accurate vote tally ..................................................... 10

Conclusion ........................................................................... 14

II

TABLE OF AUTHORITIES

Page(s)

Cases

Becker v. FEC,

230 F.3d 381 (1st Cir. 2000) ........................................... 9

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) ......................................................... 2

Carney v. Adams,

592 U.S. 53 (2020) ......................................................... 12

Carson v. Simon,

978 F.3d 1051 (8th Cir. 2020) ....................................... 10

Castro v. Scanlan,

86 F.4th 947 (1st Cir. 2023) .......................................... 11

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ......................................................... 7

Collins v. Yellen,

594 U.S. 220 (2021) ......................................................... 4

Czyzewski v. Jevic Holding Corp.,

580 U.S. 451 (2017) ......................................................... 5

Diamond Alt. Energy, LLC v. EPA,

145 S. Ct. 2121 (2025) ................................................... 14

Eu v. San Fran. Cnty. Democratic Cent.

Comm.,

489 U.S. 214 (1989) ......................................................... 1

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978) ..................................................... 4, 9

Gallagher v. N.Y. State Bd. of Elections,

477 F. Supp. 3d 19 (S.D.N.Y. 2020) ............................ 11

III

Hotze v. Hudspeth,

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

Lance v. Coffman,

549 U.S. 437 (2007) ................................................. 12, 13

League of United Latin Am. Citizens,

Dist. 19 v. City of Boerne,

659 F.3d 421 (5th Cir. 2011) ......................................... 13

Ex parte Levitt,

302 U.S. 633 (1937) ....................................................... 12

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ....................................................... 12

Mecinas v. Hobbs,

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

Merrill v. Milligan,

142 S. Ct. 879 (2022) ..................................................... 13

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ......................................................... 7

Purcell v. Gonzalez,

549 U.S. 1 (2006) ........................................................... 13

Remijas v. Neiman Marcus Grp., LLC,

794 F.3d 688 (7th Cir. 2015) ........................................... 7

Republican Nat’l Comm. v. Wetzel,

120 F.4th 200 (5th Cir. 2024) ....................................... 10

Shays v. FEC,

414 F.3d 76 (D.C. Cir. 2005) ........................................ 11

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ......................................................... 2

Trump v. Wis. Elections Comm’n,

983 F.3d 919 (7th Cir. 2020) ......................................... 11

IV

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021) ......................................................... 5

Va. House of Delegates v. Bethune-Hill,

587 U.S. 658 (2019) ......................................................... 4

Wise v. Circosta,

978 F.3d 93 (4th Cir. 2020) ............................................. 3

Other Authorities

Alexander Burns & Jonathan Martin,

Once a Long Shot, Democrat Doug

Jones Wins Alabama Senate Race,

N.Y. TIMES (Dec. 12, 2017) ............................................ 9

Ben Cady & Tom Glazer,

Voters Strike Back: Litigating Against

Modern Voter Intimidation,

39 N.Y.U. REV. L. & SOC. CHANGE 173

(2015) ................................................................................ 8

Craig J. Herbst,

Redrawing the Electoral Map:

Reforming the Electoral College with

the District-Popular Plan,

41 HOFSTRA L. REV. 217 (2012) .................................... 6

EDWARD H. COOPER,

FED. PRAC. & PROC. JURIS.

(3d ed. 2025) .................................................................. 10

Exec. Order No. 14248,

Preserving and Protecting the

Integrity of American Elections,

90 Fed. Reg. 14,005 (Mar. 25, 2025).............................. 9

V

Geoffrey Sheagley & Mollie J. Cohen,

Watchers at the Polls,

MIT ELECTION DATA + SCI. LAB

(Aug. 31, 2021)................................................................. 8

Kaleigh Rogers,

Even A Losing Presidential Campaign

Can Have Benefits,

ABC NEWS (Feb. 15, 2024, 2:53 PM)............................ 6

Matt Cohen,

Poll Watching Is a Crucial Part of

Elections—How Did It Become

Controversial?,

DEMOCRACY DOCKET (Oct. 18, 2024) ............................ 8

Michael T. Morley,

Election Emergencies: Voting in Times

of Pandemic,

80 WASH. & LEE L. REV. 359 (2023) ............................. 2

Miriam Seifter & Adam B. Sopko,

Standing for Elections in State Courts,

2024 U. ILL. L. REV. 1571 (2024) ................................... 2

Peter Biello,

Poll Watcher vs. Poll Observer: What’s

the Difference?,

GA. PUB. BROAD.

