In October, the Supreme Court heard oral argument in Bost v. Illinois State Board of Elections. This case considered the narrow question of whether a congressional candidate had standing to challenge the state's policy that counts ballots received after election day. At the time, I observed that the Court was suffering from PTSD after the 2020 election. The Justices were seriously concerned about litigation after election day that could flip the result. The Court's decision in January 2026 reflected these concerns. The Justices allowed the pre-election challenge to go forward in large part to avoid chaotic eleventh-hour litigation that could change the outcome of a race. The three opinions in that case were not very persuasive but it seemed clear to me that the Justices were concerned about the practical consequences of a contrary ruling.
Paul Clement argued Bost. And Clement would come back to the podium today for round two in Watson v. RNC. This case focused on the merits questions: can Mississippi count ballots that arrive after election day?
It was an unusual oral argument. A deep red state was defending a permissive voting law that was opposed by the RNC. Moreover, the state was represented by Solicitor General Scott Stewart, a former Justice Thomas clerk, who argued Dobbs. I don't think Stewart ever expected to be on the receiving end of sharp questions from Justices Thomas and Alito, while Justice Sotomayor tried to bail him out.
