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 THE NRCC AND THE NRSC AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

Blake D. Murphy

NRSC

425 Second Street, NE

Washington, DC 20002

Ryan G. Dollar

NRCC

320 First Street SE

Washington, DC 20003

Michael E. Toner

Jeremy J. Broggi*

Brandis L. Zehr

Michael J. Showalter

WILEY REIN LLP

2050 M Street N.W.

Washington, D.C. 20036

jbroggi@wiley.law

(202) 719-7000

*Counsel of Record

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

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

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

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

ARGUMENT ...............................................................4

I.

II.

UNLAWFUL ELECTION PROCEDURES CREATE PER

SE ARTICLE III INJURY .......................................4

A.

Unlawful Election Rules Misrepresent

The Vote Count .......................................5

B.

Unlawful Election Rules Risk Reducing

the Candidate’s Probability of Winning.7

C.

Unlawful Election Rules Force Rational

Candidates To Expend Additional

Monitoring Costs.....................................9

THE SEVENTH CIRCUIT’S HOLDING WOULD

CREATE PERVERSE INCENTIVES AND INSULATE

ELECTION MALFEASANCE .................................12

CONCLUSION ..........................................................16

- ii –

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Celebrezze,

460 U.S. 780 (1983)............................................. 4

Ass’n of Data Processing Serv.

Organizations, Inc. v. Camp,

397 U.S. 150 (1970)......................................... 8, 9

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021)........................................... 15

Buckley v. Valeo,

424 U.S. 1 (1976)................................................. 4

Bush v. Gore,

531 U.S. 98 (2000)............................................... 4

Carson v. Simon,

978 F.3d 1051 (8th Cir. 2020)............................. 5

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)........................................... 11

Clinton v. City of New York,

524 U.S. 417 (1998)......................................... 8, 9

Davis v. FEC,

554 U.S. 724 (2008)............................................. 4

Diamond Alt. Energy, LLC v. EPA,

145 S. Ct. 2121 (2025)......................................... 6

- iii TABLE OF AUTHORITIES

Page(s)

Democratic Nat’l Comm. v. Wisconsin State

Legislature,

141 S. Ct. 28 (2020)............................... 12, 13, 15

FEC v. Cruz,

596 U.S. 289 (2022)............................... 2, 3, 4, 10

Fish v. Kobach,

840 F.3d 710 (10th Cir. 2016)............................. 9

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)............................................. 8

Moore v. Ogilvie,

394 U.S. 814 (1969)............................................. 4

Morse v. Republican Party of Virginia,

517 U.S. 186 (1996)............................................. 7

Murthy v. Missouri,

603 U.S. 43 (2024)............................................. 11

Purcell v. Gonzalez,

549 U.S. 1 (2006)..................................... 1, 12, 14

Republican Nat’l Comm. v. Democratic

Nat’l Comm.,

589 U.S. 423 (2020)................................. 1, 12, 14

Republican Party of Pennsylvania v.

Degraffenreid,

141 S. Ct. 732 (2021)............................. 12, 13, 14

- iv TABLE OF AUTHORITIES

Page(s)

Shays v. FEC,

414 F.3d 76 (D.C. Cir. 2005) ............................... 8

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016)........................................... 11

Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997)............................................. 7

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021)..................................... 2, 5, 7

Trump v. Wisconsin Elections Comm’n,

983 F.3d 919 (7th Cir. 2020)............................... 5

Statutes

10 Ill. Comp. Stat. 5/17-23 ..................................... 10

10 Ill. Comp. Stat. 5/19-10 ..................................... 10

10 Ill. Comp. Stat. 5/19A-60 .................................. 10

10 Ill. Comp. Stat. 5/7-34 ....................................... 10

25 Penn. Stat. § 2687 ............................................. 10

Other Authorities

R. Michael Alvarez et al., Voter Confidence

in the 2020 Presidential Election:

Nationwide Survey Results, Cal. Inst.

