(The Center Square) – In a move that could have major implications for election procedures across the country, the U.S. Supreme Court has agreed to take up a case brought by Judicial Watch challenging whether federal courts have jurisdiction to hear disputes over ballots received after Election Day.
Illinois U.S. Rep. Mike Bost, R-Murphysboro, and two electors sued over ballots counted after Election Day. Illinois allows for mail-in ballots to be counted up to two weeks after Election Day, if the ballots are postmarked by Election Day.
The case was dismissed for lack of jurisdiction in a lower court, but the U.S. Supreme Court announced Monday it will review it, according to Bost’s attorney Russell Nobile.
“This isn’t about whether counting ballots after Election Day is unlawful – that’s not what’s being decided yet,” Nobile told The Center Square shortly after SCOTUS agreed to look at the case. “The Supreme Court is first going to decide whether federal courts even have the power to hear these types of challenges.”
Nobile explained the case is key to resolving a split between appeals courts, with the Fifth Circuit calling late ballot counting unlawful and the Seventh refusing to hear such cases.
“This practice of counting late ballots is relatively new – it really started gaining ground after Bush v. Gore,” Nobile saidd. “For most of American history, ballots had to be received by Election Day.”
If the Supreme Court affirms jurisdiction, the case returns to the Seventh Circuit. A win there could affect federal elections in that circuit. A possible Supreme Court ruling on the issue down the road could apply nationwide.
Nobile explained it’s important to have courts open to candidates to promote election integrity and confidence in the electoral process.
“The public needs to know that these concerns can be heard and ruled on,” said Nobile. “Even if a candidate doesn’t win on the merits, the process has to be transparent. That’s essential to maintaining trust in our elections.”
The plaintiffs argue that extending the ballot-counting period burdens campaigns. Bost, representing 34 counties, faces financial and logistical costs for keeping his campaign open 14 extra days. Judicial Watch claims these costs create a constitutional injury, establishing standing.
“If you’ve ever run any kind of organized effort, like a campaign or even a Girl Scout troop, you understand that extending things by 14 days costs time, energy and money,” Nobile said. “This is an institutional issue. It’s about ensuring there’s a legal forum where candidates can raise legitimate questions about how our elections are run. That’s crucial to a well-functioning democracy.”
