In which I confess I have little concern that an 8-member Supreme Court is asked to resolve a presidential election dispute

There have been many who've expressed great concern that an 8-member Supreme Court would be asked to resolve a dispute this presidential election, and that dividing 4-4 would be a nightmare. I confess, I have little concern for this scenario. Indeed, on Twitter, I went so far as to say "zero concern." I'd like to build on that here.

As a predicate, it's worth noting that I have a strong sense that courts should often refrain from entering the political thicket in election law matters. The contours of that can vary, of course. But I've written on disputes concerning Mary Landrieu's residency and Ted Cruz's eligibility; weighed in on Evan Bayh's residency and moves to pull Donald Trump's name from the ballot; and written academic commentary on judicial involvement in presidential and congressional elections, including the 2016 presidential election, and the redistricting process. Consistently, across these cases, regardless of partisan benefit, I've suggested judicial involvement is not preferred and the political process is better. I do not always think so, and the context of a case before the Court would affect my views, of course, but I have tended to prefer political solutions to judicial ones in election disputes, particularly in presidential elections, and even more particularly where there is some specific authority lodged in Congress to resolve such disputes (more on that soon).

First, the issue, I think, is more often a stalking horse for the pending nomination of Judge Merrick Garland to replace Justice Antonin Scalia. "#WeNeedNine" enthusiasts ardently claim the Senate should confirm the President's nominee. I make no claims regarding that process here--there are, of course, good reasons for the Senate to consider a president's nominee and ensure that the statutory number of seats on a court are filled. Instead, I simply examine the potential complications of an 8-member Supreme Court. (And while this line of argumentation is more a consequentialist claim, I find the stronger basis for argument to be more normative claims about the nomination process, advising and consenting, timing of judicial nominees in election years, and so on. More on the consequentialism claim--which I think is fairly low, anyway--in a bit. )

Second, even in the event of a 9-member Supreme Court, there are still risks of an 8-member Court tasked with hearing a dispute this presidential election--specifically, because Justice Ruth Bader Ginsburg made comments about Donald Trump and this presidential election that may invite a call for her to recuse in such a dispute. Indeed, an 8-member Court would make a recusal case easier, because it would then become a 7-member, and odd numbered, Court. But, again, given how little attention has been given to this component, it strikes me that concerns are, again, more as a stalking horse for another issue (i.e., the nomination of Judge Garland), rather than addressing concerns about what might happen in a disputed presidential election.

Third, Bush v. Gore was truly extraordinary, and unusual, for a presidential election. There's a kind of fascinated anticipation of an apocalyptic disaster that would lead to such a dispute recurring. But perhaps I'm simply more realistic about the odds of such a scenario recurring. I think the chances are exceedingly small--even if it's happened before, and even if this election is ostensibly close, and even if we have heard loud rhetorical cries of "rigged" elections that would inspire litigation.

In part, it's because there must be an election where sufficient electoral votes are in dispute because of a sufficiently close margin in those jurisdictions. When it's a single state, like Florida in 2000, that would be the tipping point of the election, and the margin of error is close enough to call for a recount, is the limited situation where such disputes are likely to arise. While New Mexico in 2000, in which Gore's margin of victory was 0.061%, was also quite close, flipping that state would be meaningless, and, therefore, why litigation was not a concern there. So part of the reason I have little--or zero--concern is because I do not believe the election will be particularly close in enough jurisdictions to matter. Of course, such predictions are sure to go wrong, but it's a reason my concern remains low.

Fourth, the legal claims would have to be of the type that would change the outcome of the election. Even a margin of 0.1% is a fairly fantastic deficit to overcome in even the most generous of recount regimes. It is almost impossible to win a recount in a close election simply because of the sheer volume of things that must cut the loser's way. Litigation may be likely, then, in a close election. But litigation that in any sense would likely succeed is even far less.

Fifth, even if there were a factual scenario along the lines of Bush v. Gore, of a tipping-point jurisdiction with a narrow margin of victory, lower courts, and parties, would know much more about what to anticipate ahead of that dispute. For instance, December 13 is the "safe harbor" date for states to submit their slates of electors with presumed regularity under the Electoral Count Act, a point that drew a great deal of attention in Bush v. Gore. Remedies would be geared with greater speed toward that date than in the past and alleviate the very late concerns.