Tech. 3 (Nov. 19, 2020),

tinyurl.com/bdhd2nzu....................................... 15

-vTABLE OF AUTHORITIES

Page(s)

Jim Drinkard, Republicans Prepare to Take

Control of Congress, Associated Press

(Nov. 10, 1994) .................................................... 6

Jeffrey Jones, More Than Half of U.S. Vote

Likely Cast Before Election Day, Gallup

(Oct. 31, 2024), tinyurl.com/3h2w23yn .............. 6

Steven J. Mulroy, Baby & Bathwater:

Standing in Election Cases After 2020,

126 Dick. L. Rev. 9 (2021)............................. 4, 14

Katherine Ognyanova et al., The COVID

States Project: A 50-State COVID-19

Survey, Report #29: Election Fairness

and Trust in Institutions (Dec. 2020),

tinyurl.com/yc4unxfe ........................................ 15

Pew Res. Ctr., Sharp Divisions on Vote

Counts, as Biden Gets High Marks for

His Post-Election Conduct: Voters’

evaluations of the 2020 election process

(Nov. 20, 2020), tinyurl.com/2bkdn7up............ 15

Hans A. von Spakovsky, Poll Observers Are

Essential To Honest Elections, Heritage

Foundation (Nov. 9, 2022),

tinyurl.com/3bj3uz32 ........................................ 10

- vi TABLE OF AUTHORITIES

Page(s)

John T. Woolley & Gerhard Peters,

Presidential Election Margin of Victory:

J.Q. Adams to Trump II, in The

American Presidency Project at

University of California Santa Barbara

(Nov. 6, 2024), tinyurl.com/4e4s7rjb .................. 7

INTEREST OF AMICI CURIAE 1

The NRCC (the National Republican Congressional Committee) is the principal national political

party committee devoted to electing Republicans to

the U.S. House of Representatives. It advocates for

the reelection of Republican Members of the House,

including Petitioner Michael J. Bost.

The NRSC (the National Republican Senatorial

Committee) is the principal national political party

committee focused on electing Republicans to the U.S.

Senate. The NRSC represents all Republican Members of the Senate.

For the NRCC, the NRSC, and their candidates,

reversal of the decision below is essential to ensure

that the rules governing elections are clearly known

in advance. Clear election rules, established well before the election occurs, promote confidence in the

fairness of our election system. “This Court has repeatedly emphasized that lower federal courts should

ordinarily not alter the election rules on the eve of an

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

Nat’l Comm., 589 U.S. 423, 424 (2020) (per curiam);

see also Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam). And post-election litigation is likewise undesirable, as it may put courts in the unenviable position of seeming to decide the election themselves or of

potentially disenfranchising voters that have already

cast their ballots. Post-election litigation hurts candidates too—among other things, it can weaken the

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

and no person or entity other than amici curiae or their counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

perceived political mandate of the election winner.

All this suggests it is best to resolve disputes about

election rules early, so the rules are clear to all in advance of the election and the vote-counting process.

The Seventh Circuit chose a different path. By

denying the unique injury that unlawful election

rules impose on candidates for public office, it reduced

the likelihood that such rules can be litigated before

the election begins. That result was not required by

Article III, and this Court should discard it.

SUMMARY OF ARGUMENT

Candidates for public office—regardless of political affiliation—are squarely harmed by unlawful election rules that disadvantage them. That unremarkable proposition resolves this appeal. Article III injury

can be doctrinally complex, but it boils down to a simple question: “‘What’s it to you?’” TransUnion LLC v.

Ramirez, 594 U.S. 413, 423 (2021). And unlawful

election rules mean quite a lot to a candidate for public office.

“For standing purposes,” this Court “accept[s] as

valid the merits of [the plaintiff’s] legal claims.” FEC

v. Cruz, 596 U.S. 289, 298 (2022). The Court “must

assume,” in other words, that the alleged illegality is

in fact illegal. Id. Here, that means the Court must

assume that the Illinois statute facilitates voting that

is illegal under federal law. That harms Petitioners

in multiple independent ways.

