It is entirely predictable that an extended deadline will result, over and over, in the counting of late-arriving votes.
It would appear that rumors of an impending Supreme Court ruling on tariffs have misled a lot of the bar and Supreme Court press (even the solicitor general was in the courtroom Friday just in case), but that doesn’t mean that we came away empty-handed. Three decisions today included Case v. Montana, which emphasized that the familiar objective-reasonableness test under the Fourth Amendment governs when police, without a warrant, can enter a house on an emergency call rather than a criminal investigation (in Case, a report that a man inside was suicidal). As Justice Elena Kagan summarized the Court’s unanimous ruling:
The question presented is whether that standard means that officers must have “probable cause” for the intrusion, as they typically would when investigating a crime. We hold it does not. The probable-cause requirement is rooted in, and derives its meaning from, the criminal context, and we decline to transplant it to this different one. Brigham City’s reasonableness standard means just what it says, with no further gloss. And here it was satisfied because the police had “an objectively reasonable basis for believing” that a homeowner intended to take his own life and, indeed, may already have shot himself.
Justice Neil Gorsuch wrote separately to emphasize that this rule is not just common sense, but is rooted in the common law, under which emergencies justified entering another’s property to prevent “serious physical harm,” and “officers generally enjoy the same legal privileges as private citizens.”
The bigger news, however, is the Court’s 5-2-2 opinion in Bost v. Illinois Bd. of Elections, holding that candidates for office have standing to sue to challenge election laws before the election. As I discussed when the case was argued, this is good policy, allowing more disputes about election law to be resolved in advance, rather than pushed into post-election controversies. It’s also a logical extension of the Court’s standing rules, limiting standing to those (candidates in the particular election) with a direct stake in the rules.
Chief Justice John Roberts wrote the opinion for a five-justice majority, concluding that status as a candidate is sufficient to grant preelection standing to sue. Justice Amy Coney Barrett, joined by Justice Elena Kagan, disagreed, but concurred in the judgment on the more basic ground that an election rule extending the time for ballots to arrive imposes a traditional “pocketbook injury,” requiring campaigns to spend more money; Barrett and Kagan would not extend this principle to all election law challenges. Justice Ketanji Brown Jackson dissented, joined by Justice Sonia Sotomayor.
The Stakes
As I wrote in October:
Bost is a suit challenging an Illinois law allowing votes to be counted if they arrive within two weeks of Election Day. The lawsuit argues that this violates the federal law setting a uniform national election day for House elections, 2 U.S.C. §7, which was enacted under the power of Congress in Article I, Section 4 and has been on the books since 1875. . . . A 2024 Fifth Circuit decision, Republican National Committee v. Wetzel, was the first by a federal appeals court to consider this question, and ruled that Mississippi’s law counting late-arriving votes violates federal law. . . .
Complaints about how elections are handled have to run a gauntlet. Standing is a major issue in post-election challenges, in which candidates can challenge the rules of an election that’s already been held only if they can show that the lawsuit could change enough votes to alter the outcome. . . . Moreover, if an election’s outcome has been settled, it’s too late for the courts to get involved. . . . When pre-election challenges are brought too close to Election Day, there’s a different problem: the Purcell principle, named for the 2006 Purcell v. Gonzalez decision, under which the federal courts should avoid throwing out election rules during the run-up to an election because “court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”
Bost, brought by safe-seat Republican Representative Michael Bost, considered only the standing question, although the Court has since granted certiorari to hear the Mississippi case on the merits of the constitutional challenge. The Court also did not reach the question of whether a longer election period injures voters by diluting their votes with the receipt of more ballots, which had been an issue in the lower courts.
At the time, I predicted that the Court might take the narrower but relatively obvious view that a longer election period imposes a traditional pocketbook injury — the easiest way to show standing is that you are challenging something that cost you money — but that there was a strong case for going further. Roberts went further.
Today’s Decision
Roberts began by noting possible injuries that might grant standing to a candidate, but that the Court didn’t need to reach: “An unlawful election rule can injure a candidate in several ways. It might cause him to lose the election. It might require him to expend additional resources. Or it might decrease his vote share and damage his reputation. . . [but] winning, and doing so as inexpensively and decisively as possible, are not a candidate’s only interests in an election.”
The Court then listed what those interests are:
Candidates also have an interest in a fair process. Candidates are not common competitors in the economic marketplace. They seek to represent the people. And their interest in that prize cannot be severed from their interest in the electoral process. . . . Win or lose, candidates suffer when the process departs from the law. Thus, the long-shot and shoo-in alike would suffer harm if a State chose to conduct its election by, say, flipping a coin. The result of such an election would not reflect the will of the people. . . . Similar harms would result from less dramatic departures — for example, if a State decided to discard a random 10% of cast votes. Whether these decisions help, hurt, or have no effect on a candidate’s electoral prospects, they deprive the candidate of a fair process and an accurate result.
