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.,

v.

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 the Public Interest Legal Foundation

as Amicus Curiae in Support of Petitioners

J. CHRISTIAN ADAMS

Counsel of Record

PUBLIC INTEREST LEGAL FOUNDATION

107 S. West St., Ste. 700

Alexandria, VA 22314

(703) 745-5870

adams@publicinterestlegal.org

i

Table of Contents

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

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

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

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

I.

Plaintiffs face conflicting guidelines

when deciding when to litigate against

potentially illegal election procedures ...... 3

II.

Plaintiffs should have standing to

challenge election laws that cause an

injury by virtue of their role in an

election, assuming, for standing

purposes, that they win on the

merits………………………………………. ... 8

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

ii

Table of Authorities

Cases

Anderson v. Celebrezze,

460 U.S. 780 (1983)............................................. 5

Bost v. Illinois State Bd. of Elections,

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

Bush v. Gore,

531 U.S. 98 (2000)............................................... 5

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)............................................. 3

Carson v. Simon,

978 F.3d 1051 (7th Cir. 2020)....................... 5, 12

Democratic Nat’l Comm. v. Wis. State

Legislature, 141 S. Ct. 28 (2020) ................ 6,9,11

Fed. Election Comm’n v. Cruz,

596 U.S. 289 (2022)............................................. 5

Lance v. Coffman,

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

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ......................................... 1,4

Lutostanski v. Brown,

88 F.4th 582 (5th Cir. 2023) ............................ 11

iii

Massachusetts v. Mellon,

262 U.S. 447 (1923) ............................................ 3

Merrill v. Milligan,

142 S. Ct. 879 (2022)............................. 6,7,8,9,11

Merrill v. People First,

141 S. Ct. 25 (2020)........................................... 10

Moore v. Ogilvie,

394 U.S. 814 (1969)............................................. 5

Purcell v. Gonzalez,

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

Raines v. Byrd,

521 U.S. 811 (1997)............................................. 3

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

Comm., 589 U.S. 423 (2020) ............................... 6

Republican Party of Pennsylvania v.

Degraffenreid, 141 S. Ct. 732 (2021) .................. 8

Splonskowski v. White,

714 F. Supp. 3d 1099 (D.N.D. 2024) ................ 12

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016)............................................. 4

Walsh v. Luzerne County,

2025 U.S. Dist. LEXIS 79586 (M.D. Pa.

Apr. 28, 2025) .................................................... 12

iv

Constitutions and Statutes

U.S. Const. art. III, § 2.......................................... 1,3

Other Authorities

Casey P. Schmidt, Disrupting Election Day:

Reconsidering the Purcell Principle as a

Federalism Doctrine, 110 Va. L. Rev. 1493

(2024) .................................................................. 8

Pl. Mark Splonskowski’s Resp. in Opp’n to

Def.’s Mot. to Dismiss at 6, Splonskowski

v. White, 714 F. Supp. 3d 1099 (D.N.D.

2024) (1:23-cv-00123-DMT-VPH) ..................... 13

1

INTERESTS OF AMICUS CURIAE 1

The Public Interest Legal Foundation, Inc.

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

501(c)(3) organization whose mission includes

working to protect the fundamental right of citizens

to vote and preserve election integrity across the

country. The Foundation has sought to advance the

public’s interest by protecting the federalist

arrangement in the Constitution regarding elections,

including in a case involving the same central issue

posed here.

SUMMARY OF ARGUMENT

When the doctrines of standing and the Purcell

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

when to file their lawsuit, as Petitioners here

discovered. This case presents the opportunity for this

Court to resolve this tension.

Standing doctrine requires there to be an active

case or controversy with an “injury-in-fact” in order

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

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

555, 560-61 (1992). Meanwhile, the Purcell principle

encourages federal courts to refrain from altering or

interfering with a state’s election rules and

procedures on the eve of an election. See Purcell v.

Gonzalez, 549 U.S. 1 (2006) (per curiam). Conflict

emerges when litigants must decide between either

filing their case too early (in which case courts may

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

nor did any person or entity, other than amicus curiae and its

counsel, make a monetary contribution intended to fund the

preparation or submission of this brief.

2

rule there has been no “injury-in-fact” yet) or too late

(in which case the Purcell principle will block any

redress, since in election cases, that invariably means

an eleventh hour change to elections rules).