First, candidates have a concrete and particularized interest in official vote counts accurately reflect-

3

ing eligible votes cast under lawful election rules enacted by the legislature. That interest extends beyond winning the election—it applies even in noncompetitive races. If political candidates were polled on

whether they would prefer to win with 51 percent of

the vote or 99 percent, the results would not be mixed.

The same is true for 55 percent versus 56 percent. Accuracy matters. It has real-world implications no

matter how close the election is. There is a reason

vote counting continues even after a race is called.

Second, counting ineligible votes cast under unlawful election rules can reduce a candidate’s probability of winning the election. In the economic marketplace, competitor standing allows companies to

challenge acts that could hurt their profits incrementally. In the political marketplace, unlawful election

procedures risk entirely preventing a candidate’s election. Competitor standing, therefore, should apply a

fortiori in the electoral context.

Third, a candidate might suffer the pocketbook injury of the costs associated with additional monitoring, like Petitioner Bost did here. A state statute that

potentially facilitates ineligible voting requires a rational candidate to expend resources to reduce that

risk. Because the additional monitoring costs are an

injury “resulting from” the “application or threatened

application of an unlawful enactment,” they are

“fairly traceable to such application” even “if the injury could be described in some sense as willingly incurred.” Cruz, 596 U.S. at 297.

An erroneous jurisdictional ruling here would

have severe negative consequences. Federal elections

4

recur every two years. And unlawful election procedures subvert the political process. Leaving them insulated from judicial review would cement a structural entrenchment damaging to candidates across

the political spectrum.

ARGUMENT

I. UNLAWFUL ELECTION PROCEDURES CREATE PER

SE ARTICLE III INJURY

Lower courts have been “cavalierly dismissing legitimate claims of standing” to challenge election procedures, including by political candidates. Steven J.

Mulroy, Baby & Bathwater: Standing in Election

Cases After 2020, 126 Dick. L. Rev. 9, 13 (2021). But

this Court historically has exercised jurisdiction without hesitation when candidates challenge allegedly

unlawful election procedures. See, e.g., Cruz, 596 U.S.

at 313 (“Cruz and the Committee have standing to

challenge the threatened enforcement”); Davis v.

FEC, 554 U.S. 724, 733 (2008) (“When Davis filed

suit, he had already declared his 2006 candidacy”;

“Davis possesses standing to challenge the disclosure

requirements”); Bush v. Gore, 531 U.S. 98, 100 (2000)

(“Governor Bush and Richard Cheney [are] Republican candidates for President and Vice President”);

Anderson v. Celebrezze, 460 U.S. 780, 782 (1983) (“petitioner John Anderson … was an independent candidate for the office of President”); Buckley v. Valeo, 424

U.S. 1, 35 n.41 (1976) (“Appellant Buckley was a minor-party candidate … elected to the United States

Senate”); Moore v. Ogilvie, 394 U.S. 814, 815 (1969)

(“appellants … are independent candidates for the offices of electors”).

5

That is for good reason. When unlawful state election procedures disadvantage a candidate for federal

office, that candidate is per se injured under Article

III. Here, the candidate’s suit alleges that an Illinois

statute allows state officials to count votes cast after

the deadline set by federal law. Taken as true, that

is injury-in-fact both because the statute unfavorably

misrepresents the vote count and because it risks reducing the candidate’s probability of winning the

race. And if the candidate rationally incurs expenses

to reduce the risk of illegal voting, that pocketbook injury per se satisfies Article III as well.

A.

Unlawful Election Rules Misrepresent

The Vote Count

The Seventh Circuit could only imagine one “hypothetical future harm” from votes cast under unlawful

rules: “election defeat.” Pet.App. 11a. That is wrong.

As the Eighth Circuit has recognized, “[a]n inaccurate

vote tally is a concrete and particularized injury to

candidates.” Carson v. Simon, 978 F.3d 1051, 1058

(8th Cir. 2020); see also Trump v. Wisconsin Elections

Comm’n, 983 F.3d 919, 924 (7th Cir. 2020) (same).

