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 OF PROFESSOR MICHAEL T. MORLEY

AND FLORIDA STATE UNIVERSITY

ELECTION LAW CENTER AS AMICI CURIAE

IN SUPPORT OF NEITHER PARTY

_______________

July 29, 2025

Michael T. Morley

Counsel of Record

FLORIDA STATE UNIVERSITY

ELECTION LAW CENTER

425 W. Jefferson Street

Tallahassee, FL 32306

(860) 778-3883

mmorley@law.fsu.edu

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ............................. 1

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

ARGUMENT ............................................................ 6

I. THIS COURT HAS HELD THAT

ORDINARY JUSTICIABILITY

PRINCIPLES MAY NOT FULLY APPLY

TO ELECTION-RELATED CASES ................... 7

II. CANDIDATES SHOULD HAVE

STANDING TO CHALLENGE AN

ELECTION OFFICIAL’S FAILURE TO

PROPERLY APPLY THE LEGAL RULES

GOVERNING AN ELECTION ......................... 15

A. A Candidate Has Standing to Sue

to Enforce the Right to a Legally

Conducted Election ...................................... 16

B. Federal Courts Have Recognized

Plaintiffs’ Standing to Pursue Claims

Based on Risks of Potential Harms ........... 21

III. THE RIGHT TO AN UNDILUTED

VOTE IS AN INDIVIDUALIZED

RIGHT WHICH VOTERS HAVE

STANDING TO ENFORCE ............................ 24

CONCLUSION ....................................................... 30

TABLE OF AUTHORITIES

Cases

Allen v. State Bd. of Elections,

393 U.S. 544 (1969) ........................................... 25

Am. Party of Texas v. White,

415 U.S. 767 (1974) ....................................... 2, 10

Anderson v. Celebrezze,

460 U.S. 780 (1983) ....................................... 2, 10

Anderson v. United States,

417 U.S. 211 (1974) ....................................... 5, 25

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ............................................. 13

Baker v. Carr,

369 U.S. 186 (1962) ................................. 5, 25, 26

Barr v. Galvin,

626 F.3d 99 (1st Cir. 2010) ............................... 11

Baur v. Veneman,

352 F.3d 625 (2d Cir. 2003) ..................... 4, 22-23

Bost v. Ill. State Bd. of Elections,

114 F.4th 634 (7th Cir. 2024) ............ 7, 23-24, 28

Bush v. Gore,

531 U.S. 1046 (2000) ................................ 3, 18-19

Carson v. Simon,

978 F.3d 1051 (8th Cir. 2020) ........................... 18

iii

Caruso v. Yamhill Cnty.,

422 F.3d 848 (9th Cir. 2005) ............................. 12

Catholic Leadership Coalition

of Texas v. Reisman,

764 F.3d 409 (5th Cir. 2014) ............................. 11

Clapper v. Amnesty Int’l, USA,

568 U.S. 398 (2013) ........................................... 23

Corrigan v. City of Newaygo,

55 F.3d 1211 (6th Cir. 1995) ....................... 12, 14

Ex Parte Levitt,

302 U.S. 633 (1937) (per curiam) ..................... 28

FEC v. Akins,

524 U.S. 11 (1998) .................................... 5, 28-29

Flast v. Cohen,

392 U.S. 83 (1968) ......................................... 8, 28

Franks v. Bowman Transp. Co.,

424 U.S. 747 (1976) ........................................... 13

Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167 (2000) ....................................... 3, 13

Gaffney v. Cummings,

412 U.S. 735 (1973) ........................................... 25

Georgia v. United States,

411 U.S. 526 (1973) ........................................... 25

Genesis HealthCare Corp. v. Symczyk,

569 U.S. 66 (2013) ............................................... 8

Gill v. Whitford,

585 U.S. 48 (2018) ............................................. 28

Gladstone, Realtors v. Bellwood,

441 U.S. 91 (1979) ............................................. 22

Hall v. Sec’y, State of Alabama,

902 F.3d 1294 (11th Cir. 2018) ......................... 11

Hendon v. N.C. State Bd. of Elections,

710 F.2d 177 (4th Cir. 1983) ......................... 4, 21

Honig v. Doe,

484 U.S. 305 (1988) ................................. 3, 11, 14

Johnson v. Allsteel, Inc.,

259 F.3d 885 (7th Cir. 2001) ......................... 4, 23

Joyner v. Molford,

706 F.2d 1523 (9th Cir. 1983) ........................... 14

LaRoque v. Holder,

650 F.3d 777 (D.C. Cir. 2011) ........................... 17

Lawrence v. Blackwell,

430 F.3d 368 (6th Cir. 2005) ............................. 12

Linda R.S. v. Richard D.,

410 U.S. 614 (1973) ........................................... 22

Los Angeles v. Lyons,

461 U.S. 95 (1983) ........................................... 2, 8

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................ 3, 16-17, 28

