‘Nightmare’ — Supreme Court tying 4-4 on election dispute
ASSOCIATED PRESS
In this Nov. 8, 2000 file photo, Willie Smith holds four copies of the Chicago Sun-Times, each with a different headline, in Chicago, reflecting a night of suspense, drama and changes in following the presidential race between Vice President Al Gore and Texas Gov. George W. Bush.
WASHINGTON >> What happens if America wakes up on Nov. 9 to another undecided, hotly disputed presidential election? What if the outcome turns on the razor-thin margin in one or two states, one candidate seeking a recount, the other going to court?
We know what happened in 2000, when the Supreme Court in a 5-4 vote effectively settled the election in favor of George W. Bush.
As controversial as that decision was, it was made by a nine-justice court. This time around, there are only eight justices and the possibility of a tie vote. That would leave a lower federal or state court ruling in place, with no definitive judgment from the nation’s highest court.
“It would be Bush v. Gore, with a twist,” said one election law expert, law professor Richard Hasen at the University of California at Irvine.
“I call it the nightmare scenario,” said University of Kentucky law professor Joshua Douglas.
Sixteen years ago, the court divided 5 to 4 about whether to get involved at all and then voted the same way to stop Florida’s state court-ordered recount. The five more conservative justices sided with Republican nominee Bush, while the four more liberal justices would have ruled for Democrat Al Gore.
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“A no-brainer!” Justice Anthony Kennedy said in Jan Crawford’s book “Supreme Conflict,” recalling the decision to take on the case. “A state court deciding a federal constitutional issue about the presidential election? Of course you take the case.”
The odds of history repeating itself in Florida or elsewhere are long. But it’s hard to discount any possibility, however remote, in a tight campaign that already has seen Democratic lawsuits charging voter suppression and Republican claims the election will be rigged.
The reason a tie Supreme Court vote is even possible stems from another aspect of this unusual election year, the Senate Republicans’ refusal to act on President Barack Obama’s nomination of Judge Merrick Garland to fill the seat of Justice Antonin Scalia, who died in February.
Any decision to seek a recount or otherwise contest the election results would depend on the margin in any one state and its potential for affecting the national outcome. In 2000, neither Bush nor Gore could muster an Electoral College majority of 270 votes without Florida.
“For candidates who lose by a fraction of a percent, even up to 1.5 percent, they will at least explore their options for seeking a recount or challenging the results in a particular state,” said Michael Morley, a law professor at Barry University in Orlando, Florida. Morley represented Republican Joe Miller in his postelection challenge to Alaska Sen. Lisa Murkowski, who won re-election as a write-in candidate after losing the GOP primary to Miller in 2010.
If an initial recount doesn’t settle things, a lawsuit could follow, with appeals possible all the way to the Supreme Court.
If a case should make it that far, it would reach a court made up of four justices appointed by Republican presidents and four by Democrats. Just four of the eight were on the court for Bush v. Gore, although Chief Justice John Roberts aided Bush’s cause as a lawyer in private practice.
At this point, it’s impossible to know who might go to court and in which state, what the issue might be and who might benefit if justices were evenly divided. A tie is a win for the person who already has prevailed in the lower court.
But for some who already are dismayed about the extended Supreme Court vacancy since Justice Scalia’s death, a tie would have broad implications beyond the election.
“I worry about a 4-4 tie because it would undermine the court’s legitimacy,” Douglas said.
A Supreme Court appeal also would raise another delicate question. Would Justice Ruth Bader Ginsburg participate after the comments she made about Trump in July to The Associated Press and other news outlets?
She told AP then that she didn’t want to think about the possibility of Trump being elected and later called him a “faker” in an interview with CNN. Soon afterward, she said her comments were ill-advised and apologized.
Federal law requires recusal from any case in which a judge’s impartiality “might reasonably be questioned.” But at the Supreme Court, a justice alone is the final judge of whether to sit out a case.
A suit challenging presidential election results almost certainly would have to be wrapped up before Dec. 19, the date electors will meet.
But control of the Senate also might rest on results in one state. If a candidate is dissatisfied with the initial tally and a recount, then sues, it could be months before the winner is known.
That’s what happened in Minnesota in 2008. Democrat Al Franken trailed Republican incumbent Norm Coleman by a couple of hundred votes in the first count and led by about the same margin after a mandatory recount.
