Sonia Sotomayor Questions Mail-In Voting Case Standing

Standing and Electoral Disadvantage

• 🎯 Justice Sotomayor questioned the attorney regarding the definition of standing in election cases, referencing past Supreme Court rulings like U.S. v. Keen, Clapper, and Murthy.
• ❓ She pressed the attorney to articulate the specific electoral disadvantage faced by candidates due to the mail-in voting rules at issue.
• ⚖️ The attorney argued that the rules governing ballot validity are unique because their primary purpose is to determine the election winner, thus directly impacting candidates.

Arguments on Harm and Causation

• 💡 Sotomayor pushed back on the premise that a potential risk automatically constitutes a substantial risk, emphasizing the need for the plaintiff to be a direct object of the harm.
• 🔄 The attorney's argument seemed to be perceived as circular, suggesting a substantial risk exists because it might happen, which Sotomayor noted is not the standard for plausibility.
• 🗳️ The discussion touched upon whether indirect objects or those merely part of a scheme could have standing, contrasting it with cases where parties were not part of the regulatory scheme.

Ballot Counting Rules and Candidate Impact

• 📊 The attorney stated that their rule doesn't solely turn on electoral disadvantage because vote counting rules are ex ante, making it impossible to know their ultimate impact.
• ⚠️ However, Sotomayor countered that a long history of data since 2005 could potentially demonstrate where these rules have broken and thus establish standing.
• ⚡ The attorney also suggested that if candidates don't expend resources to mitigate risks, they are essentially giving up potential electoral advantage, which could be considered a concrete harm.