(Oct. 24, 2024, 4:33 PM) ................................................. 8

Peter N. Salib & Guha Krishnamurthi,

Post-Election Litigation and the

Paradox of Voting,

3/10/2021 U. CHI. L. REV. ONLINE 1

(2021) ................................................................................ 6

VI

Philip B.K. Potter,

Electoral Margins and American

Foreign Policy,

57 INT’L STUD. Q. 505 (2013) ......................................... 6

Rebecca Green,

Adversarial Election Administration,

101 N.C. L. REV. 1077 (2023) ......................................... 8

Rebecca Green,

Election Observation Post-2020,

90 FORDHAM L. REV. 467 (2021) ................................... 7

Richard L. Hasen,

The Untimely Death of Bush v. Gore,

60 STAN. L. REV. 1 (2007) .............................................. 2

Saul Zipkin,

Democratic Standing,

26 J.L. & POL. 179 (2011) ............................................... 4

Steven J. Mulroy,

Baby & Bathwater: Standing in

Election Cases After 2020,

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

INTRODUCTION

AND INTERESTS OF AMICI CURIAE

Election integrity comes in many shapes and forms. It

might be seen in state laws that ensure votes are cast and

counted accurately and timely. It might arise through the

candidates’ own efforts to police the process. Or it might

be ensured through lawsuits that make sure everything is

done straight up and square. But no matter the form,

States—and our society—have “a compelling interest in

preserving the integrity of [our] election process[es].” Eu

v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 231

(1989).

The decision below minimized that interest.

Representative Michael Bost (alongside two Republican

presidential electors) sought to challenge an Illinois

election law that directly affected him—one that greenlit

the state to count mail-in votes received long after

Election Day. He sued. But the Seventh Circuit turned

him away, somehow reasoning that a candidate actively

running for election—and spending substantial funds on

the same—had no standing to challenge the rules that

govern that same election. The lower court deemed his

claimed injuries “speculative,” Pet.App.15a, holding,

among other things, that the extended poll-watching

efforts that Illinois’s law compelled Representative Bost

to undertake weren’t necessary at all, id. at 11a.

The Seventh Circuit erred by shrinking the window of

election-related standing to a pinhole. By prognosticating

on the usefulness of Representative Bost’s poll-watching

efforts, the court recast itself as a political strategist. It

was also wrong in its assessment—on-the-ground

experience shows that poll-watching matters. And by

reducing a candidate’s interest in elections to a mere win-

2

or-lose proposition, the Seventh Circuit lost sight of how

candidates care about fair elections for reasons beyond

just winning. Even a runaway winner like Representative

Bost has an interest in seeing every electoral rule is

scrupulously followed, in part because “the fairness of

elections” drives “the perceived legitimacy of the

announced outcome.” Brnovich v. Democratic Nat’l

Comm., 594 U.S. 647, 672 (2021).

Make no mistake: Amici States care about standing,

and its requirements still matter in election cases. Cf.

Miriam Seifter & Adam B. Sopko, Standing for Elections

in State Courts, 2024 U. ILL. L. REV. 1571, 1575 (2024)

(describing careful balancing that must be undertaken in

evaluating standing in election cases); but see Richard L.

Hasen, The Untimely Death of Bush v. Gore, 60 STAN. L.

REV. 1, 37 (2007) (suggesting that courts should

“encourage litigation well before elections” to prevent

more problematic post-election litigation). The States

aren’t arguing “that the concrete-harm requirement be

ditched altogether.” TransUnion LLC v. Ramirez, 594

U.S. 413, 429 (2021).

