Richard Bernstein in “Election Law Blog”: “Bost is a Boost for Democracy”
Society for the Rule of Law Charter Member Richard Bernstein wrote a guest post for Election Law Blog analyzing the Supreme Court’s new decision in Bost v. Illinois State Bd. of Elections. He celebrates the outcome as a victory for the rule of law, establishing a valuable new bulwark against Executive Branch interference in the electoral process.
The Supreme Court’s recent judgment, decided on Tuesday January 14th 2026, gave Illinois Congressman Michael Bost standing to challenge a state election law that allowed mail-in ballots to be counted within two weeks after Election Day. The decision, “ruled that candidates have Article III standing to raise federal claims challenging government action affecting ‘the counting of votes.’ Slip op. at 3. Moreover, the candidate has standing before, and regardless of whether, the illegal actions ‘help, hurt, or have no effect on a candidate’s electoral prospects.’ Slip op. at 4.” The Court now allows candidates to litigate problems in elections without having to identify a direct harm to their chances of a successful outcome, granting that their participation in the election itself automatically gives them standing. This removes pressure to wait until an election has already been decided and decreases the likelihood of the chaos and tension caused by post-election litigation. “Candidates will have no excuse for making claims after the election that could have been made before, contrary to the equitable doctrine of laches and the Due Process Clause. Bost makes plain that its broad grant of standing is designed to prevent channelling ‘disputes into postelection litigation.’ Slip op. at 8.”
The Bost decision not only reduces the chances of post-election litigation, but also impacts how candidates could respond to potential presidential interference. “The elephant in the room for postelection subversion of the 2026 elections is unilateral actions by President Trump, not postelection litigation.” The President has recently told the New York Times that he wishes he had seized voting machines during the 2020 election. “The obvious threat is that in the 2026 election cycle, the President will attempt to seize voting machines, ballots, or both.” Bost, by giving standing to any candidates in an election, without requiring a need to demonstrate direct harm or count the votes after Election Day, allows candidates to sue against executive involvement proactively, “and to do so before illegal counting of votes, or preventing counting, starts and with no need to show that illegal action is likely to changes the margins or outcome.” The Constitution, through the Elections Clause, strongly bars against Executive Branch interference in federal elections. “It is in our constitutional DNA that, without statutory authorization, the Executive Branch neither counts the votes for Congress nor can interfere with state officials to whom state law assigns the role of counting votes in congressional elections.”
By giving any candidate in an election standing to sue against subversion or violation of the electoral rules, “Bost should provide a warning that the Court will fulfill its responsibility in a case brought by a candidate, or another person or entity with standing, to prevent unilateral executive branch usurpation of the authority assigned by the Constitution and pertinent statutes to state officials to count the votes and announce the results.”
Read the article here.