Bost v. Illinois State Bd. Of Elections - Annotated Opinion

 An unlawful election rule can injure a candidate in several ways. It might cause him to lose the election. It might require him to expend additional resources. Or it might decrease his vote share and damage his reputation. Respondents concede that each of these harms can be legally cognizable. But they contend that Congressman Bost failed to adequately plead any such harm here. We need not resolve whether respondents are right, because winning, and doing so as inexpensively and decisively as possible, are not a candidate’s only interests in an election.⁴

 To start, candidates also have an interest in a fair process. Candidates are not common competitors in the economic marketplace. They seek to represent the people. And their interest in that prize cannot be severed from their interest in the electoral process—a process “of the most fundamental significance under our constitutional structure.” Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 184 (1979). Win or lose, candidates suffer when the process departs from the law. Thus, the long-shot and shoo-in alike would suffer harm if a State chose to conduct its election by, say, flipping a coin. The result of such an election would not reflect the will of the people, and the candidates would lose the opportunity to compete for the people’s support. So too, similar harms would result from less dramatic departures—for example, if a State decided to discard a random 10% of cast votes. Whether these decisions help, hurt, or have no effect on a candidate’s electoral prospects, they deprive the candidate of a fair process and an accurate result.

 Such harm to candidates is in no sense “common to all members of the public.” Lance v. Coffman, 549 U. S. 437, 440 (2007) (per curiam) (internal quotation marks omitted). Voters, to be sure, also have a “general interest” in an accurate vote tally. Ibid. (internal quotation marks omitted). But a candidate’s interest differs in kind. 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. We have no occasion to theorize about the “significance of the[se] relative interests,” contra, post, at 3 (Jackson, J., dissenting), or the “sincer[ity]” with which they are held, Carney v. Adams, 592 U. S. 53, 59 (2020) (internal quotation marks omitted). What matters is that the harm candidates suffer is distinct from that suffered by the “people generally.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923). Those who spend untold time and resources seeking to claim the right to voice the will of the people have “an undeniably different—and more particularized—interest” in knowing what that will is. Hotze v. Hudspeth, 16 F. 4th 1121, 1126 (CA5 2021) (Oldham, J., dissenting).

 Rules that undermine the “integrity of the electoral process” also undermine the winner’s political legitimacy. Crawford v. Marion County Election Bd., 553 U. S. 181, 197 (2008) (opinion of Stevens, J.). The counting of unlawful votes—or discarding of lawful ones—erodes public confidence that the election results reflect the people’s will. And when public confidence in the election results falters, public confidence in the elected representative follows. To the representative, that loss of legitimacy—or its diminution—is a concrete harm. “[R]eputational harms,” as a general matter, are classic Article III injuries. TransUnion LLC v. Ramirez, 594 U. S. 413, 425 (2021) (citing Meese v. Keene, 481 U. S. 465, 473 (1987)). But they are particularly concrete for those whose very jobs depend on the support of the people.

 Candidates, in short, are not “mere bystanders” in their own elections. Diamond Alternative Energy, LLC v. EPA, 606 U. S. 100, 110 (2025). They have an obvious personal stake in how the result is determined and regarded. Departures from the preordained rules cause them particularized and concrete harm.⁵ The same is true of competitors in other contests. Each runner in a 100-meter dash, for example, would suffer if the race were unexpectedly extended to 105 meters. See Tr. of Oral Arg. 90. Whether a particular runner expects to finish strong or fall off the pace in the final five meters, all would be deprived of the chance to compete for the prize that the rules define. The fastest to run 105 meters has not won the 100-meter dash. And in much the same way, an unlawful extension of vote counting deprives candidates of the opportunity to compete for election under the Constitution and laws of the United States.