But rigorously imposing a standing requirement is not

the same as using the concept as a cover for opting out of

the business of evaluating the lawfulness of elections

altogether. “Unnecessarily aggressive application of

standing doctrines makes it harder for courts to grant

relief when election officials do not go far enough to

address election [problems].” Michael T. Morley, Election

Emergencies: Voting in Times of Pandemic, 80 WASH. &

LEE L. REV. 359, 423 (2023). And it can “disable[] courts

from serving as a check to ensure both the validity of

election officials’ acts and equitable treatment for all

members of the electorate.” Id. The States have no

interest in seeing that happen. So while courts need not

3

blind themselves to the “proliferation of pre-election

litigation,” and should “repair[] to state legislative intent”

to stem that tide, Wise v. Circosta, 978 F.3d 93, 105 (4th

Cir. 2020) (Wilkinson & Agee, JJ., dissenting), they should

also not twist standing rules in their haste to dispense with

election suits.

The Court should thus reverse, as the Seventh Circuit

did some twisting here. In rectifying that error, the Court

should speak directly to those courts that have more

recently been “too cavalierly dismissing legitimate claims

of standing, confusing standing questions with merits

questions, or both.” Steven J. Mulroy, Baby & Bathwater:

Standing in Election Cases After 2020, 126 DICK. L. REV.

9, 13 (2021). Now is the time to turn that trend back—and

remind courts that election cases don’t merit special

hostility when it comes to standing.

SUMMARY OF ARGUMENT

I. Pocketbook injury is a classic basis for standing.

That rule should apply here. Because of Illinois’s law,

Representative Bost was forced to spend more money on

poll-watching. In rejecting that expenditure, the majority

below inappropriately imposed its own ideas of what

comprises a proper political campaign. And it wrongly

imposed a second-order requirement that candidates

must show they would have suffered an election loss if

they didn’t spend the money.

II. Candidate standing should also support lawsuits

like these. Lower courts have already recognized

competitive injuries can support election suits. And a

competitive injury can be more than an outright election

loss. Votes matter in all kinds of ways, even if they don’t

end up changing the bottom-line result. Candidates have

a cognizable interest in accurate vote tallies.

4

ARGUMENT

“If standing doctrine and election law were people,

they would not be friends.” Saul Zipkin, Democratic

Standing, 26 J.L. & POL. 179, 180 (2011). That strained

relationship might be because standing law tends to focus

on individualized injuries, while election law often turns on

more disparate ones. Id.

This disconnect has perhaps all too often led to

confused decisions in federal courts. Sometimes, courts

stretch the standing doctrine too far. Other times (and

perhaps more often recently), the pendulum swings the

other way: courts construe standing so narrowly as to

make it very nearly impossible to bring an election-related

claim. The latter happened here.

The Court can use this case to bring a measure of peace

to the forced marriage between standing and election law.

It can do so in a couple ways. First, by clarifying that an

election law cognizably injures a candidate when the law

makes the election costlier for candidates, as Illinois’s law

did here for Representative Bost. See Va. House of

Delegates v. Bethune-Hill, 587 U.S. 658, 671 (2019)

(reserving question). And second, by clarifying that an

election law cognizably injures a candidate when it

competitively injures him or her—even if it can’t be shown

that the law would swing the election. Both rules would

still impose real limits on standing while also leaving room

for appropriate challenges to be brought.

I.

Representative Bost was injured when he was

forced to spend more on poll-watching.

A. Representative Bost has asserted standing based

on the classic legal injury: a monetary one. “[P]ocketbook

injury is a prototypical form of injury in fact.” Collins v.

5

Yellen, 594 U.S. 220, 243 (2021). “[A] loss of even a small

amount of money is ordinarily an ‘injury.’” Czyzewski v.

Jevic Holding Corp., 580 U.S. 451, 464 (2017). Even a

dollar can do. See Uzuegbunam v. Preczewski, 592 U.S.

279, 292 (2021).

Representative Bost would incur costs because of

Illinois’s law extending receipt and tallying of votes past

Election Day. For example, candidates must keep

running get-out-the-vote programs for mail-in ballots

through Election Day, rather than ending them a little

while before and shifting attention elsewhere. But

perhaps of more interest to the States, “Representative

Bost [also] ha[s] to recruit, train, assign, and coordinate

poll watchers” in all 34 counties in his district “and keep

his headquarters open an additional two weeks.”