This is not simply the general interest of voters in democracy: “a candidate’s interest differs in kind. An unfair and inaccurate election plainly affects those who compete for the support of the people in a different way than it affects the people who lend their support. . . . Those who spend untold time and resources seeking to claim the right to voice the will of the people have “an undeniably different — and more particularized — interest” in knowing what that will is.” [Quotation omitted.]
Roberts plainly had an eye on the past quarter century of disputed elections when he listed the next harm:
Rules that undermine the integrity of the electoral process also undermine the winner’s political legitimacy. . . . The counting of unlawful votes — or discarding of lawful ones — erodes public confidence that the election results reflect the people’s will. And when public confidence in the election results falters, public confidence in the elected representative follows. To the representative, that loss of legitimacy — or its diminution — is a concrete harm. Reputational harms, as a general matter, are classic Article III injuries. . . . But they are particularly concrete for those whose very jobs depend on the support of the people. [Quotations omitted.]
Picking up on a hypothetical posed at argument by Justice Samuel Alito, Roberts added:
Each runner in a 100-meter dash, for example, would suffer if the race were unexpectedly extended to105 meters. . . . Whether a particular runner expects to finish strong or fall off the pace in the final five meters, all would be deprived of the chance to compete for the prize that the rules define. The fastest to run 105 meters has not won the 100-meter dash.
The justices were plainly disturbed when the argument focused on requiring candidates to show, in advance of an election, that the election would be competitive enough that the additional votes would swing it (a standard used in post-election cases, when courts are hesitant to hear challenges that won’t affect the outcome). This would require courts to play pundit, would require safe incumbents to pretend to be endangered, and would shut third-party candidates out of having the same legal rights as major-party candidates. Both Roberts and Barrett preferred rules that would avoid those pitfalls. As Roberts wrote:
Premising standing on a candidate’s risk of election loss or failure to achieve a certain vote threshold could channel many election disputes to shortly before election day — or worse, after. Only then will many candidates be able to predict with any certainty that a rule will be outcome determinative. . . . The democratic consequences can be even more dire if courts intervene only after votes have been counted. “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” [Quoting Justice Antonin Scalia in the Bush v. Gore litigation.] . . .
Respondents’ and the dissent’s approach would convert Article III judges into political prognosticators and invite findings on matters as to which neither judges nor anyone else can have any confidence. . . . As a number of prominent historical figures can attest, not least among them Charles Evans Hughes and Thomas Dewey, accurately predicting electoral outcomes is not a simple endeavor. . . . And if the prognosticators themselves lack the political clairvoyance to predict the winner after all votes have been cast, then surely judges are poorly positioned to assess whether a candidate’s risk of loss, months earlier, is substantial. [Quotations omitted.]
Roberts added that courts already hear many preelection challenges, including those brought by voter groups and political parties, so allowing candidates to sue is unlikely to work an enormous sea change in election law.
Concurrence and Dissent
Barrett, often a hawk on standing issues, argued that the new “bespoke” standing rule was novel and unnecessary: “Elections are important, but so are many things in life. We have always held candidates to the same standards as any other litigant.” But she also considered it unnecessary because a longer election necessarily costs more money:
[Bost] claims that Illinois’s ballot-receipt deadline will increase the number of late-arriving ballots, which often “have discrepancies (e.g., insufficient information, missing signatures, dates, or postmarks) that need to be resolved.”. . . Invalid ballots, he says, will put his election at risk and damage his reputation. To avoid these reasonably probable harms, his campaign “has spent, and will spend, money, time, and resources to monitor and respond as needed to ballots received by state election officials after the national Election Day.”. . . If poll watchers are not present to monitor ballot counting, county officials could “accep[t] possibly deficient ballots in bulk.”. . . Accordingly, it is standard practice for campaigns to send poll watchers to monitor ballot counting to ensure that any discrepancies are resolved appropriately. See Brief for League of Women Voters et al. as Amici Curiae 20 (calling it “political malpractice” for candidates not to monitor ballot counting in their races).
Notably, the endorsement of the legitimacy of poll-watching to ensure the integrity of the ballot by Barrett and by the League of Women Voters was joined by Kagan. Jackson brushes this aside as a self-inflicted choice by Bost, but even she says, “I do not reject the view that it is reasonable to employ poll watchers to monitor discrepancies in the vote count as a general matter.”
Jackson’s argument, in a nutshell, is that it’s completely speculative to think that any votes will be counted after the deadline, even though Bost was able to demonstrate from years of running for office in Illinois that this happens every time. After an extended rant about how “our democracy” should value voters over candidates, she concludes with a strained-to-the-point-of-parody analogy to a 1983 case in which the Court ruled that a man subjected to a chokehold by the Los Angeles cops couldn’t show that he, personally, was likely to be in a chokehold again. But it is entirely predictable that an extended deadline will result, over and over, in the counting of late-arriving votes.