The signs that the Supreme Court is grappling with a depleted bench are starting to show. But what has been a trickle of tie-votes, bizarre orders and slowed activity could turn into a series of orders with contradictory effects as the court is confronted with an onslaught of election-related litigation in the lead-up to Nov. 8. As the last stop for lawsuits challenging voting restrictions and administrative practices, the Supreme Court would normally see an increase in those cases as the 2016 election draws closer. But the ideologically split court will be facing more than the usual uptick in requests for the justices to intervene in legal battles over voting laws. The 2016 election marks the first presidential election since the Supreme Court crippled the Voting Rights Act and ushered in a wave of voting restrictions now tied up in lawsuits. The Supreme Court will be without its decisive ninth vote just as voting rights advocates will be asking it to come to terms with its 2013 Shelby County v. Holder decision.
“There’s a lot of uncertainty in the field and with a court that is not full, there’s concern that that uncertainty is just going to continue,” Jennifer Clark, a counsel for the Brennan Center’s Democracy Program, told TPM. “That problem is only compounded by the gutting of the Voting Rights Act, which has created this whole new landscape where nobody really knows exactly what the rules that we’re operating in are.”
For the lawyers involved in the legal challenges, the absence of a ninth justice on the court adds a new wrinkle in what was already expected to be a chaotic season of Supreme Court appeals. Will the specter of a 4-4 split affect how the court handles the last-minute petitions to halt certain voting restrictions that are currently being examined by lower courts?
“That is the question we are asking ourselves in the legal community every day,” said Pratt Wiley, who is a legal strategist and Democratic National Committee’s national director of voter expansion. “This is uncharted territory for us to have a situation like this, and potentially going into an election with a court that is evenly divided like this.”