Vote counts are not just about who wins and loses

the election—the tally matters. This is one reason

why election officials continue counting ballots even

after one candidate has secured a decisive majority

and the outcome is no longer in doubt. “[O]ne need

only tap into common sense to know that [losing vote

share] is harmful.” TransUnion, 594 U.S. at 458

(Thomas, J., dissenting, joined by Breyer, Sotomayor,

and Kagan, JJ.). And that intuition matters because,

when analyzing Article III standing, “[j]udges are not

6

required to exhibit a naiveté from which ordinary citizens are free.” Diamond Alt. Energy, LLC v. EPA,

145 S. Ct. 2121, 2140 (2025) (cleaned up).

Unlawful election rules can harm candidates of either party, but here, the Illinois statute virtually

guarantees that the vote count will understate voters’

support for NRCC and NRSC candidates. According

to a Gallup Poll, 35 percent of Democrats voted by

mail in 2024 versus only 17 percent of Republicans.

See Jeffrey Jones, More Than Half of U.S. Vote Likely

Cast Before Election Day, Gallup (Oct. 31, 2024), tinyurl.com/3h2w23yn. In 2020, 45 percent of Democrats voted by mail versus only 25 percent of Republicans. Id. If Petitioners are correct that votes received

by mail after Election Day are invalid and therefore

should not be counted (and, for purposes of assessing

Article III standing, the Court must assume that they

are), then the percentage of votes they received in an

election will be chronically understated.

Journalists, party leadership, donors, potential

primary challengers, advocacy groups, and candidates themselves all rely on publicly reported vote

percentages to make strategic decisions. Journalists

and candidates alike are more likely to portray a candidate as broadly popular and owning a mandate from

the people the more votes the candidate receives. See,

e.g., Jim Drinkard, Republicans Prepare to Take Control of Congress, Associated Press (Nov. 10, 1994)

(“Gingrich said the election outcome was a clear mandate for the national ‘Contract With America’ that

more than 300 Republican House candidates

signed.”). Party leaders may be more likely to elevate

a candidate who receives a greater share of the votes.

Donors and advocacy groups may be more likely to

7

provide support. And potential challengers may be

more likely to sit out the next election cycle the

stronger the candidate’s vote share. All these political

realities reflect the “common view” that the size of a

candidate’s margin of victory “predicts the likelihood

of him launching enduring changes in policy and politics.” See John T. Woolley & Gerhard Peters, Presidential Election Margin of Victory: J.Q. Adams to

Trump II, in The American Presidency Project at University of California Santa Barbara (Nov. 6, 2024), tinyurl.com/4e4s7rjb.

Each of these is an independent reason why state

election procedures that facilitate ineligible voting

matter to federal candidates, no matter who wins.

Each is, in other words, a firm answer to the question

“‘What’s it to you?’” TransUnion, 594 U.S. at 423.

B.

Unlawful Election Rules Risk Reducing the Candidate’s Probability of Winning

Ineligible voting risks reducing a candidate’s

chances of winning the race. Here, because mail-in

votes tend to be cast in greater numbers by Democrats, a statute that facilitates the unlawful counting

of too-late mail-in votes reduces a Republican candidate’s probability of winning the race. That is an additional per se Article III injury. The primary objective of candidacy is electoral victory and attainment

of public office. See Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 363 (1997) (“Ballots serve primarily to elect candidates”); Morse v. Republican

Party of Virginia, 517 U.S. 186, 206 (1996) (recognizing “the State’s compelling interest in winnowing

down the candidates” “to the serious few who have a

8

realistic chance to win the election”). Any reduction

in the likelihood of that outcome, therefore, sets back

the purpose of the project.

This type of harm is more absolute than the competitive effects typically evaluated in the economic

marketplace, where adverse impacts on rivals are often incremental and contingent. For instance, a company might suffer a decline in market share due to a

competitor’s conduct, but still operate profitably.

