Editorials: What if eight justices must decide election? | Joshua A. Douglas/USA Today

Imagine the worst case scenario.  It is Wednesday, Nov. 9, the day after the election, and we do not yet know the winner of the presidential race. Worse still, the outcome will turn on a ballot-counting dispute in one state.  A lawsuit is filed, and the courts are enmeshed in an election law contest. It’s Bush v. Gore round two: Trump v. Clinton.  The case reaches the Supreme Court. Do we want to take the chance of having an even number of justices deciding that dispute, hoping that the court will not deadlock 4-4? A post-election case that reaches the Supreme Court will necessarily come from a lower court. The rule, in the case of a Supreme Court tie, is that the lower court’s decision is affirmed, without a precedential opinion. So if Trump v. Clinton does reach the Supreme Court, and if the vote is a tie, then a lower court – say an elected state supreme court in a battleground state – would essentially decide the presidential election.

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