 Respondents and the dissent dismiss these harms, which plainly affect candidates in a “personal and individual way,” as generalized grievances. Spokeo, Inc. v. Robins, 578 U. S. 330, 339 (2016) (internal quotation marks omitted). And they suggest that in order to have standing, plaintiff-candidates must show some substantial risk that a rule will cause them to lose the election, prevent them from achieving a legally significant vote threshold, or damage their reputation or finances. Brief for Respondents 25–26; post, at 9. That approach finds no support in Article III’s case or controversy requirement or our case law interpreting that requirement. And it is as practically untenable as it is undemocratic.

 Premising standing on a candidate’s risk of election loss or failure to achieve a certain vote threshold could channel many election disputes to shortly before election day—or worse, after. Only then will many candidates be able to predict with any certainty that a rule will be outcome determinative. And only then will they be able to produce the “manner and degree of evidence required,” particularly at later “stages of the litigation,” to establish standing. Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992).

 Yet “[t]his Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican National Committee v. Democratic National Committee, 589 U. S. 423, 424 (2020) (per curiam). Such late-breaking, court-ordered rule changes can “result in voter confusion and consequent incentive to remain away from the polls,” and thus undermine the “[c]onfidence in the integrity of our electoral processes . . . essential to the functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam); see also Republican Party of Pennsylvania v. Degraffenreid, 592 U. S. ___, ___–___ (2021) (Thomas, J., dissenting from denial of certiorari) (slip op., at 4–5). The democratic consequences can be even more dire if courts intervene only after votes have been counted. “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Bush v. Gore, 531 U. S. 1046, 1047 (2000) (Scalia, J., concurring in grant of stay).

 Even if some candidates could muster evidence well before election day that a rule will likely be outcome determinative, respondents’ and the dissent’s approach would convert Article III judges into political prognosticators and “invite[ ] findings on matters as to which neither judges nor anyone else can have any confidence.” Rucho v. Common Cause, 588 U. S. 684, 711 (2019) (internal quotation marks omitted). As a number of prominent historical figures can attest, not least among them Charles Evans Hughes and Thomas Dewey, “accurately predicting electoral outcomes is not” a “simple” endeavor. Id., at 712. And if the prognosticators themselves lack the “political clairvoyance” to predict the winner after all votes have been cast, then surely judges are poorly positioned to assess whether a candidate’s risk of loss, months earlier, is substantial. Diamond Alternative Energy, 606 U. S., at 123; see also Vieth v. Jubelirer, 541 U. S. 267, 287, n. 8 (2004) (plurality opinion). The limits of federal courts’ jurisdiction do not rest upon such “unstable ground outside judicial expertise.” Rucho, 588 U. S., at 713.

 Nor would requiring candidates to plead a substantial risk of harm to their vote share leave courts on any surer footing. Such an approach would force judges to assess whether an election rule is likely to disadvantage a particular candidate. And at least as respondents suggest, judges must then also ensure that any disadvantage is linked to reputational or financial harm.⁶

 Judges are no better qualified to make such determinations than they are to assess a candidate’s likelihood of winning or losing. Even if they could do so, this approach would still channel many disputes into postelection litigation. To bring a preelection suit, a candidate would have to plead and prove that voters who take advantage of the challenged rule will favor his rivals. Doing so while campaigning for those same voters’ support is not just awkward, but politically dangerous. Particularly for new election rules, it may require divulging information about vulnerabilities that rival candidates could exploit. Faced with that prospect, many candidates are sure to wait until after votes are counted to sue.

 Adding monetary harm to the equation, as the concurrence proposes, would change none of this. Post, at 2–3 (Barrett, J., concurring in judgment). Plaintiffs cannot “manufacture standing by voluntarily” incurring costs. Federal Election Comm’n v. Ted Cruz for Senate, 596 U. S. 289, 297 (2022). They must incur those costs to “mitigate or avoid” a “ ‘substantial risk’ ” of some independent harm. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013). Acknowledging as much, the concurrence ultimately speculates that it is “reasonably probable” Congressman Bost’s election will be at risk because of discrepancies in late-arriving ballots. Post, at 3. Such conjecture—beyond finding little support in the pleadings—carries all the concerns we have explained. And the concurrence’s approach introduces a new one: Apparently, a candidate who pays poll watchers a penny would have standing, while one who relies on volunteers would not.