Majors v. Abell,

317 F.3d 719 (7th Cir. 2003) ............................. 12

Mandel v. Bradley,

432 U.S. 173 (1977) (per curiam) ................. 2, 10

Massachusetts v. EPA,

549 U.S. 497 (2007) ........................................... 28

Mazo v. N.J. Sec’y of State,

54 F.4th 124 (3d Cir. 2022) ............................... 13

Moore v. Ogilvie,

394 U.S. 814 (1969) ............................ 2, 3, 8-9, 14

Mtn. States Legal Found. v. Glickman,

92 F.3d 1228 (D.C. Cir. 1996) .................... 4-5, 23

Perkins v. Matthews,

400 U.S. 379 (1971) ........................................... 26

Port Arthur v. United States,

459 U.S. 159 (1982) ........................................... 26

Reynolds v. Sims,

377 U.S. 533 (1964) ............................ 5, 24-26, 28

Rosario v. Rockefeller

410 U.S. 752 (1973) ....................................... 2, 10

S. Pac. Term. Co. v. Interstate

Commerce Comm’n,

219 U.S. 498 (1911) ......................................... 8, 9

Schlesinger v. Reservists

Comm. to Stop the War,

418 U.S. 208 (1974) ........................................... 28

Shays v. FEC,

414 F.3d 76 (D.C. Cir. 2005) .................... 3, 16-17

Soules v. Kuauians for

Nukolii Campaign Comm.,

849 F.2d 1176 (9th Cir. 2005) ....................... 4, 21

Storer v. Brown,

415 U.S. 724 (1974) ............................. 2, 3, 10, 14

Sutton v. St. Jude Med. S.C., Inc.,

419 F.3d 568 (6th Cir. 2005) ......................... 4, 23

Trump v. CASA, Inc.,

145 S. Ct. 2540 (2025) ......................................... 1

Trump v. Wis. Elections Comm’n,

983 F.3d 919 (7th Cir. 2020) ......................... 4, 21

U.S. Parole Comm’n v. Geraghty,

445 U.S. 388 (1980) ........................................... 13

Van Bergen v. Minnesota,

59 F.3d 1541 (8th Cir. 1995) ........................ 12-13

Van Wie v. Pataki,

267 F.3d 109 (2d Cir. 2001) .............................. 12

vii

Warth v. Seldin,

422 U.S. 490 (1975) ........................................... 22

Weinstein v. Bradford,

423 U.S. 147 (1975) ......................................... 2, 8

Wesberry v. Sanders,

376 U.S. 1 (1964) ...................................... 5, 24-26

Constitutional Provisions

U.S. Const. amend. XIV, § 1 .................................. 29

U.S. Const. amend. XVII, § 1 ................................. 29

U.S. Const. art. I, § 5, cl. 1 ..................................... 29

Statutes

2 U.S.C. § 1 ............................................................... 6

2 U.S.C. § 7 ............................................................... 6

3 U.S.C. § 1 ............................................................... 6

10 ILCS § 5/19-1 ....................................................... 6

10 ILCS § 5/19-8 ....................................................... 6

Fla. Stat. § 1004.421 ................................................ 1

viii

Treatises and Other Materials

CONG. GLOBE 28th Cong., 1st Sess. 350 (1844) ....... 6

CONG. GLOBE 42nd Cong., 2nd Sess. 112 (1871) ..... 4

Joshua A. Douglas,

The Power of the Electorate

Under State Constitutions,

76 FLA. L. REV. 1679 (2024) .............................. 20

Richard L. Hasen,

Beyond the Margin for Litigation:

Reforming U.S. Election Administration

to Avoid Electoral Meltdown,

62 WASH. & LEE L. REV. 937 (2005) ............ 19, 21

Samuel Issacharoff & Richard H. Pildes,

Politics as Markets: Partisan Lockups

of the Democratic Process,

50 STAN. L. REV. 643 (1998) .............................. 14

Michael T. Morley,

Election Emergencies: Voting

in Times of Pandemic,

80 WASH. & LEE L. REV. 359 (2023) ....... 15-16, 29

Michael T. Morley, Postponing

Federal Elections Due to

Election Emergencies,

77 WASH. & LEE L.

REV. ONLINE 179 (2020) ................................. 6, 20

Michael T. Morley,

The Scope of Election Litigation,

81 WASH. & LEE L. REV. 1153 (2024) ................ 15

Daniel P. Tokaji, Public and Private

Rights of Action: The Enforcement

of Federal Election Laws,

44 IND. L. REV. 113 (2010) .......................... 14, 15

INTEREST OF AMICI CURIAE1

Professor Michael T. Morley is Sheila M. McDevitt

Professor of Law at the Florida State University

College of Law and Faculty Director of the FSU

Election Law Center. He teaches and writes in the

areas of federal courts, remedies, and election law,

and has an interest in the sound development of these

fields. His work was cited by this Court in Trump v.

CASA, Inc., 145 S. Ct. 2540 (2025).

The FSU Election Law Center was established by the

Florida Legislature to “[c]onduct and promote

rigorous, objective, nonpartisan, evidence-based

research concerning important constitutional,

statutory, and regulatory issues relating to election

law.” Fla. Stat. § 1004.421(2)(a) (2025). It is

empowered to “[p]rovide formal or informal

assistance . . . to governmental entities or officials at

the federal, state, or county levels, concerning

elections or election law, including, but not limited to,

research, reports, public comments, testimony, or

briefs.” Id. § 1004.421(3)(e). The Election Law Center

operates pursuant to academic freedom protections.

Id. § 1004.421(7). Accordingly, the Center’s

arguments and positions should not be attributed to

Florida State University, the FSU College of Law, or

either school’s administration.

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

and no counsel or party other than amici or their counsel made

a monetary contribution intended to fund the preparation or

submission of this brief.

SUMMARY OF ARGUMENT

The Seventh Circuit erred by holding that the

Petitioner candidates lack Article III standing to

bring a pre-election challenge to the rules governing

the elections in which they will be participating.

1. As a threshold matter, this Court has held that

justiciability doctrine does not necessarily apply with

full force in the context of election law disputes.

In general, a moot case may remain justiciable

under the “capable of repetition, yet evading review”

doctrine if, among other things, “the same

complaining party would be subject to the same

[challenged] action again.” Weinstein v. Bradford, 423

U.S. 147, 149 (1975) (emphasis added); Los Angeles v.

Lyons, 461 U.S. 95, 109 (1983). In election-related

cases, however, this Court has held that an otherwise

moot case may remain justiciable so long as the

challenged legal provision will continue to apply to

any candidates or voters in future elections,

regardless of whether the plaintiffs will ever again be

subject to it. See Storer v. Brown, 415 U.S. 724, 737

n.8 (1974); Moore v. Ogilvie, 394 U.S. 814, 816 (1969);

see also Anderson v. Celebrezze, 460 U.S. 780, 784 n.3

(1983); Mandel v. Bradley, 432 U.S. 173, 175 n.1

(1977) (per curiam); Am. Party of Texas v. White, 415

U.S. 767, 770 n.1 (1974); cf. Rosario v. Rockefeller, 410

U.S. 752, 756 n.5 (1973).

Justices Scalia and

O’Connor recognized that some “election law decisions

differ from the body of our mootness jurisprudence . . .

in dispensing with the same-party requirement

entirely, focusing instead upon the great likelihood

that the issue will recur between the defendant and

the other members of the public at large without ever

reaching us.” Honig v. Doe, 484 U.S. 305, 335 (1988)

(Scalia, J., dissenting).

This Court should apply similar flexibility

concerning justiciability in election-related cases to

the injury-in-fact requirement of standing doctrine.

See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 180 (2000). In both cases,

this Court would be facilitating challenges to electionrelated legal provisions to prevent the government

from burdening, manipulating, or unpredictability

impacting

the

electoral

process

through

unconstitutional or otherwise invalid rules. Cf. Moore,

394 U.S. at 815; Storer, 414 U.S. at 737 n.7.

2. Even under traditional justiciability principles,

each candidate has a concrete, particularized interest

in having elections in which he participates comply

with all valid laws and regulations. Shays v. FEC, 414

F.3d 76, 84 (D.C. Cir. 2005). Accordingly, candidates

suffer judicially cognizable injuries when election

officials require them to “compete for office in contests

tainted by [statutorily]-banned practices.” Id. at 85.

