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Monday, October 03, 2016

The Nightmare Scenario: Trump v. Clinton at the Supreme Court

It's the first Monday in October, so attention has turned to the new term of the U.S. Supreme Court.  Predictably, many stories, such as this excellent N.Y. Times Editorial, point out the unprecedented nature of the Senate Republicans' refusal to consider the nomination of Judge Merrick Garland.  That Times Editorial also highlights the downsides of a less-than-full Court on voting rights issues:

Meanwhile, some of the nation’s most pressing legal issues are awaiting substantive rulings by the court. Most urgent among these are lawsuits against the efforts of Republican legislatures to suppress voting by minorities, young people and others who tend to vote Democratic.

For example, in July a federal appeals court panel struck down a 2013 North Carolina law that one election-law scholar called "possibly the largest rollback of voting rights" since 1965. That court found the law had been enacted intentionally to reduce black voter turnout.

North Carolina appealed that ruling to the Supreme Court, which split 4-to-4 without issuing any explanation, meaning that the lower court’s decision was upheld. While that was the right result, a full court could have set a legal standard on voter suppression efforts that would have applied nationwide.

Missing from this analysis is the nightmare scenario: a disputed presidential election that goes to the courts.  Call it Bush v. Gore, round 2: Trump v. Clinton.  The more Donald Trump suggests that he will not accept the results of a Clinton win, the more likely this could occur.

Let's say that there are disputed ballots in Florida, Ohio, Colorado, or another state with a close result.  Trump contests the election through whatever procedures the state has created (detailed here).  The final step is the Supreme Court.  And the Court ties 4-4.  That result would simply affirm the lower tribunal's decision, without a precedential opinion.  If people think Bush v. Gore was illegitimate -- or at least overly partisan -- then this would be 1000 times worse.  

Not many people are discussing this nightmare scenario, probably because the likelihood is fairly small that the Court would take the case.  Chief Justice Roberts surely would try to avoid harming the legitimacy of the Court by, in essence, deciding another presidential election, especially one so hard fought and vitriolic.  The Court would likely try to stay out of it -- which itself could be problematic depending on what happens in the lower courts.

But this scenario is not entirely implausible.  And it keeps me up at night.


Posted by Josh Douglas on October 3, 2016 at 09:58 AM in Judicial Process, Law and Politics | Permalink


Never mind my earlier question about the EC issue going to SCOTUS.

Posted by: Miriam Kerzner | Oct 8, 2016 3:54:06 PM

Jim -- the Court would not necessarily tie 4-4, but it's certainly plausible, especially given the 4-4 splits in some other cases (such as refusing the emergency motion on North Carolina's voting law 4-4).

Michael -- I think that's absolutely correct if the losing Justices will go along. That very well may have happened in the Ohio "golden week" litigation. But I could see a situation where they would feel a principled basis to register their dissents.

Posted by: Josh Douglas | Oct 3, 2016 10:55:08 PM

I tried posting this earlier, but it doesn't look like it registered.

Even with its current 4-4 ideological split, the Supreme Court can enhance the legitimacy of the outcome of litigation that arises concerning the presidential election, thereby potentially fostering public acceptance of the outcome of the election itself.

If the Supreme Court splits 4-4 in a case, the judgment of the lower court is affirmed, but the Supreme Court's ruling is not deemed precedential. The circuit court's opinion and judgment stand, but are only afforded the weight any other circuit court ruling would receive. In these situations, the Justices seeking to overturn the lower court's opinion are, in effect, the "losing" Justices, even though there were equal Justices on both sides of the issue.

If an election-related case were heading for such a 4-4 split in the Supreme Court, one (or perhaps all!) of the losing Justices should switch their vote to join in the majority, which should then issue a per curiam unsigned order summarily affirming the lower court ruling without opinion. This approach would result in the lower court being affirmed in the same manner as with a 4-4 split. And, comparable to a 4-4 split, such a summary affirmance would not carry the same precedential weight as an actual Supreme Court opinion. Thus, the legal consequences of a summary affirmance are materially similar to a 4-4 ruling, but its symbolic effects are very different. Having a majority of the Court (or perhaps even the whole Court) supporting a ruling concerning the presidential election contributes to the perceived legitimacy of the Court's action, while still avoiding the creation of a binding Supreme Court precedent with which the "losing" Justices may disagree. If litigation affecting the outcome of the presidential election reaches the Supreme Court, its resolution should have the imprimatur of a majority of the Court, rather than a split decision which may undermine the perceived legitimacy of the winning candidate.

Posted by: Michael T. Morley | Oct 3, 2016 10:44:00 PM

What makes you think the Court would divide 4-4?

Posted by: Jim Pfander | Oct 3, 2016 8:56:05 PM

Consider also the calls for Ginsberg's recusal based on her antipathy towards Trump.

Posted by: Anon | Oct 3, 2016 1:26:08 PM

The Supreme Court turned down a chance to force the Senate to have hearings for Garland: http://www.bna.com/supreme-court-grassley-b73014445715/ [denied among today's orders].

Trump is no Gore -- might have not took the Supreme Court's ruling as the final answer. And, in various cases, the correct choice would be just let the lower court stand. But, yes, don't want a case so open to doubt that results in such a 4-4 split. Perhaps, a serious attempt to challenge the count in Congress would result in that scenario.

Posted by: Joe | Oct 3, 2016 10:39:33 AM

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