Yet courts have “routinely recognized” competitor

standing in the economic marketplace. Shays v. FEC,

414 F.3d 76, 85–86 (D.C. Cir. 2005) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 572–73 & nn. 7–8

(1992)). In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), for example, this Court had “no doubt” that the plaintiff

suffered Article III injury because the alleged increased competition “might” entail “some future loss

of profits.” Id. at 152. Similarly, in Clinton v. City of

New York, 524 U.S. 417 (1998), the Court noted that

it “routinely recognizes probable economic injury resulting from governmental actions that alter competitive conditions as sufficient to satisfy … Article III.”

Id. at 433 (cleaned up).

There is no logical reason why competitive injury

in the political marketplace would not even more

readily satisfy Article III given the political marketplace’s zero-sum nature. Unlike a company suffering

incremental lost profit, a candidate harmed in a way

that diminishes his electoral prospects may suffer a

total defeat, with no compensatory outcome.

9

The Seventh Circuit seemed to accept the doctrine

of candidate competitor standing below but held that

it did not apply here because the court doubted

whether “the majority of the votes that will be received and counted after Election Day will break

against [Petitioners].” Pet.App. 13a. That defies political reality—the suit alleged that state law would

allow ballots to be cast by mail after the deadline set

by federal law and, as discussed, the empirical evidence plainly shows that Democrats vote by mail at a

rate approximately double that of Republicans. The

Seventh Circuit’s rejection of Petitioners’ competitor

standing simply does not hold water. The decision is

also bad policy, because it risks delaying litigation until after votes have been cast, when “there can be no

‘do-over’ or redress” for voters who were duped by the

State. See Fish v. Kobach, 840 F.3d 710, 752 (10th

Cir. 2016).

The Seventh Circuit also emphasized that it was

not “certain[]” that Petitioners would lose their elections, Pet.App. 10a, but that is not the standard for

injury. Competitive injury is sufficient for Article III

when the competitor “might” be injured by the illegality. Ass’n of Data Processing Serv. Organizations,

Inc., 397 U.S. at 152; see also City of New York, 524

U.S. at 432 (“sufficient likelihood”). The increased

risk of losing the election clearly meets that standard.

C.

Unlawful Election Rules Force Rational Candidates To Expend Additional Monitoring Costs

When faced with a state statute that raises a material possibility that ballots will be cast in violation

of federal law, rational candidates will exercise their

10

right to monitor the voting process to reduce the number of ineligible votes. The associated expense is a

classic pocketbook injury that per se satisfies Article

III injury-in-fact. See, e.g., Cruz, 596 U.S. at 296 (candidate’s “pocketbook harm” was Article III injury).

Here, for example, Petitioner Bost’s rational decision

to monitor votes “increase[d] [his] campaign costs,”

and that gives him a “concrete stake in the resolution

of this lawsuit.” Pet.App. 16a (Scudder, J., dissenting).

Poll monitoring is a campaign’s legal prerogative,

regardless how competitive a race is. “Every U.S.

state” has election laws giving candidates “the ability

to appoint poll observers” to monitor and observe voting inside polling places and the processing of ballots

after the polls close. Hans A. von Spakovsky, Poll Observers Are Essential To Honest Elections, Heritage

Foundation (Nov. 9. 2022), tinyurl.com/3bj3uz32. In

Pennsylvania, for example, “[e]ach candidate … at

any election shall be entitled to appoint two watchers

for each election district in which such candidate is

voted for.” 25 Penn. Stat. § 2687. In Illinois, the law

authorizes candidates and political parties to appoint

pollwatchers in order to build confidence in the electoral process. 10 Ill. Comp. Stat. 5/17-23(1)–(2) (authorizing parties and candidates to “appoint two

pollwatchers per precinct”); id. 5/7-34(1)–(2) (same for

primary elections); id. 5/19-10 (same for observing

early voting procedures and vote by mail processing

and counting); id. 5/19A-60 (same for early in-person

voting). Poll watching “has become commonplace

among major candidates.” Pet.App. 19a (Scudder, J.,

dissenting).