Candidates may challenge allegedly invalid electoral

rules “without ‘establishing with any certainty’ that

the challenged rules will disadvantage their . . .

campaigns.” Id. at 91 (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 572 n.7 (1992)).

Allowing candidates to bring pre-election

challenges to allegedly invalid election-related legal

provisions protects them from the “irreparable harm”

of having a “cloud” cast over their potential victory.

Bush v. Gore, 531 U.S. 1046, 1047 (2000) (Scalia, J.,

concurring in grant of stay). Compelling candidates

to instead pursue such challenges after their elections

are held places courts in the difficult position of either

nullifying illegal votes that were cast in accordance

with the rules as they existed at the time of the

election, or upholding an election’s results even

though a dispositive number of votes were determined

to have been cast illegally. It would be far preferable

for a court to instead ensure an election is conducted

in accordance with federal law in the first place.

Relegating candidates to post-election litigation

may also require them to determine and reveal how

certain people voted, violating ballot secrecy.

Limiting candidates to such post-election suits will

also undermine federal courts’ laches doctrine, which

has generally required election-related challenges to

be brought, whenever possible, in advance of an

election precisely to avoid the need for courts to set

aside election results. Trump v. Wis. Elections

Comm’n, 983 F.3d 919, 926 (7th Cir. 2020); see also

Soules v. Kuauians for Nukolii Campaign Comm., 849

F.2d 1176, 1182 (9th Cir. 2005); Hendon v. N.C. State

Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983)

3. Alternatively, a candidate should have standing

to challenge an election-related legal provision when

it authorizes the acceptance of allegedly illegal votes,

creating a risk that such votes will change the

election’s outcome. Courts of appeals “have generally

recognized that threatened harm in the form of an

increased risk of future injury may serve as injury-infact for Article III standing purposes.” Baur v.

Veneman, 352 F.3d 625, 633 (2d Cir. 2003); see also

Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568 (6th

Cir. 2005); Johnson v. Allsteel, Inc., 259 F.3d 885, 888

(7th Cir. 2001); Mtn. States Legal Found. v. Glickman,

92 F.3d 1228, 1234-35 (D.C. Cir. 1996). A plaintiff

candidate has standing to challenge a state’s policy of

accepting and counting allegedly untimely and invalid

votes because that policy creates an increased risk

that the candidate will suffer the harm of losing the

election due to such improper votes.

4. Finally, Petitioners have standing to challenge

Illinois’s deadline in their capacity as voters. Each

eligible voter’s constitutional right to vote is

“individual and personal in nature.” Reynolds v.

Sims, 377 U.S. 533, 561 (1964). This right is violated

when the weight of a person’s vote is diluted by the

acceptance and tallying of fraudulent, illegal, or

otherwise invalid votes. Id. at 555; see also Baker v.

Carr, 369 U.S. 186, 208 (1962); Anderson v. United

States, 417 U.S. 211, 226-27 (1974). Under these

principles, “[t]he right to an honest [count] is a right

possessed by each voting elector, and to the extent

that the importance of his vote is nullified, wholly or

in part, he has been injured . . . .” Anderson, 417 U.S.

at 226-27 (alteration in original; quotation marks and

citation omitted). The fact that most or all eligible

voters in an election suffer the same harm to their

respective personal rights to vote does not transform

their individualized injuries into a single collective

grievance. FEC v. Akins, 524 U.S. 11, 24 (1998).

Accordingly, individual voters have standing to

challenge the inclusion of additional voters within

their congressional or legislative districts. Wesberry

v. Sanders, 376 U.S. 1, 5-6 (1964); Baker, 369 U.S.

at 207. Voters should similarly have standing to

challenge the inclusion of additional voters—

specifically, people who cast allegedly untimely or

otherwise invalid votes—in their elections.

ARGUMENT

“Over the course of nearly seventy years, Congress

established a uniform Election Day [in federal

elections] to combat election fraud by preventing

double voting, reduce burdens on voters, and prevent

results from states with early elections from

influencing voters in other jurisdictions.” Michael T.

Morley, Postponing Federal Elections Due to Election

Emergencies, 77 WASH. & LEE L. REV. ONLINE 179, 215

(2020) [hereinafter, “Morley, Postponing”]. When

states previously held their federal elections on

different dates, political parties engaged in

“pipelaying”: sending groups of men to travel among

various states or counties to cast ballots in multiple

elections. Id. at 184 (citing CONG. GLOBE 28th Cong.,

1st Sess. 350 (1844) (statement of Rep. Duncan)); see

also id. at 199 (discussing concerns about

“‘colonization and repeating among the large central

states’ which held their congressional elections at

different times” (quoting CONG. GLOBE 42nd Cong.,

2nd Sess. 112 (1871) (statement of Rep. Butler))).

The Petitioner candidates in this case contend

that Illinois’s laws governing the return of mail

ballots, 10 ILCS §§ 5/19-1, 5/19-8(c), violates these

federal Election Day statutes, 2 U.S.C. § 7 (Election

Day for U.S. Representatives); 3 U.S.C. § 1 (Election

Day for presidential electors); see also 2 U.S.C. § 1

(Election Day for U.S. Senators). The U.S. Court of

Appeals for the Seventh Circuit dismissed their case

for lack of Article III standing due to the absence of an

injury-in-fact. Bost v. Ill. State Bd. of Elections, 114

F.4th 634, 644 (7th Cir. 2024).

This Court need not determine the validity of

Illinois’s statutory scheme at this time. Rather, the

only issue currently presented is whether the

Petitioner candidates for U.S. House and presidential

elector, see id. at 639, may challenge the validity of

Illinois’s rules without actually having to lose an

election due to allegedly untimely, and therefore

invalid, ballots. The answer is yes: candidates have a

concrete, particularized interest in having the

elections in which they participate be validly

conducted in accordance with all applicable

constitutional provisions, as well as all valid federal

and state laws, regulations, and other policies. Where

a federal statute establishes rules governing an

election, Article III should not prohibit federal

candidates from enforcing them in federal court.

