Exterior view of the U.S. Supreme Court on October 4, 2025.
Mehmet Eser/AFP via Getty Images
During Wednesday’s session at the Supreme Court, justices from both conservative and liberal wings showed a rare moment of unity, expressing skepticism toward both parties involved in a case scrutinizing Illinois’ voting procedures. The usually divided bench shared a lighthearted moment at the expense of two experienced attorneys presenting opposing arguments.
The dispute centers on a lawsuit filed by Representative Michael Bost, a Republican from Illinois, who challenges the constitutionality of a state rule permitting ballots postmarked by Election Day to be counted up to two weeks after polls close. Lower courts dismissed Bost’s claim, ruling that he lacked standing since he ultimately won the election and could not demonstrate personal harm from the regulation.
Paul Clement, former U.S. Solicitor General representing Bost, argued that the extended ballot counting period diminished Bost’s margin of victory and imposed financial burdens due to paying staff during the prolonged tally. However, Chief Justice John Roberts and Justice Elena Kagan were unconvinced. Roberts summarized Bost’s position as simply stating, “I’m a candidate, these rules apply to me, so I’m suing.”
Justice Samuel Alito added to the critique, suggesting that Bost’s complaint could have been more precise by acknowledging a widely held belief that relaxing vote-counting deadlines tends to disadvantage Republican candidates while benefiting Democrats.
Justice Sonia Sotomayor further noted that Bost’s legal brief failed to align with the Court’s established legal standards and lacked supporting factual evidence.
When questioned about whether candidates with no realistic chance of winning should have the right to sue, Clement responded with a hint of irony, stating, “I stand firmly with the 2% candidates, including those from the Socialist Workers Party,” referring to minor party candidates who receive minimal votes.
Sotomayor remarked on the unusual alliance Clement was embracing, a sentiment echoed by Justice Neil Gorsuch, who recalled a previous case involving the Socialist Workers Party where the candidates had virtually no chance of success.
Illinois Solicitor General Jane Notz then took the floor, cautioning that under Bost’s proposed standard, “Any candidate, regardless of viability, could challenge election rules simply because they disagree with them, even if those rules cause no harm.”
However, Notz encountered pushback when she argued that only candidates with a genuine chance of winning should have standing to sue.
Chief Justice Roberts warned that such a standard could lead to “a potential disaster.”
Justice Alito questioned whether Notz seriously believed that courts should evaluate a candidate’s background and electoral prospects to determine the sufficiency of their claims.
Justice Gorsuch expressed concern about the propriety of federal courts making predictions about a candidate’s likelihood of success just before an election, asking for thoughts on the matter.
Meanwhile, Justices Brett Kavanaugh and Ketanji Brown Jackson appeared to agree that Illinois was retreating from arguments presented in its own legal brief, with Kavanaugh remarking, “That’s your prerogative.”