Sixth, in the event the litigation began in state court, as it did in Bush v. Gore, and a state supreme court offered the final word on an issue in state, it's not immediately obvious that the Supreme Court would feel the need to weigh in. It's not clear that some of the more moderate member of the Court, or those with a longer view of the Court's institutional role, such as Chief Justice John Roberts, Justice Anthony Kennedy, or Justice Stephen Breyer, would advocate for hearing a petition from that state court. True, it happened in 2000. But it might be the case that they would simply leave the lower court judgment alone, regardless of the partisan impact, and, if other members of the Court acted in a more partisan fashion, then there would not be enough votes to grant certiorari.

Seventh, in the event a case came before the Court that failed to heed the lessons in previous litigation, it would assume that the Court would split in a 4-4 fashion along partisan lines (and assuming Justice Ginsburg does not recuse). While we deeply politicize all issues on the Court these days, especially when thinking about issues with overtly partisan outcomes, it's not obvious that the posture of the case would lend itself toward obvious partisan outcomes, and history shows that few cases are ever decided by an equally-divided court. So it is not obvious that even a consequentialist concern is sufficient to give rise of notable worry.

Eighth, even in the event the Court sends the case back by a 4-4 vote... what, exactly, is the harm? That a state supreme court or a federal appellate court has had the last word on a federal issue? They have had the last word on many such issues, even in many election cases. The fact that this is a presidential election somehow means that people expect, or long for, the Supreme Court to weigh in. But perhaps the narrative could differ, if only someone would advocate for a different narrative! That is--lower courts, and state courts, decide important issues all the time, and the Supreme Court does not frequently intervene in those disputes. That's okay, and, perhaps, good!

It is also complicated by the fact that, in all likelihood, the outcomes in 50 of the 51 jurisdictions sending electors to Congress, whereas this one last jurisdiction--and the tipping point jurisdiction--is in dispute. The fact that one state effectively decides the presidential election has great rhetorical impact. But it is, in reality, what has also independently happened in those many other less-controversial states that matters just as much. And it is really about this one state's resolution of its election--even if it has a national impact. Many election have a "national impact"--consider Al Franken's victory in Minnesota in 2008 after extensive litigation that ensured that Democrats would control 60 seats in the Senate, a filibuster-proof majority. That also had a "national impact," and the United States Supreme Court didn't weigh in. Yes, it's not the presidential election, but an element of analogy still stands.

Ninth, even if the lower court ruling stands, it is unlikely that a Supreme Court ruling from nine justices would actually affect the outcome. Recall, of course, that if the case is a close issue, there's, say, something in the neighborhood a 50% chance that the Court affirms the lower court. (And in the event it isn't a close issue, then it wouldn't even deadlock at 4-4, as raised in the seventh point above.)

Tenth, Congress is always in a position to ignore what the Court said anyway! Congress has power to count the electoral votes. It has provided for a mechanism to handle objections to the counting of electoral votes. Objections were raised in 2000 and 2004, and Congress sorted it out. Congress resolved disputed and competing slates of electors in 1960 most notably, but also at other times. And while some have suggested that the Electoral Count Act is unconstitutional, in the event it were ever challenged, everyone agrees that Congress has the power to count, and to develop the process for counting, electoral votes.

Reserving to Congress the power to resolve a disputed presidential election is emphatically the textual commitment of the Constitution. It lays out mechanisms for Congress to choose the president in the event no one secures a majority, most obviously. But in the event it is faced with competing slates of electors, or a question about the results, it is in a position to handle this process--perhaps it didn't handle it very well after 1876, and perhaps it wouldn't handle it after this year's election, but it is worth taking seriously Congress's role without devolving to the judiciary.

In sum, I recognize that there is, of course, the chance for a perfect storm--for a narrowly-contested election in a tipping-point jurisdiction (or jurisdictions) that leads to federally-disputed litigation demanding Supreme Court involvement, where the Court takes the case and is evenly divided by a 4-4 margin. But I have simply concluded that that chance is exceedingly small; and, in the event it occurs, is not terribly noteworthy given that lower courts are quite capable, the low likelihood a ninth justice would affect the outcome, and that Congress always retains the power to review the results regardless of judicial involvement.

I hardly consider myself a pollyanna--I anticipate litigation, of course, and heated rhetoric, and sore losers, and some series of apocalyptic claims of "rigged," "suppression," "fraud," "intimidation," and the like, whether right or wrong, over the next few days. But it's simply that, when I assess the contingencies I laid out above, I have little concern that an 8-member Supreme Court is asked to weigh in on a disputed presidential election.