Kagan Ignores Standing Issues That Hamstring GOP Election Suits

During a pivotal Supreme Court hearing on Wednesday, Associate Justice Elena Kagan attempted to dismiss the notion that Republicans face greater difficulty acquiring standing to challenge election rules than Democrats do.

The incident happened during oral arguments in Bost v. Illinois State Board of Elections, a case concentrated on a 2022 lawsuit filed by Rep. Mike Bost, R-Ill., and two other Republicans against Illinois’ election board that challenges the legality of a state law permitting ballots to be accepted up to two weeks after Election Day. Bost and Co.’s suit was dismissed by lower courts over alleged “lack of standing,” prompting them to ask the Supreme Court to address the “sole question” of whether they, “as federal candidates, have pleaded sufficient factual allegations to show Article III standing to challenge state time, place, and manner regulations concerning their federal elections.”

Acquiring standing to challenge election rules has been a persistent problem for (mainly) Republicans in recent years. As The Federalist previously reported, “It was at the forefront of several prominent lawsuits filed contesting the 2020 presidential election cycle, as well as a case involving a challenge to then-President Biden’s ‘Bidenbucks‘ executive order.”

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Kagan appeared to downplay such an issue when questioning Bost’s attorney, Paul Clement. Limiting her focus to Republicans and Democrats, the Obama appointee probed the lawyer on how “in a lot of these suits, it’s the parties that sue” and that, “as Justice [Samuel] Alito suggested, it’s usually fairly predictable what rules the RNC is going to sue on and what rules the DNC is going to sue on, and both have their favorite rules and their disfavored rules.”

“[U]sually, we don’t think about standing in that area. But … I would think that the same standard should basically apply, that whether we think about it or not, what we’re really asking is, is this the kind of rule that is likely to put your candidate at a disadvantage relative to where he was before?” Kagan said. “[D]o you think that there’s some separate inquiry for individuals, for candidates, as opposed to parties when they sue for these rules?”

Responding in the negative, Clement said that “if anything, I think the candidates are more obvious, but I don’t think it’s a radically different proposition.” He went on to note how oftentimes “in these cases, when the party sues, they often couple themselves with a candidate or voters,” and that an issue arises in such cases because Republicans and Democrats typically challenge different types of election rules.

“[T]he rules that the Democrats don’t like tend to operate negatively directly on voters. And so … when the Democrats come in, they can marry up with a couple of voters and the court can say the voters have standing, so we’re done; we don’t even have to think about the party or the candidate,” Clement said. “The Republicans in a lot of these cases are challenging rules that allow you to keep counting ballots forever, keep the voting place open forever.”

While accepting Clement’s point, Kagan claimed that “that doesn’t prevent the Republicans from getting into court and making their claim. It never has.” More notably, however, she attempted to argue that “the RNC challenges most of these kinds of rules and, as far as I know, nobody has ever kicked it out of court on standing grounds.”

Clement expressed uncertainty as to whether or not Kagan’s claim was accurate but said that “it’s a lot harder for the Republicans in some of these contexts because they can’t just marry themselves up with a voter.” He furthermore added that history on the federal candidate standing question is lacking because “until relatively recently, everybody kind of just thought it was the most obvious thing in the world.”

“I’m here to urge, let’s return to simplicity,” Clement said. If “you’re a candidate [or] you’re a party, of course you have standing.”

Clement later used his rebuttal time at the end of the hearing to seemingly refute Kagan’s claim that groups like the RNC have never lost on standing in election litigation.

The attorney specifically highlighted a 2024 case (RNC v. Burgess) referenced in plaintiffs’ November 2024 petition to SCOTUS. As summarized by the Public Interest Legal Foundation, the lawsuit — which was dismissed by a district court over alleged lack of standing — challenged “Nevada’s acceptance of ballots that arrive up to four days after Election Day.”

Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood