The Center for Election Confidence (CEC) filed an amicus brief in Bost v. Illinois State Board of Elections, urging the U.S. Supreme Court to reverse the Seventh Circuit’s decision adopting a restrictive new standing test for candidates challenging election regulations.
CEC argued that the Seventh Circuit improperly required candidates to prove that a challenged election rule would cause their electoral defeat, an “avoiding defeat” standard CEC has described as “wholly unworkable” and “a radical sea change in election litigation.” The panel’s test, CEC explained, “essentially smuggled into its standing test the substantive standard for post-election contests” and would foreclose legitimate challenges by longshot or minority-party candidates. As the brief warns, “standing must not be used to entrench incumbents, who already have ample built-in advantages.”
CEC’s brief emphasizes that candidates and political parties have a direct interest in ensuring election integrity, regardless of whether they can prove a regulation would alter the outcome. “The essence of the panel’s approach is to use standing doctrine to say that election fraud or irregularities must be tolerated unless a candidate can demonstrate that his opponent will benefit more from the challenged practice.” Such a rule, CEC argued, disregards the Court’s precedent that standing “does not depend on the merits of a claim.”
The recent phenomenon and innovation of extending ballot receipt deadlines creates a real risk of fraud and irregularities that, under the Seventh Circuit’s “avoiding defeat” standard, would have to be tolerated by candidates. CEC highlights the risks of unverified mail-in voting and extended ballot receipt deadlines, noting that “mail-in voting lacks a historical pedigree and carries unique risks to the election process.” CEC’s brief cites examples of irregularities involving mail ballots and stresses that “[f]raud is a real risk that accompanies mail-in voting,” quoting the Court’s decision in Brnovich v. Democratic National Committee (2021). It warned that allowing ballots to be received after Election Day “opens up one of the greatest risks” of destabilizing results, delays, and public distrust in elections.
Finally, CEC argues that the Seventh Circuit’s rule imperils political party standing as well. Parties, like candidates, must be able to challenge election rules that harm their ability to support preferred candidates and voters. Quoting Williams v. Rhodes (1968), the brief reaffirmed that the ability of citizens to band together in political parties “is among our [Nation’s] most precious freedoms.” Denying parties standing, CEC warned, “threatens political parties’ ability to assert claims on behalf of their candidates as well as their members and the voters who support them.”
CEC concluded that the Supreme Court should reverse, declaring that the Seventh Circuit “panel’s standing analysis was not just wrong. It is wholly unworkable and creates intolerable risks for blocking access to the courts for all manner of legitimate claims by candidates and parties.”
The Center for Election Confidence thanks Bradley A. Benbrook and Stephen M. Duvernay of Benbrook Law Group for their representation in this matter.