Standing Case in the Supreme Court

One of the requirements to file a civil suit in federal court is “standing.” That is, the plaintiff must have a sufficient interest in the subject matter. Just being against a law on principle is not enough. Determining what interests are sufficient has been a long-standing problem, and the rules are sometimes loosened when they operate, in practice, to completely immunize questionably constitutional laws from any challenge. The case of Bost v. Illinois Board of Elections, which was argued in the U.S. Supreme Court on Wednesday, is a standing case.

CJLF has been involved in standing battles in our work on behalf of victims of crime. When we challenge the early release of a murderer or rapist on behalf of a victim or victim’s family, we are regularly met with an objection that the victim has no standing. California Attorney General Rob Bonta has fought us tooth and claw on this, although he is much milder in his objections to third parties seeking to help murderers. (See pp. 14-15 of this brief.)

The U.S. Supreme Court’s doctrine in this area is based on its interpretation of Article III’s definition of the jurisdiction of federal courts, and as such it is not binding on state courts interpreting their own state constitutions. Even so, these cases are often persuasive authority in state courts and are worth keeping an eye on for state court litigation as well.

The high court has generally been quite strict on standing. It did recognize a narrow exception for cases raising Establishment Clause challenges in Flast v. Cohen (1968), but generally it has not allowed standing by someone claiming to represent the public interest or claiming an illegal use of taxpayer money. In environmental cases, the court has accepted some pretty thin claims of harm, such as a stated desire to visit an area to observe a particular species at some point.

So who has standing to challenge an election law in advance of an election? After an election a candidate who lost the election but claims he would have won but for the challenged law would have standing, but there are considerable practical difficulties in unraveling what would have happened from what did happen. The time pressure to get such matters resolved in the brief interval between an election and the beginning of the term is also a huge problem, as we saw all too clearly in Bush v. Gore in 2000.

Many observers of Wednesday’s argument believe the court appears poised to loosen the standing strings, at least in this context. Evan Lee has this post at SCOTUSblog.