Legal experts call it the worst-case scenario: The day after the election arrives and the outcome turns on a dispute in one state. As things stand now, the suggestion seems remote. But with Donald Trump refusing to promise he will accept the results of next month’s election, eyes naturally turn to the Supreme Court. The problem: there are only eight justices — four nominated by Republicans, four by Democrats. So what happens if they split, 4-4? “That’s the doomsday scenario,” veteran Supreme Court advocate Carter Phillips told an audience this fall, responding to a hypothetical question about a candidate who suspected the election was rigged and went to the courts. Phillips explained that if the court were to deadlock it would mean the justices were left to simply affirm a lower court opinion. Election law expert Joshua Douglas of the University of Kentucky College of Law says that power could end up resting with the lower courts, including even a state supreme court consisting of judges who were elected in a battleground state.
There are obviously a lot of “ifs” in the scenario, including the type of challenge and where it was filed. Douglas has written an entire law review article about the different mechanisms states use to resolve election contests. He makes the point however, that if high court were to split 4-4, they’d issue a slip of paper technically upholding a decision from another court.
“So if ‘Trump v. Clinton’ came up in say, Florida, and the Florida Supreme Court decided it, and the Supreme Court of the United States took the case and deadlocked, the result would be affirming the decision of a state supreme court.”
“At least with Bush v. Gore,” he said, “we had the highest judicial body in the country resolving the dispute and providing finality and certainty.” The 2000 Bush v Gore case was decided 5-4 along partisan lines, resulting in Al Gore conceding the race to George W. Bush later that day.