 Nothing about Article III requires this result. Candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the cost of their campaigns. Their interest extends to the integrity of the election—and the 

democratic process by which they earn or lose the support of the people they seek to represent.⁷

*  *  *

 “Courts sometimes make standing law more complicated than it needs to be.” Thole v. U. S. Bank N. A., 590 U. S. 538, 547 (2020). We decline respondents’ invitation to do so here. As a candidate for office, Congressman Bost has standing to challenge the rules that govern the counting of votes in his election.

 The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

 We need not deviate from established standing principles to resolve this case in Congressman Bost’s favor. I respectfully concur only in the judgment.

 The majority’s primary failing is its refusal to recognize that the alleged injury it identifies—the suffering that results from an unfair electoral process—is not particular to candidate-plaintiffs. The importance of the particularity requirement cannot be overstated, for it is this requirement that “prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders.” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 687 (1973). Such a result is incompatible with our constitutional design, which recognizes that “ ‘abstract questions of wide public significance’ ” are “most appropriately addressed in the representative branches.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 475 (1982) (quoting Warth v. Seldin, 422 U. S. 490, 500 (1975)). In other words, the particularity requirement ensures that the Judiciary stays in its proper lane, leaving to the people’s representatives the prerogative to decide questions of broad importance in the absence of a litigant with a “direct stake in the outcome.” Sierra Club v. Morton, 405 U. S. 727, 740 (1972). As such, litigants without a direct stake—i.e., those who assert no more than “generalized grievances about the conduct of government”—cannot satisfy the “case or controversy aspect of standing.” Valley Forge, 454 U. S., at 479 (internal quotation marks omitted).

 Today’s decision all but ignores the particularity requirement and the democracy-preserving function that it serves. This case, the Court says, involves “[a]n unlawful election rule,” which necessarily injures candidates’ “interest in a fair process.” Ante, at 4. But, even assuming that Illinois’s rule is unlawful (as we must for standing purposes), the Court makes no real attempt to explain how that injury is particular to candidates; to the contrary, it acknowledges that voters, too, have a stake in a fair electoral process. See ante, at 5. Yet the Court insists that a candidate’s interest is “undeniably different” from that of a voter’s, because it is the candidate—and not the voter—who “compete[s]” in an election. Ibid.

 That assessment gets the significance of the relative interests exactly backward. A public office is a public trust, and an election for that office is the ultimate expression of the will of the people, not a mere competition to be won or lost. In the Court’s telling, though, elections are a glorified  national pastime—the competitors’ success is the main objective, and voters are mere bystanders who simply “lend their support.” Ibid. This depiction drastically devalues the role elections play in a democratic society.¹

 The Court similarly misrepresents the harm that occurs when unlawful election rules “erod[e] public confidence [in] the election results.” Ibid. To be sure, a tainted election can hurt a candidate if it undermines the public’s perception of that officeholder’s legitimacy and harms his reputation in the process (assuming he makes that allegation).² But voters suffer too—and arguably even more so—when their fellow citizens lose confidence in the results of an election. Indeed, the same loss of faith the majority counts as injurious to candidates could be a fatal blow to the public’s interest in democratic governance.³

 Batting away these foundational truths, the Court finds “no occasion to theorize” about the relative significance of voters’ and candidates’ shared interest in free and fair elections. Ibid. But it is the Court’s own analysis—i.e., its  purported distinction between the interests of candidates and voters in fair election outcomes—that raises the comparative question, not mine.

 In any event, I agree that we need not “theorize” about the significance of these interests, for one thing is indisputably clear: Our democracy was founded on the “self-evident” truth that a government is legitimate only insofar as it derives its “just powers from the consent of the governed.” Declaration of Independence ¶2. Candidates come and go, but the voters’ collective interest in the “right to elect legislators in a free and unimpaired fashion” is enduring and indispensable. Reynolds v. Sims, 377 U. S. 533, 562 (1964). Against this backdrop, the Court’s effort to isolate and elevate a candidate’s “distinct” interest in electoral integrity, ante, at 5, falls flat.