Coleman went to court and ultimately dropped his appeal after the Minnesota Supreme Court ruled against him.
Franken didn’t take his seat in the Senate until July 2009, more than eight months after the election.
22 responses to “‘Nightmare’ — Supreme Court tying 4-4 on election dispute”
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How is it a Nov 8, 2000 stock photo with one of the papers headline reading “Hillary Wins?” Photoshop ?
Media bias, no?
It’s not Photoshop. It was when she won her Senate race against Rick Lazio.
You guys are so quick to see bias everywhere…
will not come down to the supreme court, trump will win by a big margin.
lol, no The Donald will not win. It will easily be sweet Hillary.
IRT 64hoo, fully agree with your post. And, if (a very big if) there is a tie, as the Constitution says, the State shall resolve the issue. The Electoral College issues are never the U.S. Supreme Court issue, it’s a State issue, period.
Trump will win. How could anyone vote for Clinton, she is corrupt, foul-mouthed, hate-filled money grubbing politician who only cares about her party and her interests $$$.
Probably not everything you say is untrue. But she is not racist, dimwitted, or crazy- all hallmarks of the man-boy alternative candidate the republicans have offered this election year.
“Foul-mouthed”? If you really feel that way about her language, you’re one of those that Drumpf loves to grab.
People who’ve worked with/for Hillary have reported that she is an awful person. Yes, foul-mouthed. Rude, and a real B to boot. But I’m still voting for her. I agree with Kolohepalu. I can’t see how anyone can vote for Trump. I’d like to see Trump and Duterte in the same room.
Question is how can anyone vote for the Donald? Here is a clown who has ZERO political experience, has ties to Putin, and is a coward. (he refuses to release his tax returns something that hasn’t been done since before Nixon. Only someone who believes in secrecy would vote for the Donald!
“Sixteen years ago, the court divided 5 to 4 about whether to get involved at all and then voted the same way to stop Florida’s state court-ordered recount.”
I think this statement is misleading.
From what I read, it was a lot more complicated.
Bush won but it was close.
There was then a recount on which Bush won again, but it was even closer.
Florida law permitted a request for an additional, selective by county, manual recount, but it had to be completed by a certain date.
It got a little complicated at this point, but the upshot was that it was not completed so the Florida Secretary declared the election over.
Gore sued to allow recounts to occur for spoiled ballots (not readable by the voting machine – the hanging chads) in selected areas.
He lost in court, but then it went to the Florida Supreme Court, which went along with him.
It then was appealed to the US Supreme court, which rejected it because the selective recount was unconstitutional.
There was at this point no time for a recount that would satisfy the US Supreme Court requirements, which brought the process to an end.
Bush did not win. He only won the Supreme court which abandoned their principles to give him the election. One just needs to read their portion about how their decision could not be used as a basis for any other ruling. Consortium News had a number of articles on this which clearly shows that Gore should have been elected president.
Bush won the vote count twice.
This is a statement of fact.
A selective recount by county was legal under Florida law, but from what I read this was not the main point in the Supreme Court decision.
It was the selective manual recount of “hanging chad” ballots, in which a judgement would be made as to what the “voter had intended”.
The Supreme court ruling did not rule out a full recount, but the Florida electoral college was set to vote and there was no time.
Possibly the single American institution that Drumpf would be unable to suborn is the Supreme Court. I, for one, would look forward to a court challenge when he loses.
IRT HanabataDays, if the State Supreme Court decides on who wins, that decision will stand in the current U.S. Supreme Court 4 to 4 positions. A tied Supreme Court will send the decision back to the State. The State’s certified vote tally will stand.
Early voter numbers show Hillary leading, but the real numbers will be revealed come Nov.8th, just four days from now. Hillary to win by significant margins.
IRT McTruck, eh, how you know early voting “show” Hillary leading. Maybe get “D” ballots voting for Mr. Trump? Until the early voting envelops are opened and the vote counted, no body knows.
When trump looses the election, Putin will exact repayment of nearly 700+mil loaned to trump. And the child rapists won’t be able to talk himself out of repaying the Russian thug no matter how many lawyers he hires. His whole family will be under the gun, so to speak. He will have to sign over his entire trump empire over to Putin/Russia.
Wow, that’s pretty far out in left field.
lol, the Donald will just file bankruptcy again. No big deal. That is how republicans now operate. Stiff people.