I. THIS COURT HAS HELD THAT ORDINARY

JUSTICIABILITY PRINCIPLES MAY NOT

FULLY APPLY TO ELECTION-RELATED

CASES

As a threshold matter, this Court should address

whether standard justiciability doctrine applies with

full force to election-related cases. This Court has

previously created an exception to mootness doctrine

to facilitate continued litigation of election-related

disputes. This exception allows challenges concerning

election-related legal provisions to remain justiciable

after an election has concluded, even though the

plaintiff neither possesses Article III standing to

challenge that provision in future elections nor

satisfies the usual requirements for the “capable of

repetition, yet evading review” doctrine. If this Court

is willing to adjust mootness doctrine to accommodate

the special context of election-related litigation, it

would be reasonable to apply a comparable approval

to standing doctrine.

1. Standing and mootness are both justiciability

doctrines. Flast v. Cohen, 392 U.S. 83, 95 (1968).

Typically, a moot case is non-justiciable. See Genesis

HealthCare Corp. v. Symczyk, 569 U.S. 66, 69 (2013).

An otherwise moot case may remain justiciable,

however, if the matter is “capable of repetition, yet

evading review.” See S. Pac. Term. Co. v. Interstate

Commerce Comm’n, 219 U.S. 498, 515 (1911). As its

name implies, this exception to the mootness doctrine

is generally “limited to the situation where two

elements combined: (1) the challenged action was in

its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there was a reasonable

expectation that the same complaining party

would be subjected to the same action again.”

Weinstein v. Bradford, 423 U.S. 147, 149 (1975)

(emphasis added). Thus, this exception usually

“applies only in exceptional situations . . . where the

named plaintiff can make a reasonable showing that

he will again be subjected to the alleged illegality.”

Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).

In election-related cases, however, this Court has

applied the capable-of-repetition exception to the

mootness doctrine without regard to whether the

same plaintiffs would ever again be subject to the

challenged legal provisions. For example, in Moore v.

Ogilvie, 394 U.S. 814, 815 (1969), the petitioners were

independent candidates for the office of presidential

elector from the State of Illinois. They argued that the

State had unconstitutionally rejected their petition to

appear on the ballot in the 1968 election. Although

the petition contained enough total signatures, it did

not include at least “200 qualified voters from each of

at least 50 counties.” Id. (quotation marks and

citation omitted).

After the 1968 election had

concluded, the state election board moved to dismiss

on the grounds that there was no longer any

“possibility of granting any relief.” Id. at 816.

This Court nevertheless concluded the case

remained justiciable. It explained that, “while the

1968 election is over, the burden” which the

challenged signature requirement “placed on the

nomination of candidates for statewide offices

remains and controls future elections . . . . The

problem is therefore ‘capable of repetition, yet evading

review.’” Id. (quoting S. Pac. Term. Co., 219 U.S.

at 515). The Court continued, “The need for its

resolution thus reflects a continuing controversy in

the federal-state area where our ‘one man, one vote’

decisions have thrust.” Id.

Unlike a standard application of the capable-ofrepetition exception to mootness doctrine, the Court

did not assess whether the plaintiffs in the suit would

ever again be subject to the challenged statute.

Indeed, the dissenting Justices specifically pointed

out “the absence of any assertion that the appellants

intend to participate as candidates in any future

election.”

Id. at 819 (Stewart, J., dissenting).

Nevertheless, the majority held that the case

remained justiciable solely because the challenged

legal provision would remain generally applicable in

future elections. See id. at 816 (majority op.).

The Court applied the same reasoning in Storer v.

Brown, 415 U.S. 724, 727 (1974). The plaintiffs there

challenged certain restrictions on ballot access for

independent candidates. By the time the Court ruled,

the election had already occurred. It held that the

case nevertheless remained justiciable, explaining:

The 1972 election is long over, and no effective

relief can be provided to the candidates or

voters, but this case is not moot, since the

issues properly presented, and their effects on

independent candidacies, will persist as the

California statutes are applied in future

elections. This is, therefore, a case where the

controversy is capable of repetition, yet evading

review.

Id. at 737 n.8 (quotation marks omitted). Again, this

Court did not assess whether any of the plaintiffs had

expressed an intent to ever run for office again.2

Justices Scalia and O’Connor recognized that some

“election law decisions differ from the body of our

2 See also Anderson v. Celebrezze, 460 U.S. 780, 784 n.3 (1983);

Mandel v. Bradley, 432 U.S. 173, 175 n.1 (1977) (per curiam);

Am. Party of Texas v. White, 415 U.S. 767, 770 n.1 (1974); cf.

Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973) (stating, in a

class action case, “[a]lthough the June primary has been

completed and the petitioners will be eligible to vote in the next

scheduled New York primary, this case is not moot, since the

question the petitioners raise is ‘capable of repetition, yet

evading review’”).

mootness jurisprudence . . . in dispensing with the

same-party requirement entirely, focusing instead

upon the great likelihood that the issue will recur

between the defendant and the other members of the

public at large without ever reaching us.” Honig v.

Doe, 484 U.S. 305, 335 (1988) (Scalia, J., dissenting).

2. A deep and longstanding circuit split exists over

whether this line of authority remains valid. The

Courts of Appeals disagree over whether election law

cases constitute an exception to the same-plaintiff

requirement of the “capable of repetition” exception to

mootness doctrine.

Numerous circuits treat election law cases

differently from other types of cases for mootness

purposes in this respect. For example, the Fifth

Circuit

“‘dispens[es]

with

the

same-party

requirement’ in election law cases, and ‘focus[es]

instead upon the great likelihood that the issue will

recur between the defendant and other members of

the public at large.’” Catholic Leadership Coalition of

Texas v. Reisman, 764 F.3d 409, 424 (5th Cir. 2014)

(quoting Kucinich v. Tex. Democratic Party, 563 F.3d

161, 165 (5th Cir. 2009)). Accordingly, the Fifth

Circuit allows a plaintiff in an election-law case to

invoke the capable-of-repetition exception to mootness

“where (1) the state plans on continuing to enforce the

challenged provision, and (2) that provision will affect

other members of the public.” Id. (emphasis added).

The Sixth Circuit similarly declared, “Even if the

court could not reasonably expect that the controversy

would recur with respect to [the plaintiffs], the fact

that the controversy almost invariably will recur with

respect to some future potential candidate or voter in

Ohio is sufficient” to satisfy the capable-of-repetition

requirement “because it is somewhat relaxed in

election cases.” Lawrence v. Blackwell, 430 F.3d 368,

372 (6th Cir. 2005). The “capable of repetition”

exception to mootness applies in “challenges to

election laws even when the nature of the law made it

clear that the plaintiff would not suffer the same harm

in the future.” Id. Exempting election-related cases

from the same-plaintiff requirement helps ensure that

the government cannot “repeatedly apply” a

challenged provision to “different candidates”—or

voters, parties, and PACs, for that matter—“none of

whom could ever challenge it in court.” Corrigan v.