 For today’s standing purposes, the key realization is that, in a democracy, the (existential) interest in fair and accurate elections is common to all members of the voting public. I acknowledge that “[t]hose who spend untold time and resources seeking to claim the right to voice the will of the people,” ibid.—candidates—have a particularized interest in getting the job. That is precisely why candidates do have Article III standing if an unlawful election rule creates a substantial risk of harm to that interest (the risk of an election loss). But when what is at stake is the overall fairness of the electoral process, it is the people’s shared interest in democracy itself (and not just the candidate’s job prospects) that hangs in the balance.

 The Court’s standing analysis elides all this by employing the commonsense intuition that, “[w]in or lose, candidates suffer when the process departs from the law.” Ante, at 4. But how is that a particularized injury? Anyone and everyone who is governed by law is similarly harmed by any departure from the law’s requirements. Moreover, this Court  has repeatedly instructed that litigants “may not sue based only on an ‘asserted right to have the Government act in accordance with law.’ ” FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 381 (2024) (quoting Allen v. Wright, 468 U. S. 737, 754 (1984)); see also Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (rejecting theory that taxpayers have standing to challenge an allegedly unlawful government action requiring the use of public funds because “[t]he party who invokes the [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury. . . , and not merely that he suffers in some indefinite way in common with people generally”).

 Here, the generalized nature of the “fair process” harm is indisputable: If Illinois’s vote-count rule is unlawful, all participants in the electoral process—not only candidates for office but also every voter who has cast a ballot in the election—would be deprived “of a fair process and an accurate result.” Ante, at 4. But, as this Court has time and again explained, such an assertion of injury “amount[s] to little more than [an] attemp[t ] ‘to employ a federal court as a forum in which to air . . . generalized grievances about the conduct of government.” Valley Forge, 454 U. S., at 483 (omission in original) (quoting Flast v. Cohen, 392 U. S. 83, 106 (1968)).

 Indeed, our standing precedents make crystal clear that, absent a showing of particularized harm, these sorts of fair-process grievances must be resolved through the political branches. For it is in those branches “where democratic debate can occur and a wide variety of interests and views can be weighed.” Alliance for Hippocratic Medicine, 602 U. S., at 380. By contrast, the exercise of judicial power, “which can so profoundly affect the lives, liberty, and property of those to whom it extends,” is a “tool of last resort,” to be invoked only “when the question is raised by a party whose  interests entitle him to raise it.” Valley Forge, 454 U. S., at 473–474 (internal quotation marks omitted).

 Finding no support for a nonparticularized “fair process” harm in either our precedents or the practices of the lower courts, the Court pivots to an analogy. It suggests that, as a candidate running for office who has been told that votes will continue to be counted after election day, Bost is no different from a competitor in a 100-meter dash whose race is “unexpectedly extended to 105 meters.” Ante, at 6. According to the majority, each runner in the newly announced 105-meter race would obviously suffer, regardless of whether he “expects to finish strong.” Ibid. But whether any given runner is harmed by this rule change depends on a number of factors particular to each competitor, none of which the majority deigns to identify. And, indeed, it is far from obvious that a runner with a track record like Bost’s—who expects to win both races based on sound statistical analyses of his current and past performance—would have the injury that begets Article III standing to involve the Judiciary in this rule-change dispute.