Pet.App.16a (Scudder, J., dissenting). He has explained

that “many of the[] late-arriving ballots have

discrepancies (e.g. insufficient information, missing

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

Id. at 20a. Poll-watching helps resolve these problems.

The majority below thought it wasn’t Illinois law that

led to Representative Bost’s poll-watching costs, but

rather his own “choice to expend resources to avoid a

hypothetical future … electoral defeat.” Pet.App.11a.

And the majority reasoned that Representative Bost

hadn’t shown any real prospect of a loss considering how

he had won past elections by substantial margins, so his

money was being spent in support of an unsubstantiated

fear.

Id.

That view ignores, of course, how

Representative Bost’s poll-watching in past years might

have helped produce his big margins. No matter. The

harm was said to be speculative anyway. Id.

B. But Representative Bost had more reason than a

potential election loss to invest in poll-watching and keep

6

his campaign rolling post-Election Day. Every vote serves

an important function for candidates—no matter what the

ultimate outcome might be.

For winning candidates, more votes might mean a

stronger mandate to implement the candidate’s preferred

agenda, better positioning in elections down the road, less

opposition, positive media coverage, and perhaps even

down-ballot sway. See, e.g., Craig J. Herbst, Redrawing

the Electoral Map: Reforming the Electoral College with

the District-Popular Plan, 41 HOFSTRA L. REV. 217, 231

(2012) (describing how higher margins of victory can

provide “candidate legitimacy as well as political capital,”

along with the appearance of “general acceptance”). More

votes might also head off a post-election litigation

challenge. See Peter N. Salib & Guha Krishnamurthi,

Post-Election Litigation and the Paradox of Voting,

3/10/2021 U. CHI. L. REV. ONLINE 1, 8 (2021). Perhaps

because of some or all of these effects, higher margins of

victory can even cause substantive shifts in policy, as has

been documented in the foreign-policy realm. See Philip

B.K. Potter, Electoral Margins and American Foreign

Policy, 57 INT’L STUD. Q. 505, 505 (2013), https://tinyurl.

com/3z9pvzhw.

For losing candidates, more votes might mean more

credibility and viability in future elections, more influence

within the party, greater strength and legitimacy for the

party itself (especially for third-party candidates), issue

amplification, and moral victory. See, e.g., Kaleigh

Rogers, Even A Losing Presidential Campaign Can

Have Benefits, ABC NEWS (Feb. 15, 2024, 2:53 PM),

https://tinyurl.com/ycryfh9p. A tighter margin might put

a broader recount effort within reach.

And an

unexpectedly strong showing—even in a losing effort—

7

might be enough to run off a political rival (as often

happens, for instance, in presidential primaries).

Either way, the relevant risk here is not the risk of an

outright election loss. Rather, the pivotal risk—the one

that supports standing—is the risk of a miscast vote and

the resultant loss of the value it carries.

That risk is real, especially considering Representative

Bost’s observations on the higher rate of “deficiencies”

among late-breaking ballots. So it’s no wonder that

candidates would spend funds to ensure that each one is

properly recorded. That reasonable effort should be

enough to find standing. Cf. Monsanto Co. v. Geertson

Seed Farms, 561 U.S. 139, 154 (2010) (finding standing

based on efforts to “minimize the likelihood of potential”

harm, even if that harm never came to fruition). It’s

certainly enough to distinguish this case from one like

Clapper v. Amnesty International USA, 568 U.S. 398, 415

(2013), contra Pet.App.10a-11a, where the claimed harm

was “based on something that may not even have

happened to some or all of the plaintiffs,” Remijas v.

Neiman Marcus Grp., LLC, 794 F.3d 688, 694 (7th Cir.

2015).

C. Real-world facts confirm poll-watching and ballot

challenging is a reasonable effort to address a genuine

risk.

“Virtually all states have election observation [and pollwatching] statutes, and though rules differ on who is

allowed to see what, all share the same motivation: to

provide an avenue of transparency in the process to

ensure that candidates and the public accept the result.”