City of Newaygo, 55 F.3d 1211, 1214 (6th Cir. 1995);

see also Caruso v. Yamhill Cnty., 422 F.3d 848, 853-54

(9th Cir. 2005) (holding that the “capable of

repetition” exception to the mootness doctrine applied

in an election-related case, even though “there is no

evidence in the record” that the plaintiff would be

subject to the challenged statute again); Majors v.

Abell, 317 F.3d 719, 723 (7th Cir. 2003) (“[T]he courts,

perhaps to avoid complicating lawsuits with incessant

interruptions to assure the continued existence of a

live controversy, do not interpret the requirement

literally, at least in . . . election cases . . . .”).

Other circuits, in contrast, reject the notion that

the “same complaining party requirement” is

inapplicable “in the context of election cases.” Hall v.

Sec’y, State of Alabama, 902 F.3d 1294, 1299-1300

(11th Cir. 2018); see also Barr v. Galvin, 626 F.3d 99,

105-06 (1st Cir. 2010) (choosing to “abide by the ‘same

complaining party’ requirement”); Van Wie v. Pataki,

267 F.3d 109, 114-15 (2d Cir. 2001); Van Bergen v.

Minnesota, 59 F.3d 1541, 1546 (8th Cir. 1995); cf.

Mazo v. N.J. Sec’y of State, 54 F.4th 124, 135 (3d Cir.

2022) (applying the same-plaintiff requirement in an

election-related case without considering whether an

exception applies).

Thus, mootness doctrine in

election cases remains somewhat unsettled.

3. Standing doctrine is closely related to mootness.

See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 180 (2000) (“The

Constitution’s case-or-controversy limitation on

federal judicial authority underpins both our standing

and our mootness jurisprudence . . . .” (internal

citation omitted)); see also Franks v. Bowman Transp.

Co., 424 U.S. 747, 753-54 (1976). “Mootness has been

described as ‘the doctrine of standing in a time frame:

The requisite personal interest that must exist at the

commencement of litigation (standing) must continue

throughout its existence (mootness).’” Arizonans for

Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)

(quoting U.S. Parole Comm’n v. Geraghty, 445 U.S.

388, 397 (1980)).

If this Court continues to apply a modified form of

mootness doctrine to cases involving challenges to, or

alleged failures to enforce, election-related rules, the

same considerations would support similarly

broadening standing doctrine in that context, as well.

A candidate participating in an election should have

standing to challenge the rules governing that

election without the need to demonstrate any further

injury-in-fact arising from those rules. This balanced

approach to standing doctrine in the electoral context

helps ensure the government cannot burden,

manipulate, or even just affect in unpredictable ways

the electoral process with unconstitutional or

otherwise invalid rules or requirements. Cf. Moore,

394 U.S. at 815; Storer, 414 U.S. at 737 n.7; Honig,

484 U.S. at 335 (Scalia, J., dissenting).

This broadened approach to standing would also be

responsive to the inherently uncertain nature of the

electoral process, where it is difficult to predict—or

sometimes even retroactively determine—the precise

consequences of many constitutional or statutory

violations. Cf. Corrigan, 55 F.3d at 1214 (discussing

the need to avoid applying justiciability doctrine in a

way that makes it impossible to bring election-related

challenges in court); Joyner v. Molford, 706 F.2d 1523,

1527 (9th Cir. 1983) (declining to apply the sameplaintiff requirement in the “capable of repetition”

analysis in election-related cases because doing so

could mean that “many constitutionally suspect

election laws . . . could never reach appellate review”).

Applying justiciability doctrine more flexibly in

cases involving challenges to, or alleged failures to

enforce, election-related legal provisions also makes

sense because many of those provisions are “designed

to prevent the systematic skewing of elections.”

Daniel P. Tokaji, Public and Private Rights of Action:

The Enforcement of Federal Election Laws, 44 IND. L.

REV. 113, 154 (2010).

Accordingly, the harms

plaintiffs allege often may “only be understood

through their aggregate effect on voters and, more

broadly, on the electoral system as a whole.” Id.

at 154; see also Samuel Issacharoff & Richard H.

Pildes, Politics as Markets: Partisan Lockups of the

Democratic Process, 50 STAN. L. REV. 643, 645 (1998)

(discussing “the difficulty in resting standing to sue on

traditional, individualistic conceptions of harm” in

election cases). Finally, a broader approach to

justiciability allows private plaintiffs to “provide a

check on potential partisanship by DOJ, as well as

state and local election officials.” Tokaji, supra at 157.

Accordingly, just as this Court has been willing to

apply the “capable of repetition” exception to

mootness doctrine flexibly to enable election-related

litigation, so too should it apply the “injury in fact”

requirement for standing doctrine with similar

flexibility to facilitate such cases. Cf. Michael T.

Morley, The Scope of Election Litigation, 81 WASH. &

LEE L. REV. 1153, 1181 (2024) (urging courts to adopt

an approach to standing doctrine in election cases that

“help[s] keep cases manageable; reduce[s] the time,

burden, expense, and complexity of such litigation;

and eliminate[s] the need for case-by-case

adjudication

challenging

yet

tangential

justiciability issues”).

II. CANDIDATES SHOULD HAVE STANDING

CHALLENGE

ELECTION

OFFICIAL’S FAILURE TO PROPERLY

APPLY THE LEGAL RULES GOVERNING

AN ELECTION

Even under a traditional approach to standing

doctrine, Petitioners have standing as candidates to

challenge Illinois’ alleged failure to follow the federal

Election Day statutes for two independent reasons.

First, a candidate suffers a concrete, particularized

injury-in-fact under Article III when the government

conducts an election in which he participates

pursuant to invalid rules. Michael T. Morley, Election

Emergencies: Voting in Times of Pandemic, 80 WASH.

& LEE L. REV. 359, 422 (2023) [hereinafter, “Morley,

Pandemic”] (“[C]ourts should recognize that political

candidates . . . have standing to ensure that the

elections in which they participate are conducted

according to the law.”). Second, a candidate suffers

injury-in-fact from the government’s failure to

properly apply rules adopted to reduce the risk of

election fraud, mistake, or irregularity.

A. A Candidate Has Standing to Sue to

Enforce the Right to a Legally

Conducted Election

1. Most basically, a candidate has a concrete,

particularized right to have the election in which he is

participating be “compliant” with all valid laws.

Shays v. FEC, 414 F.3d 76, 84 (D.C. Cir. 2005).