 Despite the imprecision of its analysis, the Court is clear about one thing today: Pinpointing the actual harm to candidates for elected office is no longer necessary for standing purposes. Its remarkable holding jettisons the injury-in-fact requirement entirely. Forget injury; political candidates need only have “a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the cost of their campaigns.” Ante, at 9 (emphasis added). As Justice Barrett explains, see ante, at 4 (opinion concurring in judgment), this harm-free Article III standing rule finds no support in our precedents.⁴

 Perhaps sensing the weakness of its novel, harm-free standing analysis, the Court resorts to policy arguments to bolster it. It worries that requiring candidates to establish that they might lose the election will “channel” lawsuits “to shortly before election day—or worse, after.” Ante, at 7. “Only then,” the Court says, will a candidate really know whether an election regulation has impacted his race. Ibid. And, worse still, a candidate trying to make such a showing could find himself in the “awkward” position of having to “plead and prove that voters who take advantage of the challenged rule will favor his rivals.” Ante, at 8–9.

 The relevance of these practical concerns is unclear. We have traditionally viewed Article III standing as an “irreducible” constitutional minimum, “not merely a troublesome hurdle to be overcome.” Valley Forge, 454 U. S., at 472, 476. As such, Article III’s “essential and unchanging” constitutional mandates do not ordinarily yield to our policy judgment about when it would be most convenient for courts to hear particular kinds of suits. Alliance for Hippocratic Medicine, 602 U. S., at 380 (internal quotation marks omitted).

  In any event, under our usual standing rules, a candidate (and our democracy) need not be put in the awkward position of waiting until the eve of an election or predicting an electoral loss with 100% accuracy. Our cases recognize that a litigant who bases standing on “[a]n allegation of future injury” need only assert a “substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014) (emphasis added; internal quotation marks omitted). The substantial-risk standard is not especially exacting; it demands more than mere conjecture, but it does not require plaintiffs to prove that the alleged future harm is “literally certain” to occur. Clapper, 568 U. S., at 414, n. 5.

 Accordingly, at the motion-to-dismiss stage, a candidate need only plausibly allege that the challenged regulation creates a substantial risk of an election loss—he need not predict with certainty that the rule will cause him to lose. See, e.g., Texas Democratic Party v. Benkiser, 459 F. 3d 582, 587 (CA5 2006) (concluding that a candidate who alleged that governmental action “threaten[ed] his election prospects” had established standing). Alternatively, a candidate whose win is more secure could allege a substantial risk of some other concrete and particularized harm stemming from the challenged rule’s application, such as an existing or imminent financial or reputational injury. Cf. Federal Election Comm’n v. Ted Cruz for Senate, 596 U. S. 289, 296 (2022) (recognizing a winning candidate’s $10,000 expenditure as a “pocketbook harm” that “constitute[d] an injury in fact”); Meese v. Keene, 481 U. S. 465, 473–474 (1987) (finding standing where a candidate had “alleged and demonstrated” that a challenged disclosure rule would, among other harms, “adversely affect his reputation in the community”).

 Though it may be more difficult for candidates to satisfy the “substantial risk” standard at later stages of litigation, it is nowhere near impossible. It does not require a  candidate to prove that the challenged rule guarantees his loss; it simply requires him to marshal enough evidence from which a court could conclude that the challenged rule presents a significant threat to his victory, his pocketbook, or his reputation.

 As we have recognized in other contexts, that sort of evidence may include an evaluation of the facts on the ground and statistical analyses. See, e.g., Department of Commerce v. New York, 588 U. S. 752, 767–768 (2019) (concluding that States had standing to challenge the inclusion of a citizenship question on the census, in light of statistical evidence “establish[ing] that noncitizen households have historically responded to the census at lower rates” and “that if noncitizen households [were] undercounted by as little as 2%” those States would “lose out on federal funds”). In the electoral arena, preelection polling will often provide a relevant data set. Candidates could also rely on historical data about how a particular rule has affected those who have run similar campaigns in the past. And the relative advantages or disadvantages of various electoral processes can be scrutinized by the kinds of experts who are routinely hired to make these sorts of assessments. See, e.g., Meese, 481 U. S., at 473–474 (finding standing where a candidate submitted “detailed affidavits, including one describing the results of an opinion poll and another containing the views of an experienced political analyst” to show that a challenged disclosure requirement “would substantially harm his chances for reelection” (footnote omitted)).

