WASHINGTON — Legal experts call it the worst-case scenario: The day after the election arrives and the outcome turns on a dispute in one state.
As things stand now, the suggestion seems remote. But with Donald Trump refusing to promise he will accept the results of next month’s election, eyes naturally turn to the Supreme Court. The problem: there are only eight justices — four nominated by Republicans, four by Democrats.
So what happens if they split, 4-4?
“That’s the doomsday scenario,” veteran Supreme Court advocate Carter Phillips told an audience this fall, responding to a hypothetical question about a candidate who suspected the election was rigged and went to the courts. Phillips explained that if the court were to deadlock it would mean the justices were left to simply affirm a lower court opinion.
Election law expert Joshua Douglas of the University of Kentucky College of Law says that power could end up resting with the lower courts, including even a state supreme court consisting of judges who were elected in a battleground state.
There are obviously a lot of “ifs” in the scenario, including the type of challenge and where it was filed. Douglas has written an entire law review article about the different mechanisms states use to resolve election contests.
He makes the point however, that if high court were to split 4-4, they’d issue a slip of paper technically upholding a decision from another court.
“So if ‘Trump v. Clinton’ came up in say, Florida, and the Florida Supreme Court decided it, and the Supreme Court of the United States took the case and deadlocked, the result would be affirming the decision of a state supreme court.”
“At least with Bush v. Gore,” he said, “we had the highest judicial body in the country resolving the dispute and providing finality and certainty.”
The 2000 Bush v Gore case was decided 5-4 along partisan lines, resulting in Al Gore conceding the race to George W. Bush later that day.
Would Ruth Bader Ginsburg recuse herself?
Here’s another hypothetical. What if the issue were to go to a seven-member court?
Supporters of Trump might ask the liberal Justice Ruth Bader Ginsburg to recuse based on comments she made last summer to journalists, which would leave only seven justices to decide the case.
“He is a faker,” Ginsburg said in an interview with CNN’s legal analyst Joan Biskupic. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
Ginsburg later issued a statement expressing regret for her comments.
Stephen Gillers, a legal ethicist at New York University School of Law, told CNN in July that he thinks her comments would prevent her from sitting in the unlikely event of a Trump v. Clinton dispute.
“A federal law requires all federal judges, including the justices, to recuse themselves if their ‘impartiality might reasonably be questioned’,” Gillers said.
Who would make the recusal decision? It would be up to Ginsburg.
“It’s her call” Phillips said, noting there is no mechanism for anyone else to make that decision.
Trump on Wednesday night called out Ginsburg at the final presidential debate.
“Something happened recently where Justice Ginsburg made some very, very inappropriate statements toward me and toward a tremendous number of people, many, many millions of people that I represent,” Trump said. “And she was forced to apologize. And apologize she did. But these were statements that should never, ever have been made.”
He previously lambasted her in a tweet for her “very dumb political statements.” He added, in typical Trump Twitterese, “Her mind is shot—resign!”
Ginsburg didn’t read the tweet apparently.
“I’m not on Twitter, ” she told Yahoo’s Katie Couric earlier in the month. Even if she were, she said, “I think I would not have responded.”
Spotlight on Garland nomination
A 4-4 split would put the spotlight squarely on the fact that Senate Republicans have refused to hold hearings for President Barack Obama’s nominee, Judge Merrick Garland. Last term, the justices worked diligently to seek compromise in order to avoid splits.
Would politics play a role in whether a Justice took up the case or ruled in favor of Trump? Would a justice, for example, hesitate to clear the path for a Trump presidency?”
“We are not politicians,” Justice Stephen Breyer said last term during a discussion at the Newseum. He was not speaking directly about 4-4 splits, but he said after 20 years on the bench he had not seen an opinion “based on politics.”
For what it is worth, Breyer, who dissented in Bush v. Gore, often talks about a silver lining in the opinion that might resonate with critics of Trump’s comments.
“I was in dissent,” Breyer said on C-Span in 2008. “I thought it was wrong.” But he added that what he thought was remarkable was that even though about half the country probably disagreed with the decision, “everybody followed it.”
“I consider that absolutely essential,” he continued. “We’re 300 million people and we think 800 million things. If we are going to live together we better have a system of law.”