At the Supreme Court, the case of the candidate who sued, even though he won : NPR

At the Supreme Court on Wednesday, both conservative and liberal justices appeared to do neither side any favors in a case that tests voting rules in Illinois. The often irritated judges teamed up to have a little fun at the expense of two experienced lawyers.

At issue was a lawsuit by Rep. Michael Bost, R-Ill., challenging the constitutionality of an Illinois regulation that allows mail-in ballots by Election Day to be counted up to 14 days after the polls close. Lower courts ruled against Bost after finding he failed to prove voting rules caused him individual harm after winning.

Representing Bost, former U.S. Attorney General Paul Clement argued that Bost suffered from mail-in ballots because they reduced his margin of victory and because he had to pay staffers during the two-week vote count. But Chief Justice John Roberts and Justice Elena Kagan weren't buying it. Bost's argument, according to Roberts, boiled down to the following: “Hey, I'm a candidate. These rules apply to me and I am suing.”

Judge Samuel Alito continued, telling Bost's lawyer, “I don't understand why you couldn't have done much better than you did in your complaint and stated what I think many people believe to be true, which is that such loosening of vote-counting rules generally hurts Republican candidates and generally helps Democratic candidates.”

Justice Sonia Sotomayor continued, noting that Bost's brief “does not even reflect our legal language. You haven't given any facts.”

When the justices asked whether candidates who have no realistic chance of winning the election should automatically be able to sue, Clement responded with a perhaps ironic statement: “I'm going to support the candidate with 2% of the vote. I stand shoulder to shoulder with the Socialist Workers Party and other candidates who receive very few votes.

“You take on interesting buddies,” Sotomayor observed. Justice Neil Gorsuch seemed to agree, noting that in a previous Socialist Workers Party case: “Well, they had zero chance of winning the election, zero chance.”

Next at the lectern was Illinois Solicitor General Jane Notz, who began by describing how, under Bost's preferred rule, “any self-appointed candidate may challenge any election rule with which he has a political disagreement, even if that rule is entirely harmless.”

However, she quickly ran into trouble by declaring that only candidates with a fighting chance of winning the election could sue.

“What you are painting us is a potential disaster,” Chief Justice Roberts responded.

Alito asked whether Notz “seriously argues that finding these allegations sufficient requires an analysis of the specific background and experience of the complainant?”

Gorsuch questioned whether there was “something improper about federal courts making predictions about a candidate’s chances of success just before an election. What do you think?

And Justices Brett Kavanaugh and Ketanji Brown Jackson seemed to agree that Illinois was “moving away” from the arguments laid out in its own brief. Of course, Kavanaugh said, “It’s your choice.”