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. For the full article, please visit POLITICO’s website.
“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’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.
. . .
This is also the scenario that would “increase the possibility of strategic litigation,” Potter said.
Excerpt taken from the article “Can the Supreme Court handle a disputed election?” by Darren Samuelsohn and Josh Gerstein for POLITICO.