Accordingly, candidates suffer judicially cognizable

injury when election officials require them to

“compete for office in contests tainted by [statutorily]banned practices.” Id. at 85; see also id. (reiterating

that candidates “suffer legal injury” when government

officials “set the rules of the game in violation of

statutory directives”). Justiciable harm arises when a

candidate “must anticipate and respond to a broader

range of competitive tactics than federal law would

otherwise allow.” Id. at 86.

Moreover, “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.” Id. at 90. Candidates may pursue such

claims “without ‘establishing with any certainty’ that

the challenged rules will disadvantage their . . .

campaigns.” Id. at 91 (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 572 n.7 (1992)). As the U.S.

Court of Appeals for the District of Columbia cogently

explained, “[G]iven the multiplicity of factors bearing

on elections and the extreme political sensitivity of

judgments about what caused particular candidates

to win, requiring candidates to establish that but for

certain campaign finance rules they could have won

an election [is not] reasonable.” Id.; see also LaRoque

v. Holder, 650 F.3d 777, 787 (D.C. Cir. 2011) (holding

a candidate “has no obligation to demonstrate

definitively that he has less chance of victory” under

an allegedly invalid election rule to have Article III

standing to challenge that rule).

This logic applies equally whether, as in Shays,

executive officials adopt regulations which allegedly

fail to adequately enforce a federal law or, as here, a

state law allows conduct (i.e., the ostensibly belated

return, acceptance, and counting of mail ballots) that

federal law allegedly prohibits.

Accordingly, a

candidate who seeks election or reelection in contests

governed by certain legal provisions should have

Article III standing to challenge their validity. Shays,

414 U.S. at 88.

Here, the Petitioner candidates allege the electoral

environment which Illinois law establishes violates

federal law because it permits the belated return of

mail-in ballots. Based on past elections, it is

“inevitable” some voters will take advantage of

Illinois’s deadline and ballots will be counted

pursuant to it.

Petitioners accordingly have a

judicially cognizable interest in litigating the validity

of that deadline, regardless of the likelihood it will

cause them to either lose the election or adjust their

campaign spending in response to it.

2. Recognizing candidates’ judicially enforceable

right to ensure that the elections in which they run

are conducted according to legally valid rules prevents

their potential victories from being tarnished by

claims of illegitimacy or illegality. Following the 2000

presidential election, this Court stayed Florida’s

recount pending its ruling on whether the rules

governing the recount were constitutionally valid.

Bush v. Gore, 531 U.S. 1046, 1046 (2000) (order).

Justice Scalia’s concurrence noted that the Court

would be deciding whether the ballots being recounted

had been “legally cast.” Id. at 1047 (Scalia, J.,

concurring). He explained:

The counting of votes that are of questionable

legality . . . threaten[s] irreparable harm to

petitioner, and to the country, by casting a

cloud upon what he claims to be the legitimacy

of his election. Count first, and rule upon

legality afterwards, is not a recipe for

producing election results that have the public

acceptance democratic stability requires.

Id.; accord Carson v. Simon, 978 F.3d 1051, 1061 (8th

Cir. 2020).

Candidates require standing to bring pre-election

challenges to the rules governing the electoral process

in order to avoid the “irreparable harm” of having a

“cloud” cast over their potential victory. Bush, 531

U.S. at 1047 (Scalia, J., concurring).

Denying

standing here would prevent a candidate from

challenging Illinois’s deadline for mail ballots until an

opponent wins in part based on allegedly untimely

votes of “questionable” validity. Id. Should a plaintiff

candidate prevail in court at that point and obtain a

judicial order overturning the election’s results, it

could “cast[] a cloud” upon the “legitimacy” of his

victory, making “public acceptance” unnecessarily

more difficult and controversial. Id. This Court’s

finding of injury in the context of extraordinary relief

should inform its approach to injury in the Article III

context.

3. Compelling pragmatic considerations support

applying justiciability doctrine to allow candidates to

challenge the conduct of an election before it occurs

whenever possible. First, as Professor Rick Hasen

explains:

A court asked to decide a question of statutory

or constitutional law that affects the outcome of

an already held election is injected in the worst

way into the political thicket. . . . Putting

judges in the position of deciding election law

questions when the winner and loser of its

decision will be obvious can undermine the

legitimacy of the courts.

Richard L. Hasen, Beyond the Margin for Litigation:

Reforming U.S. Election Administration to Avoid

Electoral Meltdown, 62 WASH. & LEE L. REV. 937, 993

(2005). This is especially true when control of a

chamber of Congress or even the Presidency hinges on

a case’s outcome.

Second, post-election litigation may require courts

to reject ballots that were cast in accordance with the

rules in place at the time the election was conducted,

impacting the constitutional right to vote of the people

who cast them. Alternatively, a court may determine

that a dispositive number of votes were illegally

accepted but refuse to set them aside for equitable

reasons, thereby clouding the legitimacy of the

prevailing candidate’s victory. Both of these

alternatives carry significant drawbacks.

A far

preferable option would be to enable courts to ensure

elections are validly conducted in the first place.

Third, post-election litigation in presidential

elections in particular is subject to strict deadlines

due to constitutional provisions and federal statutes

concerning the Electoral College and the

constitutionally mandated inauguration date.

Morley, Postponing, supra at 193-98. Accordingly,

post-election challenges to the rules governing a

presidential election will be unnecessarily rushed,

harried, conducted on an expedited emergency basis,

and subject to intense public scrutiny and criticism.

Fourth, if candidates must demonstrate prejudice

to establish standing and obtain relief in post-election

litigation, it may require determining and revealing

how particular people voted, undermining the

ubiquitous state-law right to a secret ballot. See

Joshua A. Douglas, The Power of the Electorate Under

State Constitutions, 76 FLA. L. REV. 1679, 1704 (2024)

(“Forty-four state constitutions require a secret ballot

(while the remaining six provide for secret balloting

via legislation).”).

Finally, federal courts have strictly enforced the

laches defense to dismiss post-election federal

lawsuits challenging election results. For example,

the Seventh Circuit rejected one of President Trump’s

attempts to challenge the results of the 2020

presidential election in Wisconsin primarily on laches

grounds. It explained, “The President had a full

opportunity before the election to press the very

challenges to Wisconsin law underlying his present

claims. Having foregone that opportunity, he cannot

now—after the election results have been certified as

final—seek to bring those challenges.” Trump v. Wis.

