Standing in and after Bost

Controlling Opinions is a recurring series by Richard Re that explores the interaction of law, ideology, and discretion at the Supreme Court.

The Supreme Court’s recent decision in Bost v. Illinois State Board of Elections is the most fascinating standing case in some time. After Illinois adopted a procedure for counting mail-in ballots received after Election Day, Congressman Michael Bost claimed a violation of federal law. But, in the absence of a specific reason to think that he might lose the election due to the Illinois procedure, did Bost have standing – that is, was he a proper plaintiff in federal court? A five-justice majority said yes, holding that candidates for office have automatic standing to challenge ballot-counting procedures, regardless of whether they will affect the election outcome. Four justices in separate opinions would have rejected that holding.

Bost well illustrates a much broader trend toward “standing realignment,” that is, the rise of standing hawkishness on the left and dovishness on the right.

Bost also has more specific implications for the ever-changing, frequently amorphous law of standing. I discuss five here, respectively relating to: (i) the disappearance of a history-and-tradition test for standing; (ii) the expansion of “fair-competition” standing; (iii) the narrowing of the court’s decision in the 2013 case of Clapper v. Amnesty International; (iv) the continuing subterranean life of what I call “relative standing”; and (v) the emergence of systemic pragmatism – that is, consideration of how standing doctrine can help make the overall legal system work better.

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First, Bost ignores, or at most pays lip service to, the history-and-tradition approach to standing set out a few years ago in Transunion v. Ramirez (described below). There, the court required plaintiffs to establish standing by pointing to a common law analogue for the injury they claimed. In several areas of constitutional law, especially the Second Amendment, the court has similarly emphasized the importance of considering historical practices and their modern analogues. As Justice Amy Coney Barrett pointed out, however, Bost did not undertake that sort of analysis.

In a single sentence, Bost did posit that a candidate’s “reputation” is a traditional common law injury, citing Transunion. In that earlier ruling, the court had insisted that reputation-harming information – such as assertions that someone is a known terrorist – had to be published or disclosed to third parties to generate an injury in fact capable of supporting a suit for damages. In Bost, however, the court did not require a showing of anything analogous to publication or disclosure of traditionally defamatory information.

The chief justice’s opinion for the court calls to mind his majority opinion in United States v. Rahimi. There, the chief justice softened the history-and-tradition test for the Second Amendment that had recently been set out in New York State Rifle and Pistol Association v. Bruen. Bost appears to have done something similar for the approach to standing set out in Transunion.

In short, the court’s throwaway, unpersuasive line about traditional injury only confirms that other rationales did the real work.  

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Second, Bost may indirectly loosen up the law of competition-based standing in general, including for affirmative action cases.

Though Bost did not rely on them, affirmative action cases on standing, such as Regents of the University of California v. Bakke, have followed a competition-based logic. In such cases, someone whose racial group is disfavored under an affirmative action program is thought to have lost out on the chance “to compete” on race-neutral terms. Thus, a plaintiff is not required to show that he or she would likely have obtained the benefit (typically admission or employment) absent the race-conscious program. It is enough that the person (a) was disadvantaged and (b) lost out on the benefit.

That logic tracks other cases involving “procedural rights.” Oftentimes, people denied a concrete government benefit through an unlawful process cannot show that they would have gotten the benefit if the law had been followed. A contract, for instance, might be assigned based on an unlawful selection process. Would the plaintiff have won out in a lawful process? Who knows. Yet standing exists, because the plaintiff’s right to a lawful procedure is thought to loosen the causation requirement.

Bost appears to loosen the requirement quite a bit more. Remarkably, the court did not feel the need to establish that any concrete injury was being protected by a procedural right to a lawful process. The court instead relied on a fair opportunity for Bost to compete in a lawful election, period. “Each runner in a 100-meter dash,” the court reasoned, “would suffer if the race were unexpectedly extended to 105 meters,” because “all would be deprived of the chance to compete for the prize that the rules define.” Likewise, a candidate might be advantaged by a rule in favor of counting late-arriving ballots. He might even be a shoo-in to win. No matter, reasoned the court. Even if counting extra ballots caused the candidate’s victory, he would still have lost a chance to compete fairly in a lawful process.

Now apply that logic to affirmative action. Let’s say that someone is advantaged by an affirmative action program. And further imagine that the person is admitted to the program to which they are applying. And imagine even further that the person is admitted because of the affirmative action program that advantaged them. One might have thought that such a claimant had suffered no injury. Yet Bost’s logic suggests that the imagined individual could sue (say, for ideological reasons) to have his application evaluated on race-neutral grounds. Only then would the individual have competed in a fair process. The result: standing to seek not just race-neutral consideration, but a race-neutral rejection.

Bost’s purely fairness-based logic thus supports, and may portend, other expansions of standing. No longer would a procedural right have to secure a concrete interest. An interest in “fair” process alone may generate standing.

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Third, Barrett’s opinion (joined by Justice Elena Kagan) strengthens the argument that the case of Clapper v. Amnesty International is to be read narrowly or even overlooked.

Over a decade ago, the court ruled in Clapper that attorneys representing alleged terrorists lacked standing to challenge a surveillance program that, they argued, would unconstitutionally monitor their communications with clients. More recently, however, Justice Samuel Alito (in a dissent from denial of certiorari joined by Justice Thomas) complained that lower courts were overreading Clapper’s restriction onstanding. That view was noteworthy in part because Alito wrote Clapper itself and Thomas joined his majority opinion. But how many other justices had a similar view?