 The Court’s suggestion that it is beyond a judge’s competency to evaluate whether an election rule causes a substantial risk of electoral loss, ante, at 7–9, is therefore both puzzling and unfounded. A “substantial risk” of future harm has been the Article III imminent-injury standard for decades. See Clapper, 568 U. S., at 414–415, n. 5 (collecting cases applying this standard). And federal courts, including this one, have routinely applied that standard in a  variety of circumstances—essentially whenever a plaintiff maintains that state action is likely to harm him in the future. See, e.g., Murthy v. Missouri, 603 U. S. 43, 57–58 (2024) (First Amendment challenge related to social media content moderation); Department of Commerce, 588 U. S., at 766–767 (Administrative Procedure Act challenge to changes to the census); Monsanto Co. v. Geertson Seed Farms, 561 U. S. 139, 153–155 (2010) (environmental challenge to regulations of genetically modified crops).

 In short, our precedents establish that certainty of future harm is not the benchmark, as the majority suggests. Ante, at 7. Rather, all that is required is a plausible allegation (eventually followed by proof ) of a substantial risk of future injury.

 Bost fails to clear even that low bar. At most, he alleges that he “risk[s] injury if untimely and illegal ballots cause [him] to lose [his] election” or “reduc[e ]” his “margin of victory” in a way that harms his reputation. App. to Pet. for Cert. 68a–69a (emphasis added). But his complaint and supplemental declaration include no—zero—allegations to support an inference that such risk exists, or is at all substantial, in his own case; for example, he never alleges that untimely ballots are more likely to break against him and in favor of his opponent. Indeed, Bost appears to have disclaimed the need to include any such allegations before the Court of Appeals, where he argued that his “stated injury is not based on a risk of losing the election” and that “[n]either a change to his electoral fortunes nor any other effect is necessary to afford him standing.” Brief for Plaintiffs-Appellants in No. 23–2644 (CA7), p. 19. The Court today accepts that unprecedented contention, which flies in the face of both the particularity requirement and the substantial-risk standard.

 Alarmingly, today’s ruling also has far-reaching implications beyond Bost’s election, since dispensing with our usual standing requirements opens the floodgates to  exactly the type of troubling election-related litigation the Court purportedly wants to avoid. For example, under the Court’s new harm-free candidate-standing rule, an electoral candidate who loses in a landslide can apparently still file a disruptive legal action in federal court after the election is over. All he must do is assert that an election rule somehow deprived him of a fair process—even if that rule played no role in the election’s outcome or otherwise caused him harm. That possibility is especially concerning given the host of election-related regulations that States must promulgate when exercising their constitutional duty to set the “Times, Places, and Manner of holding Elections.” Art. I, §4, cl. 1. States regulate everything from a ballot’s chain of custody to its format—all of which the majority would permit candidates to challenge in court without offering any theory of how such rules harm them personally. See Brief for District of Columbia et al. as Amici Curiae 16–22 (describing the myriad state regulations at risk under Bost’s broad theory of standing).⁵

 It is impossible to square this outcome with the practical concerns the Court identifies. See, e.g., ante, at 7 (emphasizing that “ ‘federal courts should ordinarily not alter the election rules on the eve of an election’ ” (quoting Republican National Committee v. Democratic National Committee, 589 U. S. 423, 424 (2020) (per curiam))). Ironically, then, it is the Court’s new and generous candidate-standing rule that invites late-breaking judicial intervention into the  political process in a manner that is “as practically untenable as it is undemocratic.” Ante, at 7.

 I am all for simplifying our standing law. See ante, at 10. But I am against doing so selectively; either Article III standing requires an actual or imminent injury in fact that is particularized to the plaintiff, or it does not. Bost has plainly failed to allege facts that support an inference of standing under our established precedents. By carving out a bespoke rule for candidate-plaintiffs—granting them standing “to challenge the rules that govern the counting of votes,” simply and solely because they are “candidate[s]” for office, ibid.—the Court now complicates and destabilizes both our standing law and America’s electoral processes.