Within this conflict, Amicus believes standing

poses an easier resolution and propose this Court find

that individuals with election-related positions, such

as candidates or election officials, have standing to

challenge election laws that cause an injury–

assuming, for standing purposes, that they win on the

merits.

This solution incentivizes potential plaintiffs to

file suit as soon as they are under the proverbial gun

of a potentially illegal election procedure, and

promotes judicial economy by allowing courts to

adjudicate election law cases sufficiently in advance

of an election. It also ensures that plaintiffs have

sufficient time for redress, and that defendants have

time to make necessary changes to their election laws,

should plaintiffs prevail. By connecting standing to a

concrete position which makes a potential plaintiff

uniquely vulnerable to an injury caused by state law,

challenges to election laws will be brought by

individuals who will actually suffer an injury if the

challenged law is found to be unconstitutional. This

solution also refines judicial understanding of

“certainly impending” injuries by creating a bright

line beyond which courts can fairly say an injury is

likely enough to occur that they can rule on whether

that injury will occur.

Finally, this proposed solution promotes the goals

of the Purcell principle by making sure that the “rules

of the road” are “clear and settled” as far in advance

of an election as feasible.

3

ARGUMENT

I.

Plaintiffs face conflicting guidelines

when deciding when to litigate

against potentially illegal election

procedures.

The doctrine of standing originates from the U.S.

Constitution, which limits federal court jurisdiction to

actual “cases” or “controversies.” U.S. Const. art. III,

§ 2. Limiting the category of litigants who can bring a

lawsuit serves separation of powers principles by

preventing “the judicial process from being used to

usurp the powers of the political branches.” Clapper

v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “No

principle is more fundamental to the judiciary’s

proper role in our system of government than the

constitutional limitation of federal-court jurisdiction

to actual cases or controversies.” Raines v. Byrd, 521

U.S. 811, 818 (1997) (citations omitted).

Standing began its evolution into its modern form

in Massachusetts v. Mellon, 262 U.S. 447 (1923), in

which plaintiffs sought to prevent certain federal

government expenditures which they considered to

violate the Tenth Amendment. In that case, the Court

held that it had “no power per se to review and annul

acts of Congress on the ground that they are

unconstitutional. That question may be considered

only when the justification for some direct injury

suffered or threatened, presenting a justiciable issue,

is made to rest upon such an act.” Massachusetts, 262

U.S. at 488. Injury is thus central to standing, and

legal injuries are straightforwardly defined:

“[W]hether someone has suffered an ‘injury’ depends

4

on whether he has a cause of action: a ‘legal right’ that

has been violated, ‘for which the law provides a

remedy.’” Sierra v. City of Hallandale Beach, 996 F.3d

1110, 1130 (2021) (quoting Black’s Law Dictionary

905 (10th ed. 2014) (Newsom, J. concurring).

But the element of injury and its relationship to

standing was complicated in Lujan, in which the

Court held plaintiffs, alleging injuries on the basis of

downgraded environmental protection regulations,

had not met the “irreducible constitutional minimum

of standing,” containing three elements. Lujan, 504

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

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

challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.”

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

revised (May 24, 2016) (citing Lujan, 504 U.S. at 56061). “To establish injury in fact, a plaintiff must show

that he or she suffered ‘an invasion of a legally

protected

interest’

that

is

‘concrete

and

particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’” Spokeo, 578 U.S. at 339

(citing Lujan, 504 U.S. at 560). To establish

redressability, the plaintiff must show that a

favorable outcome of the case would remedy the

alleged injury. See Lujan, 504 U.S. at 568-71.

Now, plaintiffs needed to demonstrate an “injuryin-fact,” rather than the mere violation of a legal

right. This restriction on how injury is defined is at

the heart of the Seventh Circuit finding in the case at

bar.

This case demonstrates that election law disputes

may not neatly fit within modern standing

jurisprudence. Real controversies and cases may exist

5

even with a distant election or with a plaintiff with

real controversy by virtue of her office.

In the Petitioners’ lawsuit against the State of

Illinois, the Seventh Circuit found that Petitioners

could not meet the standards of standing. Bost v. Ill.

