(Bloomberg) -- The death of Supreme Court Justice Ruth Bader Ginsburg means eight justices would have to decide issues around what is shaping up to be the most litigated election in U.S. history, with a 4-4 deadlock a distinct possibility.
The nation’s highest court has already been asked to rule on voting in the midst of the coronavirus pandemic, and it is all but certain to face more legal questions as lower court rulings are appealed and new cases filed after the election.
It could be called upon to decide election questions that help determine who won the presidency on Nov. 3.
President Donald Trump and Republican allies are pushing for a swift nomination and confirmation hearings to replace the liberal jurist who died Friday. But it’s unclear whether they would be able to seat a new justice before Election Day.
That leaves the court with eight justices instead of the traditional nine, just as it was in the 2016 election season, after the death of Justice Antonin Scalia.
But in 2016 the eight were evenly divided between conservative and liberal justices. With Ginsburg’s death, the court now has a 5-3 conservative majority, with Chief Justice John Roberts and Justice Samuel Alito, both appointed by George W. Bush; Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh; and Justice Clarence Thomas, appointed by George H.W. Bush.
The liberal minority includes Barack Obama-appointed Justices Elena Kagan and Sonia Sotomayor and Bill Clinton-appointed Justice Stephen Breyer.
But Roberts, Gorsuch or Kavanaugh could side with the liberal justices, making a 4-4 tie possible.
“We cannot have Election Day come and go with a 4-4 court,” Senator Ted Cruz of Texas said Friday on Fox News, pushing for a swift replacement for Ginsburg, and seeming to put Roberts on the liberal side of the court. “A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested election.”
Legal experts say it’s hard to predict how any post-elections case would play out, with already 245 lawsuits in 45 states plus the District of Columbia and Puerto Rico over how to hold a presidential election in the middle of a pandemic.
But the chain of events in which the Supreme Court plays a role in choosing the president remains unclear. Democratic nominee Joe Biden is ahead by 6 percentage points in the RealClearPolitics average of national polls, but the race is down to a tie in some battleground states, which means a narrow Electoral College margin is possible.
Trump has repeatedly signaled his intent to challenge any unfavorable results, and his campaign is already suing over election rules in Iowa, Montana, Nevada, New Jersey and Pennsylvania. Meantime, progressive groups are pressuring Biden to vow to exhaust all legal avenues in the event of a disputed election, saying he should not concede prematurely.
A dramatic surge in vote-by-mail and recent changes in election rules by governors, local officials and judges due to the pandemic mean there are a lot more points of contention than during a typical election.
But in some ways, the fact that so many legal fights are playing out now is reducing the chances of another 2000-style election meltdown, said Dale Ho, director of the ACLU’s voting rights project. He said that more of these issues will have been resolved before the election.
“It’s better to be litigating that now instead of the Thursday after Election Day,” he said.
If a case did reach the Supreme Court, lawyers for both sides would aim their arguments at Roberts, a swing vote who wants to safeguard the court’s institutional reputation, or Gorsuch, who is known to sometimes follow his conservative principles to unpredictable outcomes, or even Kavanaugh, the newest member of the court.
In the event of a 4-4 tie, with Roberts or Gorsuch siding with the liberal justices, the lower court ruling being appealed would remain in place, but that would likely leave the public feeling the question wasn’t settled.
Jeremy Paul, a law professor at Northeastern University, said that Ginsburg was a reliable vote in favor of opening access to voting and counting ballots, dissenting from the decision in Bush v. Gore in 2000 to halt counting in Florida, which effectively made George W. Bush president.
“She was a predictable vote for fairness over process,” he said.
Ginsburg’s death also puts more stress on the Supreme Court as an institution. Although the court gets higher marks from the public than Congress or the current president – 58% approved of how it’s handling its job in a Gallup poll in July – opinion has become more polarized, and any decision would be viewed by the losing side with suspicion.
Still stung by the Republican refusal to vote on Obama’s nominee, Merrick Garland, in 2016, Democrats would explode if the court’s majority appears to be tilting the scales toward Trump. The president, meantime, has long criticized judges who don’t rule in his favor and would likely encourage his supporters to view any decision that boosts Biden as illegitimate.
Barbara Perry, director of presidential studies at the University of Virginia’s Miller Center, said that, for better or worse, the court was able to step in to resolve the dispute in the 2000 election and ratchet down tensions, while similar involvement in this year’s election would only further inflame things, especially with an eight-member court.
But given the number of potential problems in November, she said that may be inevitable.
“They’re going to take a hit,” she said.
©2020 Bloomberg L.P.