Elections Comm’n, 983 F.3d 919, 926 (7th Cir. 2020);

see also Soules v. Kuauians for Nukolii Campaign

Comm., 849 F.2d 1176, 1182 (9th Cir. 2005) (holding

that laches barred post-election equal protection

claim); Hendon v. N.C. State Bd. of Elections, 710 F.2d

177, 182 (4th Cir. 1983) (“Courts have imposed a duty

on parties having grievances based on election laws to

bring their complaints forward for pre-election

adjudication when possible.”).

Denying candidates standing to bring pre-election

challenges will likely call much of this laches doctrine

into question. At worst, it will create a Catch-22

where pre-election suits are dismissed for lack of

standing and post-election suits are rejected due to

laches. For these reasons, the legal system should

“encourag[e] preventing harm in elections that would

prove difficult to undo after the fact.” Hasen, supra

at 994.

B. Federal Courts Have Recognized

Plaintiffs’ Standing to Pursue Claims

Based on Risks of Potential Harms

Alternatively, the Petitioner candidates have

adequately pled standing because the challenged

Illinois deadline creates a risk that they may lose an

election based on allegedly untimely, and therefore

invalid, votes. Losing an election based on votes that

are invalid under Federal law would constitute a

concrete, particularized injury-in-fact to a candidate.

And there is no question that at least some Illinois

voters will take advantage of the state’s statutory

deadline by mailing their ballots on, or shortly before,

Election Day. A candidate should not have to wait

until the risk of losing due to such allegedly untimely

votes comes to pass before challenging the deadline’s

validity.

A plaintiff may establish Article III standing by

showing that it is either suffering an “immediate”

injury or instead faces a “threatened” injury “resulting

from [a] putatively illegal action.” Warth v. Seldin,

422 U.S. 490, 499 (1975) (quoting Linda R.S. v.

Richard D., 410 U.S. 614, 617 (1973)); accord

Gladstone, Realtors v. Bellwood, 441 U.S. 91, 99

(1979). “Although [this] Court has yet to speak

directly on this issue, the courts of appeals have

generally recognized that threatened harm in the

form of an increased risk of future injury may serve as

injury-in-fact for Article III standing purposes.” Baur

v. Veneman, 352 F.3d 625, 633 (2d Cir. 2003). That is,

a plaintiff candidate wishing to challenge a state’s

policy of accepting and counting allegedly untimely

and invalid votes need not wait until such votes have

actually cost him an election. Rather, a candidate has

standing to challenge that policy because it creates an

increased risk that the candidate will suffer the harm

of losing due to such allegedly untimely and invalid

votes.

Courts of appeals have applied this principle in a

variety of contexts. See, e.g., Baur, 352 F.3d at 633

(holding that, where “exposure to a potentially

dangerous food product” occurs, the resulting

“enhanced risk of disease transmission may constitute

injury-in-fact”); Sutton v. St. Jude Med. S.C., Inc., 419

F.3d 568 (6th Cir. 2005) (holding a plaintiff had

suffered an injury-in-fact from a medical device

because it created “an increased risk of harm”);

Johnson v. Allsteel, Inc., 259 F.3d 885, 888 (7th Cir.

2001) (holding that an amendment to a pension plan

which increased the plan administrator’s discretion

over its interpretation constituted “injury in fact” to

the plan’s beneficiaries, “whether or not the

administrator ever exercises its discretion adversely

against the insured; the increased risk is itself an

injury”); Mtn. States Legal Found. v. Glickman, 92

F.3d 1228, 1234-35 (D.C. Cir. 1996) (holding that the

plaintiffs had standing to challenge the Government’s

tree-harvesting plan on the grounds it increased the

risk of forest fires in places they hiked and camped).

In this case, in contrast, the Seventh Circuit

dismissed the risk that the plaintiff candidates could

lose an election due to allegedly untimely and invalid

votes as “speculative at best.” Bost, 114 F.4th at 642.

It based this conclusion primarily on this Court’s

ruling in Clapper v. Amnesty Int’l, USA, 568 U.S. 398,

416 (2013). Clapper, however, held that the plaintiffs’

claims arose from “a highly attenuated chain of

possibilities,” each step of which was purely

“speculative.” Id. at 410. Here, in contrast, there is

no serious question that Illinois election officials will

receive mail-in ballots after Election Day that were

either postmarked by that day or contain a signed

certification from the voter.

This creates an

unavoidable risk that election officials may receive a

dispositive number of such ballots. The lengthy,

convoluted chain of assumptions upon which Clapper

rested is absent here. Thus, this Court should

conclude the candidate plaintiffs have standing to

challenge Illinois’s deadline because such ballots pose

a risk of impacting the election’s outcome.

III. THE RIGHT TO AN UNDILUTED VOTE IS

AN INDIVIDUALIZED RIGHT WHICH

VOTERS HAVE STANDING TO ENFORCE

The candidate Petitioners are also registered

Illinois voters. See Bost, 111 F.4th at 640 (explaining

that the plaintiffs argued they were injured “both as

voters in Illinois and as political candidates”). They

independently have standing to attempt to

demonstrate that their legally valid votes are at risk

of dilution from allegedly untimely, and therefore

invalid, ballots.

1. Individual voters suffer concrete, particularized

injury-in-fact from legal provisions, policies, or other

governmental actions that may cause or allow their

legally cast votes to be diluted by allowing invalid or

illegal votes to be accepted and counted.

This Court has recognized that all eligible voters

have the “constitutional right to vote and to have their

votes counted.” Wesberry v. Sanders, 376 U.S. 1, 17

(1964). This right is “individual and personal in

nature.” Reynolds v. Sims, 377 U.S. 533, 561 (1964).

It “can be denied by a debasement or dilution of the

weight of a citizen’s vote just as effectively as by

wholly prohibiting the free exercise of the franchise.”

Id. at 555 Accordingly, a person’s right to vote may

not be “denied outright, nor destroyed by alteration of

ballots, nor diluted by ballot-box stuffing.” Id.

(citations omitted and emphasis added); accord

Wesberry, 376 U.S. at 17; see also Baker v. Carr, 369

U.S. 186, 208 (1962) (“A citizen’s right to vote free of

arbitrary impairment of state action has been

judicially recognized as a right secured by the

Constitution, when such impairment resulted from

dilution by a false tally, or by a refusal to count

votes from arbitrarily selected precincts, or by a

stuffing of the ballot box.” (citations omitted and

emphasis added)); Anderson v. United States, 417 U.S.

211, 226-27 (1974).3

Under these principles, “[t]he right to an honest

[count] is a right possessed by each voting elector, and

to the extent that the importance of his vote is

nullified, wholly or in part, he has been injured . . . .”