11

Candidates incur monitoring expenses not only to

maximize their probability of winning the election but

also to maximize the probability that the vote tally

will accurately reflect their electoral support. The

Seventh Circuit believed that Bost might win with

“seventy-five percent of the vote,” Pet.App. 11a, and

that this somehow rendered monitoring useless. But

a candidate who receives 76 percent of the lawful vote

should be recorded as receiving 76 percent of the vote,

not 75 percent. And candidates have a legal right to

monitor votes toward that end. See Pet.App. 19a

(Scudder, J., dissenting) (“Even if Congressman Bost

had won reelection by 99% in 2022, he would have

been more than justified in monitoring the count after

Election Day.”).

As noted, this Court has made clear that a “degree

of risk” can suffice to satisfy Article III. Spokeo, Inc.

v. Robins, 578 U.S. 330, 343 (2016). Indeed, the case

the Seventh Circuit relied on—Clapper v. Amnesty International USA—observed that this Court has

“found standing based on a ‘substantial risk’ that the

harm will occur.” 568 U.S. 398, 414 n.5 (2013); see

also Murthy v. Missouri, 603 U.S. 43, 49 (2024) (“substantial risk”).

As Clapper explains, the substantial-risk standard

applies at minimum when the risk of harm “prompt[s]

plaintiffs to reasonably incur costs to mitigate or

avoid that harm.” 568 U.S. at 414 n.5; see also

Pet.App. 20a (Scudder, J., dissenting) (“Plaintiffs who

take precautionary measures to avoid speculative

harms are ubiquitous in federal courts.”). That is exactly what is alleged here. The exercise of a candidate’s legal right to monitor imposes cognizable burdens regardless of how competitive a race is. See

12

Pet.App. 17a (Scudder, J., dissenting) (Petitioner Bost

faced “guaranteed prospect of higher campaign

costs”). While Illinois didn’t mandate monitoring, the

Illinois law created an environment in which failing

to monitor posed a material risk to the candidate’s interest. That converts a supposedly voluntary expense

into a foreseeable, law-induced burden.

II. THE SEVENTH CIRCUIT’S HOLDING WOULD CREATE PERVERSE INCENTIVES AND INSULATE ELECTION MALFEASANCE

Judicial review of unlawful election procedures

should occur well in advance of an election rather

than during the chaotic period shortly before and after the election. Latebreaking changes often result in

“judicially created confusion.”

Republican Nat’l

Comm., 589 U.S. at 425 (citing Purcell v. Gonzalez,

549 U.S. 1 (2006)). “Unclear rules” threaten to “sow

confusion and ultimately dampen confidence in the

integrity and fairness of elections.” Republican Party

of Pennsylvania v. Degraffenreid, 141 S. Ct. 732, 734

(2021) (Thomas, J., dissenting from denial of certiorari). So, “[w]hen an election is close at hand, the

rules of the road should be clear and settled.” Democratic Nat’l Comm. v. Wisconsin State Legislature, 141

S. Ct. 28, 31 (2020) (Kavanaugh, J.) (concurring in denial of application to vacate stay) (citing “the Purcell

principle”).

“[R]unning a statewide election is a complicated

endeavor.” Id. Legislatures “initially must make a

host of difficult decisions” about “how best to structure and conduct the election.” Id. Then, state and

local election administration officials and volunteers

must participate in a “massive coordinated effort to

13

implement the lawmakers’ policy choices on the

ground before and during the election, and again in

counting the votes afterwards.” Id. And at every step,

state and local officials must “communicate to voters

how, when, and where they may cast their ballots

through in-person voting on election day, absentee

voting, or early voting.” Id.

For these reasons, judicially altering election procedures near an election creates severe administrative problems. When that happens, election administrators “must first understand the court’s injunction,

then devise plans to implement that late-breaking injunction, and then determine as necessary how best

to inform voters, as well as state and local election officials and volunteers, about those last-minute

changes.”

Id.

Resisting eleventh-hour judicial

changes “protects the State’s interest in running an

orderly, efficient election.” Id.

For mail-in ballots in particular, tallying “tends to

be … labor intensive, involves a high degree of subjective judgment (e.g., verifying signatures), and typically leads to a far higher rate of ballot challenges and

rejections.” Degraffenreid, 141 S. Ct. at 736 (Thomas,

J.). Litigation over these ballots “can require substantial discovery and labor-intensive fact review.” Id. In

some cases, it requires “sifting through hundreds of

thousands or millions of ballots” and involves “subjective judgment calls about the validity of thousands of

ballots.” Id.

