{"id":14505,"date":"2016-11-08T04:33:23","date_gmt":"2016-11-08T04:33:23","guid":{"rendered":"http:\/\/www.biphoo.com\/bipnews\/?p=14505"},"modified":"2016-11-08T04:33:23","modified_gmt":"2016-11-08T04:33:23","slug":"can-the-supreme-court-handle-a-disputed-election","status":"publish","type":"post","link":"https:\/\/www.biphoo.com\/bipnews\/news\/can-the-supreme-court-handle-a-disputed-election.html","title":{"rendered":"Can the Supreme Court handle a disputed election"},"content":{"rendered":"

Can the Supreme Court handle a disputed election<\/span><\/strong><\/span><\/h2>\n

Can the Supreme Court handle a disputed election:-\u00a0<\/strong>It\u2019s the campaign scenario that keeps partisan operatives and lawyers awake at night: Donald Trump and Hillary Clinton end Election Day deadlocked with key states in a recount, and a short-handed Supreme Court can’t resolve the matter because the eight justices split down the middle.<\/span><\/p>\n

In such a case, a lower-court ruling would probably be left to stand, and the decision would carry even less authority than Bush v. Gore, the high court\u2019s widely criticized 5-4 ruling resolving the 2000 presidential election.<\/span><\/p>\n

With Trump and Clinton concluding one of the most toxic presidential campaigns in modern history, amid charges of foreign influence and “rigged” procedures, the lack of a fully functioning Supreme Court to act as a legal backstop is worrisome to some operatives on both sides.<\/span><\/p>\n

\u201cThere\u2019s a hell of a scary thought,\u201d said Jim Manley, a longtime Democratic staffer. \u201cI\u2019m not sure the country can handle that right now.\u201d<\/span><\/p>\n

\u201cThis would not be a good moment for the Supreme Court to have to deal with a partisan dispute,\u201d added Trevor Potter, a veteran Republican attorney and former chairman at the Federal Election Commission.<\/span><\/p>\n

To date, the Supreme Court has managed to withstand the political maelstrom of the 2016 election by staying out of it. But it\u2019s been called upon to resolve highly charged partisan disputes in just the last few days.<\/span><\/p>\n

On Monday, a unanimous court dismissed a last-minute Democratic plea to reinstate an injunction that would have blocked Trump\u2019s campaign and its allies from taking actions that would allegedly intimidate voters in Ohio. That ruling came right on the heels of a Saturday order reinstating an Arizona law banning the collection of independent ballots.<\/span><\/p>\n

Both of those high court moves favored Republicans, and court watchers noted the rulings \u2014 both issued without recorded dissent \u2014 reflected the eight sitting justices\u2019 attempts to keep themselves out of direct fire in an already venomous presidential campaign.<\/span><\/p>\n

But while a lay-low approach can work in cases involving the kinds of voting questions that matter before Election Day, it may not work so easily if there are any legal disputes stemming from Tuesday, especially on issues involving recounts or other voting disputes where the overall results are close and battleground states like Florida or North Carolina are still up for grabs.<\/span><\/p>\n

\u201cIt\u2019ll be the first thing people think if there\u2019s a contested election,\u201d Potter said.<\/span><\/p>\n

And there\u2019s reason to see the courts coming into play. Trump\u2019s real estate and business career are coursed with litigation and the Republican has run his presidential campaign alleging everything from voter fraud to widespread \u201crigging\u201d by the political establishment and the media.<\/span><\/p>\n

\u201cIt does seem if Trump loses there\u2019s going to be challenges to the voting results. When you spend all your time saying the results are rigged you\u2019ve got to expect there are lawsuits challenging results,\u201d said Adam Winkler, a UCLA constitutional law professor.<\/span><\/p>\n

It\u2019s also apparent to the campaigns that a short-handed Supreme Court would be a key consideration in any post-election legal strategies. After all, any decisions where the high court splits 4-4 would mean that the underlying ruling stands. That means the federal appeals courts or state supreme courts could wind up being the final arbiters in deciding who wins the White House.<\/span><\/p>\n

\u201cIt absolutely raises the stakes in the federal circuit courts and the state court systems when you don\u2019t have a fully staffed Supreme Court,\u201d said Alicia Bannon of the liberal Brennan Center at New York University.<\/span><\/p>\n

This is also the scenario that would \u201cincrease the possibility of strategic litigation,\u201d Potter said.<\/span><\/p>\n

\u201cWhat litigants would do is bring their claims according to which court they think is likely to be more favorable to them,\u201d added Dan Tokaji, a professor of election law at Ohio State University. \u201cIf you\u2019re a Democratic lawyer and you\u2019re in a jurisdiction with an unfriendly state supreme court you could try to head towards the circuit court by framing a claim under federal law. And vice versa for Republican lawyers.\u201d<\/span><\/p>\n