Bost affords a partial answer. Barrett’s concurrence in the judgment argued that candidates have standing to challenge vote-counting procedures when they hire poll watchers to guard against miscounting because they expend resources in doing so. Clapper seemingly established that such costs are self-inflicted and non-cognizable unless they respond to a substantial risk of some harm. In Bost, however, there was no showing of such a substantial risk.

Barrett addressed this concern in part as follows: “it is standard practice for campaigns to send poll watchers to monitor ballot counting to ensure that any discrepancies are resolved appropriately. See Brief for League of Women Voters et al. as Amici Curiae 20 (calling it ‘political malpractice’ for candidates not to monitor ballot counting in their races).” This appeal to “standard practice” – as well as its counterpart, “political malpractice” – makes sense. The existence of a costly practice is powerful evidence that the practice guards against a substantial risk.

Buch such a practice, and a reciprocal sense of malpractice, was also present in Clapper. There, a responsible attorney would be prepared to incur costs to avoid the risk that privileged attorney-client conversations might be unlawfully surveilled by the government. Justice Anthony Kennedy, who ultimately provided a necessary vote in Clapper, said precisely that at oral argument: “I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute.”

So Barrett’s opinion suggests Clapper’s deterioration as precedent, and raises the possibility that practice/malpractice may play a greater future role in standing cases.

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Fourth, Bost featured attention to what I call relative standing, even as the court denied it was engaged in that mode of argument.

Yours truly has argued that standing doctrine both is and should be attentive to whether the plaintiff at hand is the best available plaintiff. If there is no better plaintiff to vindicate a legal principle through the pursuit of a particular judicial remedy, that is often a reason for the plaintiff at hand to have standing. And if there is a better plaintiff available, that is often a reason for the plaintiff at hand to be denied standing.

Clapper illustrated this dynamic. After explaining that it would deny standing to the plaintiffs, the court was at pains to identify alternative claimants, including ones that supposedly had a “stronger evidentiary basis” than the actual plaintiffs. I have argued that Clapper’s relativistic analysis was faulty and unpersuasive, but I do agree that that kind of analysis was the right way for the court to proceed.

However, even cases that engage in relativistic reasoning generally deny that such reasoning is legally relevant. Courts instead insist that they simply demand “injury in fact” (that is, the particular plaintiff was adequately injured) even as relativistic issues appear during oral arguments or within published opinions.

Bost continued that pattern in grand style. Early in its analysis, the court noted: “An unfair and inaccurate election plainly affects those who compete for the support of the people in a different way than it affects the people who lend their support.” Quoting a dissenting opinion by Judge Andrew Oldham on the U.S. Court of Appeals for the 5th Circuit, the court further noted that a candidate has a “more particularized” interest than a voter. While it is not entirely clear what the court had in mind here, candidates do seem to have at least as much at stake as an arbitrarily selected voter. Even a miniscule risk of losing an election is still a risk of losing out on a job. And candidates are generally voters, too.

Recognizing the unavoidably relativistic nature of the court’s claims, Justice Ketanji Brown Jackson contested them. In her view, the court’s “assessment gets the significance of the relative interests exactly backward.” Jackson argued that candidates have nothing more at stake than voters. And voters’ interest in lawful elections, Jackson concluded, are generalized and so non-cognizable.

Yet the majority (true to its past practice) denied that it was interested in that seemingly pivotal question. “We have no occasion to theorize,” the court asserted, “about the ‘significance of the[se] relative interests.’” The reader is left to wonder how that disavowal could be squared with the court’s adjacent comment about candidates having a “more particularized” interest.

In short, the court’s bottom line is eminently defensible as a matter of relative standing. And, despite the majority’s claim otherwise, some attention to “relative interests” seemed to underlie its decision.

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Finally, Bost is remarkable for its extensive and unusual deployment of what might be called systemic pragmatism.

Both before and after Bost, election law scholar Rick Pildes (including in a piece with Samuel Ozer-Staton) argued in favor of the broad rule of standing that the court adopted – that is, a rule allowing for a candidate to challenge ballot-counting procedures. And that general view has been echoed by other scholars, including Daniel Tokaji. These figures have largely focused on one or more pragmatic points that also appeared in the court’s opinion.

In brief, here are those pragmatic points. First, election litigation should whenever possible come before an election rather than after one – and, generally, the earlier the better. Second, instead of putting themselves in a position of deciding elections once ballots are in, courts should rule behind a “veil of ignorance” (that is, before the results are known). Finally, courts must avoid the catch-22 threatened by the “Purcell principle,” which bars courts from altering election procedures too close to an election. If this principle blocks judicial relief late in time, in other words, then standing doctrine must not block earlier judicial review.

Interestingly, the Bost court advanced these pragmatic, systemic arguments in a section styled as a response to the separate opinions. Yet these points – although in a supposedly defensive section – provide reasons that could independently support the court’s result. This aspect of Bost (like its attention to relative standing) reveals the court’s interest in designing standing rulings that foster a practicable legal system.

Perhaps the most intriguing possibility raised by Bost is that systemic pragmatism might come to play a more central and unembarrassed role in standing doctrine.