Rebecca Green, Election Observation Post-2020, 90

FORDHAM L. REV. 467, 468–69 (2021). For candidates,

poll-watching ensures that disputes about votes on the

8

fringes get resolved in the right way. See Rebecca Green,

Adversarial Election Administration, 101 N.C. L. REV.

1077, 1112 (2023). Watchers act as “the eyes and ears of

the candidates and the campaigns in each individual

polling place.” Peter Biello, Poll Watcher vs. Poll

Observer: What’s the Difference?, GA. PUB. BROAD. (Oct.

24, 2024, 4:33 PM), https://tinyurl.com/3pjtx5yt.

Reasons like these explain why “[p]oll watching is a

longstanding, crucial,” and “routine part of U.S.

elections.” Matt Cohen, Poll Watching Is a Crucial Part

of Elections—How Did It Become Controversial?,

DEMOCRACY DOCKET (Oct. 18, 2024), https://tinyurl.com/

mryvvuvx. Candidates and parties most always include

them as part of their strategy; “[f]or example, President

Trump’s campaign emphasized the importance of

recruiting poll watchers to ensure that the election was

conducted fairly.” Geoffrey Sheagley & Mollie J. Cohen,

Watchers at the Polls, MIT ELECTION DATA + SCI. LAB

(Aug. 31, 2021), https://tinyurl.com/53a3j96f. “[W]ellorganized political campaigns” “recruit[]” these

watchers—“often lawyers”—and provide “some form of

campaign-sponsored training on the state’s election laws

and procedures.” Ben Cady & Tom Glazer, Voters Strike

Back: Litigating Against Modern Voter Intimidation, 39

N.Y.U. REV. L. & SOC. CHANGE 173, 217 (2015).

Representative Bost’s campaign employs these routine

measures through the extended vote-casting period, but

the Seventh Circuit declared his efforts needless unless he

showed a close race was likely. It saw no such likelihood

here because Representative Bost had won by wide

spreads in past elections. But that view embraces two

serious errors in judgment. For one, it assumes that

election prognostication is a science, not an art. Guessing

that a poll-watcher might not make any electoral

9

difference merely because elections have been runaways

in the past ignores how seats can swing quickly and

unexpectedly. See, e.g., Alexander Burns & Jonathan

Martin, Once a Long Shot, Democrat Doug Jones Wins

Alabama Senate Race, N.Y. TIMES (Dec. 12, 2017),

https://tinyurl.com/4wtncr49 (describing how a Democrat

won an Alabama Senate seat that had been previously won

by a Republican who won with more than 97% of the vote);

see

also

Cntr.For.Elec.Confidence.Amicus.Br.14

(collecting similar examples). “[P]ast is not prologue for

political candidates.”

Pet. App.19a (Scudder, J.,

dissenting). For another, the lower court recast itself as a

political strategist, dismissing evidence in the record in

favor of its own instincts about what is and is not necessary

spending in a political campaign. But as Judge Scudder

said below, “federal courts should be wary of labelling

such practices speculative, particularly when included in

the longstanding and successful election of a sitting

member of Congress.” Id. And as the First Circuit has

recognized, “[t]o probe” into a candidate’s assertion that

he or she “ha[s] to adjust [his or] her campaign to account”

for an expected consequence of a challenged election law

“would require the clairvoyance of campaign consultants

or political pundits.” Becker v. FEC, 230 F.3d 381, 387 (1st

Cir. 2000).

The opinion below also bespeaks hostility to election

integrity measures unless they’ve been shown to be

absolutely necessary. But that’s wrong. “Preserving the

integrity of the electoral process, preventing corruption,

and ‘sustaining the active, alert responsibility of the

individual citizen in a democracy for the wise conduct of

government’ are interests of the highest importance.”

First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 788-89,

(1978). As President Trump has recognized, “elections

must be honest and worthy of the public trust.” Exec.

10

Order No. 14248, Preserving and Protecting the Integrity

of American Elections, 90 Fed. Reg. 14,005, 14,006 (Mar.