The Seventh Circuit’s ruling creates a catch-22 in

which a candidate suing well in advance of the election purportedly has only “speculative” harm,

14

Pet.App. 11a, while a candidate suing near the election loses under the Purcell doctrine. Under Purcell,

“lower federal courts should ordinarily not alter the

election rules on the eve of an election” because that

could confuse voters and complicate election administration. See Republican Nat’l Comm., 589 U.S. at

424 (citing Purcell, 549 U.S. 1). To avoid the Purcell

bar, therefore, a candidate plaintiff must sue early.

But according to the Seventh Circuit, a plaintiff suing

early has no Article III standing because the election’s

outcome is uncertain. In conjunction with Purcell,

that ruling is doctrinally unworkable.

Judicial alteration of the rules after the election is

perhaps even worse than changing them shortly before. Postelection litigation “forces courts to make

policy decisions that they have no business making.”

Degraffenreid, 141 S. Ct. at 736 (Thomas, J.). When

an election procedure is unlawful but voters relied on

the procedure when casting their ballots, courts are

stuck between either “disenfranchising a subset of

voters” or “enforcing the [unlawful] election provisions.” Id. “Settling rules well in advance of an election rather than relying on postelection litigation ensures that courts are not put in that untenable position.” Id. at 737. In part for these reasons, there is a

“general consensus” among scholars and judges that

litigants “should seek curative injunctive relief before

the election and not afterward.” Mulroy, Baby &

Bathwater, 126 Dick. L. Rev. at 20 (citing Justice Antonin Scalia, Professor Richard L. Hasen, and Professor Daniel P. Tokaji).

In addition to the importance of adjudicating these

lawsuits early, it is also important to adjudicate them

correctly. “Confidence in the integrity of our electoral

15

processes is essential to the functioning of our participatory democracy.” Purcell, 549 U.S. at 4. Our elections must give citizens, “including the losing candidates and their supporters,” “confidence in the fairness of the election.” Wisconsin State Legislature, 141

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

When state election procedures violate federal law

and create a possibility that ineligible votes will be

cast, that “undermine[s] public confidence in the fairness of elections and the perceived legitimacy of the

announced decision.” Brnovich v. Democratic Nat’l

Comm., 594 U.S. 647, 672 (2021). Indeed, recent polls

show substantial declines in confidence in American

elections. A full 40 percent of American voters doubt

the trustworthiness of our elections. See Pew Res.

Ctr., Sharp Divisions on Vote Counts, as Biden Gets

High Marks for His Post-Election Conduct: Voters’

evaluations of the 2020 election process, (Nov. 20,

2020), tinyurl.com/2bkdn7up; R. Michael Alvarez et

al., Voter Confidence in the 2020 Presidential Election:

Nationwide Survey Results, Cal. Inst. Tech. 3 (Nov.

19,

2020),

tinyurl.com/bdhd2nzu;

Katherine

Ognyanova et al., The COVID States Project: A 50State COVID-19 Survey, Report #29: Election Fairness and Trust in Institutions (Dec. 2020), tinyurl.com/yc4unxfe.

Real-world consequences, therefore, point in the

same direction as fidelity to text and history: candidates have Article III standing to challenge unlawful

and disadvantageous election rules prior to an election.

16

CONCLUSION

This Court should reverse.

Respectfully submitted,

Blake D. Murphy

NRSC

425 Second Street, NE

Washington, DC 20002

Ryan G. Dollar

NRCC

320 First Street SE

Washington, DC 20003

Michael E. Toner

Jeremy J. Broggi*

Brandis L. Zehr

Michael J. Showalter

WILEY REIN LLP

2050 M Street N.W.

Washington, D.C. 20036

jbroggi@wiley.law

(202) 719-7000

*Counsel of Record

July 29, 2025

Counsel for Amici Curiae