Anderson, 417 U.S. at 226-27 (alteration in original;

quotation marks and citation omitted). An “honest

count” necessarily includes only legally valid votes.

A voter may enforce these components of their

right to vote, even though many or all other voters in

the jurisdiction share the same alleged injury to that

right. For example, this Court has permitted

individuals to challenge an expansion to municipal

boundaries because it “enlarge[d] the city’s number of

eligible voters,” which in turn “dilute[d] the weight of

the votes of the voters to whom the franchise was

3 See also Gaffney v. Cummings, 412 U.S. 735, 744, 748 (1973);

Georgia v. United States, 411 U.S. 526, 532-33 (1973); Allen v.

State Bd. of Elections, 393 U.S. 544, 569 (1969).

limited before the annexation.” Perkins v. Matthews,

400 U.S. 379, 388 (1971); see also Port Arthur v.

United States, 459 U.S. 159, 165 (1982). Though this

ruling did not expressly address standing, this Court

recognized that each individual voter would be

harmed by the allegedly improper inclusion and

counting of additional ballots in their elections. The

State of Illinois’s inclusion of allegedly untimely and

invalid ballots in its vote tallies is a similar harm.

Likewise, individuals have standing to challenge

their congressional and legislative districts on the

grounds they are too populous, thereby diluting the

weight of each vote in those districts relative to votes

cast in other, less populated districts in the state.

Baker, 369 U.S. at 207 (holding that plaintiff voters

had standing to challenge legislative districts on the

grounds they caused “arbitrary impairment” of the

weight of their votes); Wesberry v. Sanders, 376

U.S. 1, 5-6 (1964) (holding that plaintiff voters had

standing to challenge “congressional apportionment

laws which debase a citizen’s right to vote” due to the

“power of courts to protect the constitutional rights of

individuals from legislative destruction”); see also

Reynolds, 377 U.S. at 567 (“To the extent that a

citizen’s right to vote is debased, he is that much less

a citizen.”).

In one sense, the inclusion of allegedly untimely,

and therefore invalid ballots in vote tallies debases

the weight of ballots from all voters who cast timely,

valid ballots in the election. Consider a simplified

example of an election with the following results:

Candidate A timely & valid votes: 20

Candidate A untimely votes:

Candidate B timely & valid votes: 16

Candidate B untimely votes:

Candidate C timely & valid votes:

Candidate C untimely votes:

A total of forty (40) timely votes were cast,

meaning each voter’s ballot carried 1/40 of the power

to determine the election’s outcome.

With the

inclusion of allegedly untimely votes, however, a total

of fifty (50) ballots are deemed cast, meaning each

voter’s influence over the election’s outcome is diluted

to 1/50.

Just as annexing more voters into a

municipality or drawing more populous districts

dilutes the weight of each person’s vote, so too would

the acceptance of allegedly untimely and invalid

ballots.

Counting such votes also dilutes the weight of the

votes of people who cast valid ballots for candidates

who wind up losing as a result of those additional

votes in an additional sense. If only timely votes are

counted, a total of either sixteen (16) or seventeen (17)

votes are necessary to prevail, making the votes of

Candidate A’s twenty (20) supporters more than

enough to win. If allegedly untimely and invalid

ballots are also included in the tallies, however, then

a total of either twenty-four (24) or twenty-five (25)

votes are necessary to win. The votes of Candidate A’s

twenty (20) supporters are no longer sufficient to

secure victory; the efficacy of each such person’s vote

has been thereby diluted. Accordingly, this Court

should recognize that voters have Article III standing

to challenge alleged violations of the right to vote

through improper dilution by the acceptance and

tallying of allegedly invalid ballots.

2. The Court of Appeals erred by dismissing the

voters’ claims as nonjusticiable “generalized

grievances.” See Bost, 114 F.4th at 640. This is not a

case where citizens, Lujan, 504 U.S. at 573-74, or

taxpayers, Flast, 392 U.S. at 106, assert only an

undifferentiated

general interest

in having

government officials obey the law. Nor is this a case

where the plaintiffs claim an interest “held in common

by all members of the public.”

Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208, 220

(1974); accord Ex Parte Levitt, 302 U.S. 633, 633

(1937) (per curiam). Rather, the injury at issue is

limited to the rights of eligible voters who choose to

cast timely votes in elections in which officials will

accept and count certain allegedly late ballots in

potential violation of federal law.

“[A] person’s right to vote is ‘individual and

personal in nature.’” Gill v. Whitford, 585 U.S. 48, 66

(2018) (quoting Reynolds, 377 U.S. at 561). The fact

that many, or even all, eligible voters in an election

suffer the same harm to their respective personal

rights to vote does not transform those individualized

injuries into a single collective grievance. FEC v.

Akins, 524 U.S. 11, 24 (1998) (“[W]here a harm is

concrete, though widely shared, the Court has found

injury in fact.” (quotation marks omitted)); see also

Massachusetts v. EPA, 549 U.S. 497, 522 (2007) (“That

these climate-change risks are ‘widely shared’ does

not minimize Massachusetts’ interest in the outcome

of this litigation.”). Indeed, Akins expressly declared

that Article III standing may exist even where “large

numbers of voters suffer interference with voting

rights.” Akins, 524 U.S. at 24. “[B]road application of

the generalized grievance doctrine . . . disables courts

from serving as a check to ensure both the validity of

election officials’ acts and equitable treatment for all

members of the electorate.” Morley, Pandemic, supra

at 423.

If a State attempted to cancel a regularly

scheduled election for its U.S. Senator and extend its

current Senator’s term to eight years, the right to vote

of each voter in the state would be denied in exactly

the same way. Even apart from the U.S. Senate’s

power to exclude an incumbent past the expiration of

their term, see U.S. Const. art. I, § 5, cl. 1, each voter

within that state would have standing to sue for

violation of their fundamental constitutional right to

vote for U.S. Senate. See id. amend. XIV, § 1; id.

amend. XVII, § 1. Accordingly, widespread harm to

all of a jurisdiction’s voters, whether through vote

denial or vote dilution, can give rise to a justiciable

dispute.

CONCLUSION

The Court should reverse the judgment of the

United States Court of Appeals for the Seventh

Circuit.

Respectfully Submitted,

Michael T. Morley

Counsel of Record

FLORIDA STATE UNIVERSITY

ELECTION LAW CENTER

425 W. Jefferson Street

Tallahassee, FL 32306

(860) 778-3883

mmorley@law.fsu.edu

Counsel for Amici Curiae

July 29, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.