25, 2025). And ensuring that honesty requires methods

and measures “that protect Americans’ voting rights and

guard against dilution by illegal voting, discrimination,

fraud, and other forms of malfeasance and error.” Id. at

14,005. So federal courts should not be so quick to dismiss

election-integrity measures as meaningless, self-inflicted,

and costly measures. They are vital.

Representative Bost’s spending on additional pollwatching necessitated by the Illinois statute should give

him standing to challenge the law.

II.

Representative Bost is injured when he is forced

to run in an election with an inaccurate vote

tally.

The Seventh Circuit was also too quick to dismiss

another basis for standing—a candidate’s interest in

participating in a fair election. In the usual case,

“[e]lectoral interests” mean “[c]andidates … achieve

standing without difficulty.” 13A EDWARD H. COOPER,

FED. PRAC. & PROC. JURIS. § 3531.4 (3d ed. 2025); cf.

Republican Nat’l Comm. v. Wetzel, 120 F.4th 200, 205 n.3

(5th Cir. 2024) (noting how no party had questioned a

political party’s standing to challenge a similar law

allowing mail-in votes received after election day to be

counted, “presumably because th[e] case fit[] comfortably

within [the Fifth Circuit’s standing] precedents”). The

Seventh Circuit wrongly thought otherwise here.

A. Representative Bost is injured when Illinois

allegedly counts votes that should not be counted under

federal law. Counting invalid votes makes the vote tally

inaccurate. And “[a]n inaccurate vote tally is a concrete

and particularized injury to candidates.” Carson v.

11

Simon, 978 F.3d 1051, 1058 (8th Cir. 2020). Even the

Seventh Circuit had effectively recognized as much

before, as when it found that “a candidate for elected

office” was personally affected by “the allegedly unlawful

manner by which [a state] appointed its electors.” Trump

v. Wis. Elections Comm’n, 983 F.3d 919, 924 (7th Cir.

2020). Again: that’s because of the interests embodied in

each vote (and elector). See supra Part I.B. Votes have

signaling value and more beyond the final win-or-lose call.

An inaccurate vote tally could deprive the candidate of a

“clear mandate,” weaken “the candidate’s political hand,”

or deprive the candidate of the “information interest”

inherent in each vote. Gallagher v. N.Y. State Bd. of

Elections, 477 F. Supp. 3d 19, 36 (S.D.N.Y. 2020).

This idea—that candidates have standing in elections

cases—is merely a logical extension of the notion that

competitors in a field have the right to challenge unlawful

rules governing that field. “[W]hen regulations illegally

structure a competitive environment—whether an agency

proceeding, a market, or a reelection race—parties

defending concrete interests (e.g., retention of elected

office) in that environment suffer legal harm under Article

III.” Shays v. FEC, 414 F.3d 76, 87 (D.C. Cir. 2005). So a

“direct and current competitor” will have standing if a rule

affects the “‘conduct of [the candidate’s] campaign.’”

Castro v. Scanlan, 86 F.4th 947, 954-55 (1st Cir. 2023); see

also, e.g., Mecinas v. Hobbs, 30 F.4th 890, 898 (9th Cir.

2022) (“If an allegedly unlawful election regulation makes

the competitive landscape worse for a candidate … than it

would otherwise be if the regulation were declared

unlawful, those injured parties have the requisite

concrete, non-generalized harm to confer standing.”). Of

course, that’s exactly what Representative Bost says has

happened here.

12

B. The Seventh Circuit mistakenly relied on a single

inapplicable case—Lance v. Coffman, 549 U.S. 437

(2007)—to dismiss Representative Bost’s interest. Lance

involved a claim by four voters that Colorado was not

complying with the U.S. Constitution’s Elections Clause.

Id. at 441. The Court characterized this complaint as an

“undifferentiated, generalized grievance about the

conduct of government.” Id. at 442. A harm is rightly

labelled “generalized” when it affects “every citizen’s

interest.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 573

(1992).

But the differences between this case and Lance should

be obvious enough. Unlike voters, candidates constitute a

small pool of identifiable individuals whose behavior and

choices are directly shaped by their elections’ rules. Their

injuries are not “common to all members of the public.”

