The Supreme Court will wrestle with a question on Wednesday that, depending on the answer, could open up broad avenues for President Donald Trump to manipulate elections and the courts while continuing his assault on the nation with bogus claims of election fraud.
And it’s all courtesy of a case where Trump isn’t even a plaintiff or defendant. Technically speaking, he’s not involved in the case at all. But his shadow and his history of election denialism loom large.
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The case in question is Bost v. Illinois, which focuses on mail-in election ballots and specifically addresses who has the right to challenge them. The court will weigh whether allegations of a possible or future injury to a federal candidate’s campaign –– like costs associated with counting or verifying mail-in ballots up to two weeks after Election Day — are enough to give that person the right, or “standing” to sue.
The case originates from Rep. Mike Bost (R-Ill.), a Trump ally involved in the effort to overturn Joe Biden’s 2020 victory, and Republican presidential electors Laura Pollastrini and Susan Sweeney, all of whom sued the Illinois State Board of Elections in 2022.
They claimed that allowing mail-in ballots to be counted after an election has been held is illegal and pointed to two clauses in the Constitution that govern the schedule for counting votes. Illinois state law allows ballots cast in federal elections to be counted for up to 14 days after Election Day, provided the ballot was postmarked or certified before Election Day.
Currently, states have varying sets of rules regarding the handling of mail-in ballots, absentee ballots and early voting. Some states will allow ballots to be counted if they are postmarked on or before Election Day; others have restrictions for mail-in ballots, such as only being available to people with a legal or medical excuse.
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Bost argued that allowing “untimely votes,” or those received by mail after an election, ”dilutes” the election results overall. Bost alleged that if his campaign had to count or challenge mail-in votes after Election Day, it would force him to foot costly bills or divert other resources.
The State of Illinois argued that mail-in voting isn’t about diluting the vote at all, and to the contrary, it expands access to the ballot box for all Americans — including those who are overseas or serving in the military.
The state sets the deadlines so that voters are assured their ballots aren’t “rejected merely because of delays attributable to the Postal Service, which are beyond the control of voters,” Amanda Kozar, the Illinois assistant attorney general, argued in a July 2020 motion.
The merits of Bost’s voter dilution claims aside, Illinois asked the court to rule that Bost lacked standing because he couldn’t prove an injury where none had yet occurred. And Bost, as it turned out, didn’t have much to complain about: He won his election.
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Ultimately, in 2023, U.S. District Judge John Kness, a Trump appointee, ruled that Bost lacked standing to sue because he had not actually proved how existing election laws injured him or his campaign.
In the past, injury as a requirement for standing has been established in other matters, such as challenges to racially cherry-picked districts. The Supreme Court found in the 2015 case Alabama Legislative Black Caucus v. Alabama that voters in racially cherry-picked districts have standing to sue because they are subject to a specific classification and “because these voters have the strength of their votes diminished compared to voters of another race.”
Kness also put it on record that he agreed with the state: Deadline rules in Illinois did not infringe on the Constitution; they supported it.
“Many states have post-Election Day absentee ballot receipt deadlines, and at least two states other than Illinois allow mail-in ballots postmarked on or before Election Day to be counted if they are received within two weeks of Election Day,” Kness wrote.
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Bost appealed Kness’ ruling to the U.S. Court of Appeals for the Seventh Circuit, but he lost that case, too. The court ruled that his complaint was a “generalized grievance,” rather than the kind of specific injury that is required to sue.
After his loss at the appellate court, Bost, with the help of Judicial Watch, a pro-Trump uber-conservative activist group, elevated the question of standing to the Supreme Court, which agreed to hear it in June. The court, in weighing the arguments, will assess whether Bost has standing to sue, even when no injury may have occurred.
He’s had a boost from some unexpected allies: The League of Women Voters, represented by the ACLU, filed a brief arguing in support of Bost’s claim.
Celina Stewart, CEO of the League of Women Voters, told HuffPost via email on Oct. 1 that their reasoning for supporting Bost was simple.
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“Organizations that are directly impacted by election laws should be able to bring their concerns before the courts. Whether those challenges succeed is ultimately up to the courts considering the legal arguments,” she wrote. “We strongly disagree with Representative Bost’s claims in Illinois, but that does not mean he should be barred from bringing his case if his campaign had to expend resources to comply with the law.”
If the court rules in Bost’s favor, the precedent could echo far beyond this one case — particularly given Trump’s penchant for making loud but baseless claims of election fraud to sow distrust and undermine his political opponents.
In 2016, Trump claimed the election would be rigged against him, but only if he lost. When he won the election while losing the popular vote to Hillary Clinton that year, he baselessly insisted it was due to fraud. In 2020, after the COVID-19 pandemic forced Americans to social distance and cast more mail-in or absentee ballots than ever before, Trump insisted the election was rigged before a single vote was cast and he blamed, again without proof, voting machines as well as Americans casting mail-in votesas the inevitable culprit.This was a driving force behind his “Stop the Steal” campaign, which attempted to overturn the 2020 election and ultimately led to the insurrection at the Capitol on Jan. 6.
In 2024, Trump briefly changed his tune and encouraged his base to vote early or by mail. But this was only because, according to CBS News, his senior advisers were whispering in his ear that any vote for him was a vote that they needed to count.
Trump’s good feelings about mail-in ballots evaporated rather quickly, though: After winning the 2024 race — when mail-in ballots accounted for nearly 30% of all votes cast according to the Election Assistance Commission — Trump lumbered back to square one.
Just this August, he seethed on Truth Social that “ELECTIONS CAN NEVER BE HONEST WITH MAIL IN BALLOTS/VOTING” and vowed to end the process via executive order.
The Constitution does not grant the president the authority to dictate how elections are held or the manner in which they are conducted. That, like the deadlines Bost says he has the right to challenge, is up to the states. The states are subject to Congress, and only Congress has the final say on how federal elections are conducted.
A ruling loosening the requirements of standing, particularly in the context of election law, could give Trump and his political allies a strong precedent to rely on in upcoming elections. If paper-thin claims of injury are brought before a friendly judge, Trump or his political allies could throw wrenches into the election process itself and set the stage to make stronger claims that standard practices like mail-in voting are dangerous and inherently riddled with fraud. If the court rules against Bost, the bar to suing the state will remain high, and those who wish to bring a challenge will need to be prepared to demonstrate their case.
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