Election Day Means ELECTION DAY: ACLJ Files Crucial Brief Defending Candidates’ Right To Challenge Unconstitutional Election-Extending Laws

At the ACLJ, we have long stood as guardians of constitutional liberties and defenders of election integrity. From our successful representation in Bush v. Gore to our recent work in the landmark Trump ballot ban case, Trump v. Anderson, the ACLJ has consistently fought to ensure that American elections are conducted according to the rule of law.

Today, we face a new threat to constitutional governance – one that strikes at the very heart of our ability to challenge unlawful election practices in federal court. The Seventh Circuit Court of Appeals has erected an unprecedented and impossible barrier that could effectively immunize state election laws from constitutional scrutiny. That’s why the ACLJ has filed a crucial amicus brief in Bost v. Illinois State Board of Elections, urging the U.S. Supreme Court to reverse this dangerous precedent and protect election integrity.

The Seventh Circuit’s Unprecedented “Lose the Election” Standard

The case involves U.S. Rep. Michael Bost (IL-12), who challenged Illinois’ law allowing mail-in ballots to be received and counted up to 14 days after Election Day. This extended deadline forced Rep. Bost to recruit additional poll watchers, extend his monitoring operations, and keep his campaign headquarters open for two extra weeks – imposing concrete monetary costs on his campaign.

Despite these clear, tangible injuries, the Seventh Circuit denied Rep. Bost standing to challenge the law. Why? Because he won his election.

The court invented an entirely new and unprecedented standard, ruling that candidates must somehow allege that the challenged election law “would cause them to lose the election.” This is not just wrong – it’s constitutionally impossible and creates an unworkable catch-22 that no candidate can satisfy.

A Dangerous Departure From Established Precedent

For decades, the Supreme Court has recognized that political candidates are uniquely positioned to challenge election laws that directly affect them. From Bush v. Gore to Cook v. Gralike, from McPherson v. Blacker to Anderson v. Celebrezze, the Court has consistently held that candidates need only demonstrate concrete injury from allegedly unconstitutional election laws – not prove electoral defeat.

As Justice Kennedy noted in Cook v. Gralike, “Actions such as the present one challenging ballot provisions have in most instances been brought by the candidates themselves, and no one questions the standing” of candidates to raise constitutional challenges to election laws.

The Seventh Circuit’s ruling abandons this well-established precedent and substitutes a crystal-ball standard that requires prophetic insight about electoral outcomes. Under this reasoning:

• Successful candidates, such as Rep. Bost, lack standing because they won their elections.
• Unsuccessful candidates face the impossible burden of proving the challenged law cost them the election.
• All candidates must somehow predict electoral outcomes at the motion-to-dismiss stage, without discovery.

The ACLJ’s Commitment to Election Integrity

This case represents exactly the kind of constitutional crisis the ACLJ was founded to address. Throughout our history, we have stood as unwavering defenders of election integrity and constitutional governance. Just in the last few years:

• We filed crucial briefs in Trump v. Anderson, where the Supreme Court unanimously held that states cannot unilaterally enforce Section 3 of the Fourteenth Amendment against federal candidates.
• We’ve fought for election integrity in Beals v. Virginia Coalition of Immigrant Rights, defending Virginia’s voter rolls against the Biden Administration’s threats to the constitutional requirements for voter eligibility.
• We’ve consistently advocated in cases like Republican National Committee v. Genser, where we defended against improper changes to election procedures that threatened the integrity of the electoral process.
• We’ve defended constitutional liberties in landmark First Amendment cases that protect the very foundations of democratic participation.

All Americans, regardless of political affiliation, deserve elections conducted according to the rule of law, with clear deadlines, transparent processes, and meaningful opportunities for constitutional challenge when those processes go awry.

The Broader Constitutional Crisis

The Seventh Circuit’s decision creates more than just a standing problem – it threatens the fundamental uniformity that federal elections require. Congress has established a single Election Day for federal elections, mandating that “the Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election.”

As the Fifth Circuit recently recognized in Republican National Committee v. Wetzel, allowing ballot receipt after Election Day conflicts with federal law’s requirement of a uniform Election Day. The court emphasized that “while election officials are still receiving ballots, the election is ongoing: The result is not yet fixed, because live ballots are still being received.”