Ex parte Levitt, 302 U.S. 633, 636 (1937); see also Carney

v. Adams, 592 U.S. 53, 60 (2020) (explaining that a plaintiff

had only a “‘generalized grievance’” where his claimed

injury was common to “all citizens of Delaware”). “The

candidate who pours money and sweat into a campaign,

who spends time away from her job and family to traverse

the campaign trail, and who puts her name on a ballot has

an undeniably different—and more particularized—

interest in the lawfulness of the election” and the accuracy

of the count “as compared to the interests of some random

voter.” Hotze v. Hudspeth, 16 F.4th 1121, 1126 (5th Cir.

2021) (Oldham, J., dissenting).

And indeed,

Representative Bost has detailed specific ways in which

Illinois’s law has affected his behavior (for the worse).

Beyond that, a win would benefit him more “directly and

tangibly … than it [would] the public at large.” Lujan, 504

U.S. at 574. In contrast, the Colorado voters were a vast

group of people who are affected only indirectly and

disparately by Colorado’s choice to use courts to draw

13

congressional districts. See, e.g., League of United Latin

Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 430

(5th Cir. 2011) (contrasting Lance with a case where

voters’ actual rights, actions, and options were affected).

Blood, sweat, and tears were absent for them.

The Seventh Circuit was particularly wrong to think

that an inaccurate vote tally was too “speculative” because

Representative Bost’s election was months away.

Pet.App.15a. That’s an odd approach given the Purcell

principle that “the rules of the road must be clear and

settled” by the time “an election is close at hand.” Merrill

v. Milligan, 142 S. Ct. 879, 881-82 (2022) (Kavanaugh, J.,

concurring in grant of application for stays)

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

Early election suits should be encouraged, not punished.

The Seventh Circuit seems to think just the opposite—

trapping candidates between filing too early (dismissal for

lack of standing) and too late (no relief given Purcell).

But even setting that incongruence aside, the Seventh

Circuit could deem this suit “speculative” only by

confusing the injury again. The injury is not the prospect

of a “inaccurate vote tally” in the sense that votes are

simply mistabulated somehow (although Representative

Bost did present evidence about an increased error rate

about the post-Election-Day ballots, Pet.App.20a

(Scudder, J., dissenting)). Rather, the “inaccurate vote

tally” will arise if Illinois is tallying votes after Election

Day when federal law says it can’t. Assuming the

rightness of Representative Bost’s position, the only two

ways an accurate vote tally could occur would be if (a)

Illinois unliterally changed its law or (b) no ballot was

received after Election Day. It’s those two scenarios that

are “speculative,” not Representative Bost’s.

14

C. In the end, standing’s complexities reduce to one

straightforward idea: “plaintiffs must answer a basic

question—‘What’s it to you?’” Diamond Alt. Energy, LLC

v. EPA, 145 S. Ct. 2121, 2133 (2025). In throwing his hat

into the ring, Representative Bost made himself more

than a “bystander.” Id. “Candidates for office spend

money, devote time, and otherwise injuriously rely on

provisions of the Election Code in organizing, funding, and

running their campaigns.” Hotze, 16 F.4th at 1125

(Oldham, J., dissenting).

So their sweat-equity

investment in the electoral system should give them

standing to question the rules of that same system.

Anything else risks an abdication of the judicial role—for

if candidates who invest so much in a race still have no

chance to question its rules’ compliance with federal law,

then it’s hard to imagine who else might.

CONCLUSION

The Court should reverse and remand with

instructions to consider the merits of Plaintiffs’ claims.

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of West Virginia

15

ADDITIONAL COUNSEL

TIM GRIFFIN

Attorney General

State of Arkansas

GENTNER DRUMMOND

Attorney General

State of Oklahoma

JAMES UTHMEIER

Attorney General

State of Florida

ALAN WILSON

Attorney General

State of South Carolina

CHRIS CARR

Attorney General

State of Georgia

MARTY JACKLEY

Attorney General

State of South Dakota

BRENNA BIRD

Attorney General

State of Iowa

LIZ MURRILL

Attorney General

State of Louisiana

ANDREW BAILEY

Attorney General

State of Missouri

MICHAEL T. HILGERS

Attorney General

State of Nebraska