State Bd of Elections, 114 F.4th 634 (7th Cir. 2024) In

doing so, it distinguished the case at bar from a

similar case in the Fifth Circuit, Carson v. Simon, 978

F.3d 1051 (7th Cir. 2020). In Carson, the election at

the heart of the lawsuit was only a few days away,

while in the case presently at bar, the election was

months away. See Bost, 114 F.4th at 644.

But political candidates have otherwise been

traditionally held to have standing in election law

cases, because of the particular and distinct injury

they incur due to election administration laws. See,

e.g., Moore v. Ogilvie, 394 U.S. 814 (1969) (deciding a

case brought by candidates for the offices of electors

of President and Vice President of the United States

from Illinois); Anderson v. Celebrezze, 460 U.S. 780

(1983) (deciding a case brought by a candidate for the

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

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

candidate for the office of President of the United

States); Fed. Election Comm’n v. Cruz, 596 U.S. 289,

313 (2022) (deciding a case brought by a candidate for

the United States Senate regarding a campaign

finance law).

Does this mean Bost should have waited until the

eve of the election to suit the State of Illinois? Not

quite, since the Purcell principle poses an opposite bar

to lawsuits during an election.

The Purcell principle espouses that federal courts

refrain from altering or interfering with a state’s

6

election administration rules and procedures in the

period close to an election. See Republican Nat’l

Comm. v. Democratic Nat’l Comm., 589 U.S. 423, 424

(2020) (per curiam); Merrill v. Milligan, 142 S. Ct.

879, 880 (2022) (Kavanaugh, J., concurring). One

stated reason for the judicial restraint is to avoid

confusing voters and election administrators right

before an election. See Democratic Nat’l Comm. v.

Wis. State Legis., 141 S. Ct. 28, 30-31 (2020)

(Kavanaugh, J., concurring). Indeed, the Purcell

principle “reflects a bedrock tenet of election law:

When an election is close at hand, the rules of the road

must be clear and settled. Late judicial tinkering with

election laws can lead to disruption and to

unanticipated

and

unfair

consequences

for

candidates, political parties, and voters, among

others.” Milligan, 142 S. Ct. at 880–81 (Kavanaugh,

J.,

concurring).

Additionally,

the

principle

“discourages last-minute litigation and instead

encourages litigants to bring any substantial

challenges to election rules ahead of time, in the

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

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

Thus, if Bost had waited until any questions

surrounding injury were clear and unambiguous, he

may well have been blocked from any redress by the

Purcell principle. Too close to an election, and the

Court is discouraged from redressing Bost’s injury.

Too far out, and the Court will have a tough time

determining whether an injury is live enough to

adjudicate. Standing and the Purcell principle are

apparently incompatible in this case, according to the

lower court, and block any possible lawsuit–even

when plaintiffs allege unconstitutional procedures

giving them an unfair shot in their election.

7

It would be unconscionable for courts to allow

unconstitutional laws or statutory procedures to exist

within this zone of ambiguity, where they cannot be

challenged under either circumstance.

Recognizing this, the Court has grappled with the

Purcell principle in the past. In Milligan, Justice

Kavanaugh suggested a four-part set of factors for

plaintiffs seeking to overcome the Purcell principle:

“(i) the underlying merits are entirely clearcut in

favor of the plaintiff; (ii) the plaintiff would suffer

irreparable harm absent the injunction; (iii) the

plaintiff has not unduly delayed bringing the

complaint to court; and (iv) the changes in question

are at least feasible before the election without

significant cost, confusion, or hardship.” Milligan, 142

S. Ct. at 881 (Kavanaugh, J., concurring).

These factors – especially the third – illustrate the

importance of timing in applying the Purcell

principle, but they also raise an important question

for would-be plaintiffs: How long a delay is “undue” in

this case? Would waiting until the eve of an election

be considered undue? Surely so, but then where does

that line fall, especially in relation to standing? This

Court has yet to answer such questions, as it admitted

in that same opinion, in which it wrote that it “has not

yet had occasion to fully spell out all of [the Purcell

principle’s] contours.” Id.

Amicus suggests that this case is the Court’s

opportunity to flesh out those contours of the Purcell

principle. Questions abound about the limits of the

principle, with one recent law review article even

charting the cases where the Purcell principle is

applied in an effort to determine how close to an

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

8

Schmidt, Disrupting Election Day: Reconsidering the

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

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

has hinted at possible guidance on when the Purcell

principle should be abandoned, see Milligan, 142 at

881 (Kavanaugh, J., concurring), concrete direction on

the issue is needed. Amicus requests this Court take

this opportunity to not leave these important legal

questions “hidden beneath a shroud of doubt.”