If the Seventh Circuit’s ruling stands, we face a constitutional nightmare: different circuits applying different standards, with some states required to comply with Election Day requirements while others operate under extended deadlines that no one has standing to challenge.

The requirement that ballots be received and counted by Election Day isn’t merely a technicality – it’s fundamental to maintaining public confidence and constitutional order in our electoral system. When states extend ballot receipt deadlines beyond the federally mandated Election Day, several critical problems emerge that undermine the very foundations of democratic governance.

First, extended deadlines create an unequal electoral playing field. Candidates must continue campaigning, spending resources, and maintaining uncertainty about results long after Election Day has passed. This forces candidates like Rep. Bost to expend additional funds on poll monitoring and legal oversight for weeks beyond what federal law contemplates, creating concrete financial burdens that flow directly from the state’s deviation from federal requirements.

Second, prolonged ballot receipt periods erode public confidence in electoral outcomes. When Americans go to bed on Election Night without knowing who won their elections, and when results can shift dramatically based on ballots received days or weeks later, trust in the electoral process suffers. The founding generation understood that swift, decisive electoral outcomes were essential to maintaining legitimacy and preventing the kind of prolonged uncertainty that breeds suspicion and undermines democratic institutions.

Third, extended deadlines invite litigation, confusion, and potential manipulation. The longer the window for ballot receipt remains open, the greater the opportunities for disputes about postmarks, delivery delays, and the integrity of late-arriving ballots. A clear, uniform deadline eliminates many of these potential controversies and provides the certainty that both candidates and voters deserve.

Finally, federal law demands uniformity in the timing of federal elections. Congress established a single Election Day precisely to ensure that all Americans participate in choosing their representatives on the same terms and under the same timeline. When states deviate from this uniform standard, they fragment the federal electoral system and create the kind of patchwork approach that the Elections Clause was designed to prevent.

Why This Matters for Every American

The Seventh Circuit’s decision doesn’t just affect Rep. Bost – it threatens every American’s right to constitutional elections. If candidates cannot challenge potentially unconstitutional election laws, then who can? The court’s reasoning would effectively immunize state election codes from meaningful judicial review.

Consider the implications:

• States could extend ballot receipt deadlines indefinitely.
• Election laws could violate federal constitutional requirements without remedy.
• The uniformity essential to federal elections would disappear.
• Public confidence in electoral integrity would erode.

This is precisely why the ACLJ exists – to stand in the breach when constitutional principles are under attack, to fight for the rule of law even when the stakes are highest, and to ensure that no government entity operates beyond the reach of constitutional accountability.

Our Argument to the Supreme Court

In our amicus brief, we make several crucial arguments:

First, the Seventh Circuit’s “lose the election” standard finds absolutely no support in Supreme Court precedent. It represents a dangerous judicial invention that contradicts decades of established law recognizing candidates’ special position to challenge election regulations.

Second, Rep. Bost suffered concrete injuries that easily satisfy traditional standing requirements. Illinois’ extended deadline forced him to spend additional money on poll monitoring, campaign operations, and legal compliance, altering the electoral playing field out from under him – the exact type of particularized, tangible harm that Article III demands.

Third, the decision creates an impossible evidentiary burden that no candidate can meet. Requiring plaintiffs to prove that election laws will determine electoral outcomes transforms standing doctrine from a threshold inquiry into a prediction exercise about future electoral results.

Fourth, the importance of uniform federal election administration demands that candidates have meaningful opportunities to challenge potentially unconstitutional state laws. Without such challenges, the federal election system fragments into a patchwork of conflicting state practices.

The Path Forward

The Supreme Court must reverse this dangerous precedent and restore the established understanding that candidates suffer concrete injury when forced to campaign under allegedly unconstitutional election laws. The standing inquiry should focus on concrete harm – not electoral odds.

Article III requires injury, not electoral defeat. When states change the rules governing federal elections, forcing candidates to spend additional resources and operate under different parameters, those candidates have suffered the precise type of concrete, particularized injury that our constitutional system recognizes.

We urge the Supreme Court to reverse the Seventh Circuit’s decision and reaffirm that American elections must operate according to constitutional principles, with meaningful opportunities for judicial review when those principles are violated. The integrity of our democratic system depends on it. And the ACLJ will continue standing guard, defending the Constitution and the electoral processes that sustain our republic.