So how would these kinds of cases break down? Democrats would have an advantage in many of the federal appeals courts, where their party\u2019s appointees hold majorities in eight of the 12 geographic circuits. Democratic appointees seem especially likely to carry the day in federal court decisions in battleground states like North Carolina, part of the 4th Circuit, and Florida, part of the 11th.<\/span><\/p>\n

However, federal courts might not be friendly to Democrats in an election-related fight emerging in Ohio or Michigan. Those states are part of the 6th Circuit, where Republican nominees outnumber Democrats, 10-5.<\/span><\/p>\n

\u201cImagine a disputed outcome in Ohio or Michigan, followed by a 6th Circuit decision that determined the winner with the Supreme Court paralyzed,\u201d said Stephen Gillers, an NYU law professor.<\/span><\/p>\n

By and large, Republicans are in better shape in state supreme courts, where conservative activists have been making efforts in recent years to get friendly judges appointed and elected. Several of the key swing states have high courts that lean to the GOP.<\/span><\/p>\n

The Florida Supreme Court, for example, has four Republican appointees, two Democratic appointees and one justice who got nods from governors of both parties. North Carolina\u2019s Supreme Court, which is in the midst of a hotly contest election itself, has four GOP justices to three Democrats. Ohio\u2019s high court has six GOP justices and just one Democrat.<\/span><\/p>\n

\u201dRepublicans and conservative groups have really prioritized state supreme courts,\u201d said Bannon. Most of the effort seems to have been directed at obtaining rulings that rein in personal-injury lawsuits and give GOP-led legislatures wide latitude in setting the boundaries of congressional districts, she said.<\/span><\/p>\n

\u201cThe specific potential of the courts to decide a presidential election\u2014I don\u2019t think that\u2019s been the main focus of any of these groups,\u201d Bannon added.<\/span><\/p>\n

Experts say judges of both parties tend to vote along party lines in election-related cases, but Republicans are more likely to favor the GOP than Democrats are to favor their fellow partisans. The association gets stronger when they\u2019re elected judges who\u2019ve gotten large sums campaign donations.<\/span><\/p>\n

\u201cBush v. Gore is a very famous election case but these happen all the time in state supreme courts, typically for less important offices,\u201d said Emory law professor Joanna Shepherd. \u201cIf a Republican is slightly more likely to favor Republican litigants in a contested election situation . . . money seems to make it worse.\u201d<\/span><\/p>\n

Critics point out the current eight-member U.S. Supreme Court has had an easier time with less thorny topics since the February death of Justice Antonin Scalia, creating a vacancy prolonged by the subsequent Senate GOP blockade against President Barack Obama\u2019s replacement nominee, Merrick Garland. But there\u2019s little doubt the court has struggled since Scalia\u2019s death when it\u2019s handled the tough stuff like immigration and birth control.<\/span><\/p>\n

The eight remaining justices have tried to varying degrees to skirt the 4-4 issue. \u201cWe will deal with it,\u201d Justice Samuel Alito said shortly after Scalia\u2019s death in February. But Justice Ruth Bader Ginsburg earlier this summer said eight justices \u201cwas not good enough\u201d for handling cases involving politically charged issues like immigration.<\/span><\/p>\n

Justice Stephen Breyer, asked directly last month during an appearance on MSNBC about how the court would handle any election-related cases, first tried to explain just how infrequent a split ruling comes down. \u201cHalf of our cases are unanimous,\u201d Breyer said.<\/span><\/p>\n

Pressed on whether he was concerned about a split court being forced to weigh in on the 2016 election, Breyer replied, \u201cWhen you say \u2018not concerned,\u2019 I\u2019m trying to give you a picture. There were about four or five cases, depending on how you count, maybe four or five out of 70 to 75 cases during the year where the court did split 4-4.\u201d<\/span><\/p>\n

No doubt, the very notion that the Supreme Court could be forced into the election would be mired in politics. Whoever is the next president will get to decide whether Garland\u2019s nomination should be resubmitted. And even the sitting justices have gotten in hot water when talking about the presidential campaign.<\/span><\/p>\n

Ginsberg earlier this year slammed Trump for not releasing his tax returns, calling the GOP nominee a \u201cfaker\u201d with \u201cno consistency about him.\u201d While she later apologized, Trump has taken issue with the justice\u2019s remarks. On Twitter he wrote that the liberal judge had \u201cembarrassed all by making very dump political statements about me. Her mind is shot \u2014 resign!\u201d<\/span><\/p>\n

Several longtime Supreme Court watchers shrugged off concern that the justices would even have to deal with election questions. Ilya Somin, a George Mason law professor, said there\u2019s a \u201clow probability\u201d the Supreme Court would be a final arbiter in the 2016 campaign.<\/span><\/p>\n

Source:-\u00a0http:\/\/www.politico.com\/story\/2016\/11\/supreme-court-election-clinton-trump-230910<\/span><\/p>\n

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