Republican Party of Pa. v. Degraffenreid, 141 S. Ct.

732, 738 (2021) (Thomas, J., dissenting). Without

clarity on the intersection of the doctrines of standing

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

further confusion and erosion of voter confidence” in

the election process. Id.

II.

Plaintiffs should have standing to

challenge election laws that cause an

injury by virtue of their role in an

election, assuming, for standing

purposes, that they win on the merits.

Amicus proposes who has standing should be

clarified. Reconciling standing should include a bright

line rule that a party with actual consequences, such

as candidacy, an obligation to comply with statutory

procedures, or liability for an electoral action, will

have standing as early as those consequences target

them specifically due to their position, assuming (for

standing purposes) that they will prevail on merits.

That is, just as Petitioners should have standing

by virtue of their positions as candidates in an

election, other potential plaintiffs gain standing upon

their confirmation to an election-related position

connected to the law they are challenging. They must

still demonstrate all other elements of standing, but

9

threading the needle between standing and the

Purcell principle is no longer a concern for such

potential plaintiffs, and they are encouraged to sue as

soon as possible. This is not an expansion to standing,

as the only people who can sue under this proposed

rule are people who already have standing – this rule

only clarifies when they gain such standing.

In the case presently at bar, Petitioners should

have standing due to their positions as candidates.

Yet in other election-related disputes, other officials

might have standing. For example, officials who are

tasked with accepting or rejecting late-arriving

ballots would also have a live “case or controversy” if

they challenged extensions of time, as in Illinois.

The core purpose animating this proposed solution

is that of the Purcell principle: making sure that the

“rules of the road” are “clear and settled” as far in

advance of an election as feasible. Wis. State Legis.,

141 S. Ct. at 31. This Court has “repeatedly stated

that federal courts ordinarily should not enjoin a

state’s election laws in the period close to an election,”

id. at 30, due to the potential disruption following a

federal court tinkering with state election laws. But

in Milligan, the Court also recognized that how tough

it could be to determine “[h]ow close to an election is

too close,” Milligan, 142 S. Ct. at 881 n.1, and that it

may depend on the nature of the election law, how

feasible requested relief is, and any collateral effects

those changes might have.

Attaching standing to clear parameters cuts

through that guesswork. Such parameters can

include whether a candidate has registered for an

election as a candidate, or whether an official has

been tasked with accepting or rejecting ballots. As

10

soon as those parameters are met, he can immediately

know whether or not he would be injured if his

allegations are factual. In many of these election law

cases, injuries crystalize around positions. An alleged

injury becomes concrete, particularized and imminent

precisely because it impacts someone due to their role

in that election, whether as an election official or a

candidate, and courts can move forward to adjudicate

the dispute right away. Potential plaintiffs are thus

incentivized to file suit as soon as their position puts

them in a situation where they could be potentially

injured by an election procedure. This solution also

promotes judicial economy by allowing courts to

adjudicate election law cases as far in advance of an

election as possible.

Under the current confusion surrounding Purcell

and standing, district courts embark on timeconsuming procedures in an attempt to adjudicate

based on facts, only to run aground on the Purcell

principle. That’s exactly what happened in Merrill v.

People First, 141 S. Ct. 25 (2020). There, plaintiffs

challenged a ban on curbside voting during the

COVID-19 pandemic. People First, 141 S. Ct. at 26.

This Court denied a lower court’s injunction on the

ban. In her dissent, Justice Sotomayor wrote that the

injunction was a “reasonable accommodation” by the

district court. Id at 27. The district court so found

after discovery and an expedited trial were conducted.

Id. at 26. Although People First likely would not have

benefited from expanded standing discussed here,

due to the specific facts in that case, it nevertheless

demonstrates how courts benefit from having more

time before Purcell blocks any redress they might

provide prevailing plaintiffs.

