An attorney for veteran downstate Republican U.S. Rep. Mike Bost told the U.S. Supreme Court on Wednesday that Illinois’ post-election mail-in ballot-counting law created the potential for reputational and financial harm to the congressman and he should be allowed to sue to try to overturn it.

But a lawyer for the state of Illinois argued that lower federal courts correctly found Bost lacked standing to challenge the law and that with the dominant electoral successes of the six-term congressman from Murphysboro, he had failed to show how it had caused him harm at a level to meet rules required to contest laws in federal court.

Beneath the nearly two hours of oral arguments in the case was the fate of Illinois’ 2015 election law that allows mail-in ballots to be counted for up to 14 days after the election as long as they were postmarked or certified by Election Day.

Bost first challenged the law in May 2022, assisted by the conservative legal organization Judicial Watch, contending ballots should be counted on Election Day and that post-election counting threatened to dilute his margin of victory and required him to spend money on ballot watchers for the extended time period, causing him reputational and financial injury.

But the state has countered that the law does not extend the election beyond Election Day but merely is counting properly cast ballots. The law, in part, was aimed to assist overseas military members cast ballots, creating an irony to Bost’s challenge. He is a Marine veteran who also chairs the House Veterans’ Affairs Committee.

While the case has been pending in court, the U.S. government backed the Illinois law during Democrat Joe Biden’s administration. But Wednesday found the government siding with Bost’s efforts to gain standing to challenge it.

Overall, the justices appeared dissatisfied with the arguments presented by both sides, but the court’s conservative majority appeared to side with giving Bost the ability to sue, warning that conditioning challenges to such a law based on a candidate’s likelihood of success as Election Day looms could create what Chief Justice John Roberts called a “potential disaster.”

“You’re saying if the candidate is going to win by 65%, no standing. But if the candidate hopes to win by a dozen votes, and there are places in the country where that happens over and over again, then he has standing,” Roberts said to Illinois Solicitor General Jane Notz.

“But we’re not going to know that until we get very close to the election, right? And so it’s going to be in the middle, in the most fraught time for the court to get involved in elections. That’s when you say we should jump in?” the chief justice said.

But Notz sought to avoid applying a percentage test for a candidate’s ability to sue, saying instead that existing rules of facing the potential for “substantial” harm were sufficient and that Bost had failed to meet them.

“This court should hold candidates to the same standing requirements as every other plaintiff. And when those requirements are applied to this record, Congressman Bost doesn’t come close to showing standing,” Notz told the justices.

Attorney Paul Clement, a former U.S. solicitor general during the George W. Bush administration, represented Bost and Judicial Watch. Clement argued that “candidates have a unique, concrete and particularized interest in the rules of the electoral road, especially those that address which ballots are going to be counted and when.

“At a bare minimum, a longer campaign is a more expensive campaign and that classic pocketbook injury is sufficient to give Congressman Bost standing,” Clement said. “Every candidate cares very deeply and uniquely about the outcome of the election, but also their vote tally and the margin of victory and margin of defeat. And the idea that all a candidate can care about is the ultimate win or lose, I just don’t think that maps out the way elections actually operate or people think about them.”

“If you ask candidates, ‘Would you like to win this election by 60% of the vote or 51% of the vote,’ I think 100% of the candidates are going to say, ‘I’ll take the 60%,” Clement argued.

Bost, whose sprawling district currently makes up the bottom one-third of Illinois, is one of three GOP members of Congress in Illinois’ 17-member House delegation.

Representing a heavily Republican district, he has received at least 60% of the vote in his last three general elections, though he won last year’s GOP primary by a narrow 3 percentage points over Darren Bailey, who lost a bid for governor in 2022 and is running again in 2026 to challenge Democratic Gov. JB Pritzker.

“Desire to run up the score is not a concrete injury that history and tradition shows can support standing to sue,” Notz, representing the State Board of Elections, told justices.

Notz noted that Bost has run several times under the post-election ballot-counting law and “I don’t understand him ever to have suggested that he somehow was illegitimately elected.”

Justice Brett Kavanaugh asked Notz, “You’re just saying he didn’t say anything to show that he’s going to be harmed at all by the new” law?

“That’s exactly our position,” Notz said.

Justice Samuel Alito questioned why Clement “couldn’t have done a lot better” in his complaint “and alleged what I think a lot of people believe to be true, which is that loosening the rules for counting votes like this generally hurts Republican candidates and generally helps Democratic candidates.”

But Justice Neil Gorsuch contended Bost’s argument of having to expend money beyond election day for ballot observers was an “obvious” rationale for allowing him to sue.

“Without getting into all this other stuff, that’s just obvious standing. You have to spend more money to staff an extra two weeks,” Gorsuch said.

But Notz said even excluding the mail-in ballot provision, the state still allows two weeks for the counting of provisional ballots that a candidate might seek to staff.

There was no indication from the justices on when they would issue a ruling.

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