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.
This possibility, although quite remote, is just one of many reasons why the Senate must hold a hearing and vote on President Obama’s nominee for the Supreme Court, Chief Judge Merrick Garland. Why even take the risk that the court is not in full force to decide the country’s most pressing legal question?
Of course, many Republicans may not want a Democratic nominee on the court for fear that he would be the deciding vote in a presidential election dispute. But Judge Garland has proven already that he is not an ideologue. He would approach any legal dispute – even one involving sheer politics – with an impartial, careful mind. His 18-year record as an appellate judge is clear on his judicial temperament.
Indeed, just because a vote-counting dispute goes to the courts, that does not mean that politics will determine the case or that the court will necessarily split along ideological lines. Most people do not realize that the main legal issue in Bush v. Gore – that Florida’s vote-counting procedure violated equal protection – was a 7-2 decision. The portion of that case that was 5-4 was on the remedy for this constitutional violation, whether to continue to count ballots under a new standard or stop the recount.
Full Article: What if eight justices must decide election?.