11

Courts are not the only ones who need time in an

election lawsuit. States also need time to implement

any relief ordered. In Wis. State Legis., this Court said

that states need clear election rules precisely because

“running a statewide election is a complicated

endeavor. Lawmakers initially must make a host of

difficult decisions about how best to structure and

conduct the election.” 141 S. Ct. at 31. When courts

hand down rulings granting redress to plaintiffs

challenging election laws, losing defendants cannot

just wave a wand and effect change instantly. They

need time to make those changes.

In People First, this Court recognized such by

including feasibility into its analysis. Although that

can certainly help plaintiffs overcome the Purcell

principle when they are already in the thick of

litigation, clarifying standing to giving plaintiffs more

time to sue accomplishes the same goal of promoting

feasible solutions, but does so from the very outset of

litigation.

This solution also refines judicial understanding of

“certainly impending” injuries by creating a bright

line beyond which courts can fairly say an injury is

likely enough to occur that they can rule on whether

that injury will occur. Tying standing to status as an

election official or candidate is also an easy way to

preserve existing rulings where election law cases

were dismissed on standing, usually because injuries

alleged by voters are found to be generalized

grievances. See Lutostanski v. Brown, 88 F.4th 582

(5th Cir. 2023). Plaintiffs are still required to clearly

allege facts demonstrating all elements of standing,

but by more concretely defining an “impending

injury,” they can now be sure of when to file a lawsuit.

12

By ensuring only such plaintiffs can overcome this

standard, it guarantees that their injuries will be

particularized, since they may suffer unique injuries

under a potentially invalid election law, compared to

an ordinary voter without a particularized

administrative role in election administration.

Thus, this proposed solution preserves the ruling

in Lance v. Coffman, 549 U.S. 437 (2007), which the

Seventh Circuit suggested in dicta was somehow

incompatible with the Carson decision. Bost at 64344. It also preserves the ruling of cases like Walsh v.

Luzerne County, 2025 U.S. Dist. LEXIS 79586, *1

(M.D. Pa. Apr. 28, 2025), in which a candidate was

found to have lacked standing because he ran

unopposed and there was consequently no injury in

an election whose processes he sought to contest. This

solution will only rescue cases which would have

otherwise floundered thanks to Purcell, but it does so

while giving this Court plenty of time to work out the

future of the Purcell principle on its own time.

In Splonskowski v. White, 714 F. Supp. 3d 1099

(D.N.D. 2024), a North Dakota County Auditor

alleged his state’s election process of receiving ballots

nearly two weeks after Election Day violates federal

election law. He sued North Dakota, seeking preenforcement review. Id. at 1104. The court decided

that he did not have standing. Thus, the court never

ruled on whether the North Dakota process violates

federal law. Voters have no way of knowing whether

their votes were legally cast and counted, and a

potentially violative election law continues to be on

the books now, having dodged judicial review purely

because of the court’s standing interpretation.

13

The County Auditor sought standing because he

was in the position of either following federal law or

state law as, honoring federal law, he’d “necessarily

fail … to perform his official, statutory duties, acts

that will expose him to adverse consequences,

including

criminal

prosecution.”

Pl.

Mark

Splonskowski’s Resp. in Opp’n to Def.’s Mot. to

Dismiss at 6, Splonskowski v. White, 714 F. Supp. 3d

1099 (D.N.D. 2024) (1:23-cv-00123-DMT-VPH). This

should have been sufficient to vest standing in a

challenge to whether ballots should be accepted.

Thereafter, the case could have proceeded to the

merits, and North Dakota voters could have enjoyed

increased confidence in their electoral system,

knowing either that their state procedure was

perfectly permissible under federal law, or that any

conflict will be solved.

Under the proposed solution presented in this

brief, standing in election cases will turn based on the

relationship between the potential plaintiff, the

upcoming election, and the election law being

challenged. Generalized “voter injuries” will continue

to be rightfully excluded from bar, while interested

parties will have more leeway to bring lawsuits

challenging potentially invalid election laws in

advance, without being then-blocked by the Purcell

principle.

14

CONCLUSION

For these reasons, Amicus respectfully requests

that this Court reverse the United States Court of

Appeals for the Seventh Circuit.

Respectfully submitted,

J. CHRISTIAN ADAMS

Counsel of Record

PUBLIC INTEREST LEGAL FOUNDATION

107 S. West St., Ste. 700

Alexandria, VA 22314

(703) 745-5870

adams@publicinterestlegal.org

Dated: July 29, 2025