The looming election and the Supreme Court will converge in the coming months as voting rights challenges on issues such as Voter ID, early vote cutbacks and same-day registration make their way to the high court. Challenges during an election year are always fraught, but this cycle things could grow even more complicated because the court only has eight members to review the cases, and there’s a good chance that it could split 4-4. In the recent past, the Supreme Court has signaled that it does not like courts to disrupt rules and regulations too close to an election out of the fear that it could cause confusion to voters. As such, there might be a sentiment on the court — when it rules on one of the emergency motions it is certain to get — to vote to preserve the status quo until after the election and then agree to take up one or two cases and settle the big issues concerning the meaning of the Voting Rights Act and how the Constitution applies to current laws regulating the voting process.
But what happens if the court splits 4-4 on the emergency motion? Deadlock. It means that the Supreme Court will simply uphold the lower court decision and set no new precedent. That could produce a situation where –depending upon where you live — you might play by a different set of rules.
“The key truth is that we are most probably not going to get answers to the big questions until after November, and likely not until we get a ninth justice,” said Edward Foley an election law professor at the Ohio State University.
In the meantime, Foley believes, the country could face a situation “where each circuit might be the final arbiter for each state in this year’s election.” Such a patchwork of rules and regulations will once again highlight the impact of a 4-4 court on the country.