It’s the campaign scenario that keeps partisan operatives and lawyers awake at night: Donald Trump and Hillary Clinton end Election Day deadlocked with key states in a recount, and a short-handed Supreme Court can’t resolve the matter because the eight justices split down the middle.
In such a case, a lower-court ruling would probably be left to stand, and the decision would carry even less authority than Bush v. Gore, the high court’s widely criticized 5-4 ruling resolving the 2000 presidential election.
With Trump and Clinton concluding one of the most toxic presidential campaigns in modern history, amid charges of foreign influence and “rigged” procedures, the lack of a fully functioning Supreme Court to act as a legal backstop is worrisome to some operatives on both sides.
“There’s a hell of a scary thought,” said Jim Manley, a longtime Democratic staffer. “I’m not sure the country can handle that right now.”
“This would not be a good moment for the Supreme Court to have to deal with a partisan dispute,” added Trevor Potter, a veteran Republican attorney and former chairman at the Federal Election Commission.
To date, the Supreme Court has managed to withstand the political maelstrom of the 2016 election by staying out of it. But it’s been called upon to resolve highly charged partisan disputes in just the last few days.
On Monday, a unanimous court dismissed a last-minute Democratic plea to reinstate an injunction that would have blocked Trump’s campaign and its allies from taking actions that would allegedly intimidate voters in Ohio. That ruling came right on the heels of a Saturday order reinstating an Arizona law banning the collection of independent ballots.
Both of those high court moves favored Republicans, and court watchers noted the rulings — both issued without recorded dissent — reflected the eight sitting justices’ attempts to keep themselves out of direct fire in an already venomous presidential campaign.
But while a lay-low approach can work in cases involving the kinds of voting questions that matter before Election Day, it may not work so easily if there are any legal disputes stemming from Tuesday, especially on issues involving recounts or other voting disputes where the overall results are close and battleground states like Florida or North Carolina are still up for grabs.
“It’ll be the first thing people think if there’s a contested election,” Potter said.
And there’s reason to see the courts coming into play. Trump’s real estate and business career are coursed with litigation and the Republican has run his presidential campaign alleging everything from voter fraud to widespread “rigging” by the political establishment and the media.
“It does seem if Trump loses there’s going to be challenges to the voting results. When you spend all your time saying the results are rigged you’ve got to expect there are lawsuits challenging results,” said Adam Winkler, a UCLA constitutional law professor.
It’s also apparent to the campaigns that a short-handed Supreme Court would be a key consideration in any post-election legal strategies. After all, any decisions where the high court splits 4-4 would mean that the underlying ruling stands. That means the federal appeals courts or state supreme courts could wind up being the final arbiters in deciding who wins the White House.
“It absolutely raises the stakes in the federal circuit courts and the state court systems when you don’t have a fully staffed Supreme Court,” said Alicia Bannon of the liberal Brennan Center at New York University.
This is also the scenario that would “increase the possibility of strategic litigation,” Potter said.
“What litigants would do is bring their claims according to which court they think is likely to be more favorable to them,” added Dan Tokaji, a professor of election law at Ohio State University. “If you’re a Democratic lawyer and you’re in a jurisdiction with an unfriendly state supreme court you could try to head towards the circuit court by framing a claim under federal law. And vice versa for Republican lawyers.”
So how would these kinds of cases break down? Democrats would have an advantage in many of the federal appeals courts, where their party’s appointees hold majorities in eight of the 12 geographic circuits. Democratic appointees seem especially likely to carry the day in federal court decisions in battleground states like North Carolina, part of the 4th Circuit, and Florida, part of the 11th.
However, federal courts might not be friendly to Democrats in an election-related fight emerging in Ohio or Michigan. Those states are part of the 6th Circuit, where Republican nominees outnumber Democrats, 10-5.
“Imagine a disputed outcome in Ohio or Michigan, followed by a 6th Circuit decision that determined the winner with the Supreme Court paralyzed,” said Stephen Gillers, an NYU law professor.
By and large, Republicans are in better shape in state supreme courts, where conservative activists have been making efforts in recent years to get friendly judges appointed and elected. Several of the key swing states have high courts that lean to the GOP.
The Florida Supreme Court, for example, has four Republican appointees, two Democratic appointees and one justice who got nods from governors of both parties. North Carolina’s Supreme Court, which is in the midst of a hotly contest election itself, has four GOP justices to three Democrats. Ohio’s high court has six GOP justices and just one Democrat.
”Republicans and conservative groups have really prioritized state supreme courts,” said Bannon. Most of the effort seems to have been directed at obtaining rulings that rein in personal-injury lawsuits and give GOP-led legislatures wide latitude in setting the boundaries of congressional districts, she said.
“The specific potential of the courts to decide a presidential election—I don’t think that’s been the main focus of any of these groups,” Bannon added.
Experts say judges of both parties tend to vote along party lines in election-related cases, but Republicans are more likely to favor the GOP than Democrats are to favor their fellow partisans. The association gets stronger when they’re elected judges who’ve gotten large sums campaign donations.
“Bush v. Gore is a very famous election case but these happen all the time in state supreme courts, typically for less important offices,” said Emory law professor Joanna Shepherd. “If a Republican is slightly more likely to favor Republican litigants in a contested election situation . . . money seems to make it worse.”
Critics point out the current eight-member U.S. Supreme Court has had an easier time with less thorny topics since the February death of Justice Antonin Scalia, creating a vacancy prolonged by the subsequent Senate GOP blockade against President Barack Obama’s replacement nominee, Merrick Garland. But there’s little doubt the court has struggled since Scalia’s death when it’s handled the tough stuff like immigration and birth control.
The eight remaining justices have tried to varying degrees to skirt the 4-4 issue. “We will deal with it,” Justice Samuel Alito said shortly after Scalia’s death in February. But Justice Ruth Bader Ginsburg earlier this summer said eight justices “was not good enough” for handling cases involving politically charged issues like immigration.
Justice Stephen Breyer, asked directly last month during an appearance on MSNBC about how the court would handle any election-related cases, first tried to explain just how infrequent a split ruling comes down. “Half of our cases are unanimous,” Breyer said.
Pressed on whether he was concerned about a split court being forced to weigh in on the 2016 election, Breyer replied, “When you say ‘not concerned,’ I’m trying to give you a picture. There were about four or five cases, depending on how you count, maybe four or five out of 70 to 75 cases during the year where the court did split 4-4.”
No doubt, the very notion that the Supreme Court could be forced into the election would be mired in politics. Whoever is the next president will get to decide whether Garland’s nomination should be resubmitted. And even the sitting justices have gotten in hot water when talking about the presidential campaign.
Ginsberg earlier this year slammed Trump for not releasing his tax returns, calling the GOP nominee a “faker” with “no consistency about him.” While she later apologized, Trump has taken issue with the justice’s remarks. On Twitter he wrote that the liberal judge had “embarrassed all by making very dump political statements about me. Her mind is shot — resign!”
Several longtime Supreme Court watchers shrugged off concern that the justices would even have to deal with election questions. Ilya Somin, a George Mason law professor, said there’s a “low probability” the Supreme Court would be a final arbiter in the 2016 campaign.
“But if it does happen,” he warned, “it surely won’t be good.”
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