Bost v. IL Bd. of Elections (24-568)
argument 24-568Bost v. IL Bd. of Elections
Supreme Court of the United States
1h 43m
8 speakers
8 chapters
transcribed 1 month ago
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What is the petitioner's main argument for why candidates should have standing to challenge ballot‑counting rules?
We will hear argument first this morning in case 24568, Bost v. the Illinois State Board of Elections.
Mr. Clement. Mr. Chief Justice, and may it please the Court, Illinois counts mail-in ballots received up to two weeks after Election Day. Petitioners contend that under controlling Federal law, that is two weeks too long. As a result, if the petitioner's merits theory is credited, which it must be for evaluating standing, then Illinois is counting unlawful ballots. Those unlawful ballots could cost Congressman Bost the election or at least reduce his margin of victory, and he has to pay his campaign staff for two extra weeks. All of that means that Congressman Bost has standing three times over. The Court below lost sight of that straightforward conclusion only by misreading this Court's precedents and misperceiving candidates who pour untold time and treasure into the election and are the ones whose names are actually on the ballot as mere bystanders with a generalized grievance.
That decision is not only wrong but dangerous. It needlessly injects Federal courts into the role of political prognosticators and It risks denying judicial access to minor party candidates, and it shuffles election disputes into the closest races and the worst possible context, election disputes after the election where federal courts are in the uncomfortable position of having to pick the political winners. There is a better way, and it simply requires acknowledging that candidates have a unique concrete, and particularized interest in the rules of the electoral road, especially those that address which ballots are going to be counted and when. At a bare minimum, a longer campaign is a more expensive campaign, and that classic pocketbook injury is sufficient to give Congressman Bost standing.
There is no need to make the standing inquiry here any more complicated than that. I welcome the Court's questions.
Mr. Clement, how do we know that a petitioner will suffer a risk of competitive harm?
So in some respects, we know that from the very fact that he is a candidate in the election. I mean, obviously, he's put that in a declaration as well. But I think this is something where every candidate cares very deeply and uniquely about the outcome of the election, but also their vote tally and the margin of victory or the margin of defeat. And this idea that, like, all a candidate can care about is the ultimate win or loss, I just don't think that maps on to the way elections actually operate or people think about them.
Well, I think you could argue that he will actually benefit from the additional tally.
Well,
someone has to benefit, or there wouldn't be a risk of competitive harm.
I suppose any time the government changes the rules for any highly regulated activity, it may be that some of the people that are affected by the new regulations are actually going to be better off. They may be better off, better able to sort of incur the costs, or they may be better able to take advantage of that additional time. Here, Congressman Bost has alleged that, no, this is going to hurt his sort of margin for victory. But I also think, as a general matter, I'm not even sure you need to get to that level, which is to say, if this were just a simple regulated industry, if the SEC promulgated new rules for registered broker-dealers, you'd expect the broker-dealers, some of them, to come and sue about those new rules.
I think you wouldn't be that worried that broker-dealers were coming in and actually suing for rules that helped them. That's
the point,
though,
that this regulation is not of a broker-dealer. It's not of the candidate. It's of voters. So it's not a direct regulation. But going back to your margin of victory, in the case where we decided that a campaign ad had standing, In that case, there were affidavits that said these ads increase the amount of revenue we receive or can decrease it. So there was an affidavit that said that. Here, you don't even say that the margin of error is going to affect. You don't have anybody saying anything close to that.
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Chapters
8 chapters
1
What is the petitioner's main argument for why candidates should have standing to challenge ballot‑counting rules?
0:00–14:40
2
How does counsel explain the concept of a ‘pocket‑book injury’ and its relevance to standing in this case?
14:40–26:10
3
Why does the Court consider whether the candidate or the voter is the direct object of the election regulation?
26:10–38:33
4
What practical harms, such as campaign costs and monitoring, does counsel argue result from the extended ballot‑receipt deadline?
38:33–51:16
5
How do the justices question the difference between pre‑election and post‑election standing challenges?
51:16–1:05:32
6
What threshold of electoral risk (e.g., margin of victory) does counsel suggest is sufficient for standing?
1:05:32–1:17:33
7
Why do some justices worry that a blanket candidate‑standing rule could create chaos for election officials?
1:17:33–1:30:43
8
What is the final summary of counsel’s position on why a candidate is not a mere bystander in his own election?
1:30:43–1:43:43