The Deadlocked Supreme Court Could Make the 2016 Election Even More Chaotic
As if the 2016 election didn't have enough chaos, here's another layer: A deadlocked Supreme Court that could leave conflicting lower court rulings on voting rights scattered around the country. This is the first presidential election since new suppression laws were enacted under a gutted Voting Rights Act, and the new voting restrictions enacted in various states are now in litigation. The 4-4 Supreme Court is probably going to be petitioned to stay these laws before November's elections, and that could result in a patchwork of conflicting lower court rulings prevailing.
“There’s a lot of uncertainty in the field and with a court that is not full, there's concern that that uncertainty is just going to continue,” Jennifer Clark, a counsel for the Brennan Center's Democracy Program, told TPM. “That problem is only compounded by the gutting of the Voting Rights Act, which has created this whole new landscape where nobody really knows exactly what the rules that we’re operating in are.”
For the lawyers involved in the legal challenges, the absence of a ninth justice on the court adds a new wrinkle in what was already expected to be a chaotic season of Supreme Court appeals. Will the specter of a 4-4 split affect how the court handles the last-minute petitions to halt certain voting restrictions that are currently being examined by lower courts?
“That is the question we are asking ourselves in the legal community every day,” said Pratt Wiley, who is a legal strategist and Democratic National Committee’s national director of voter expansion. “This is uncharted territory for us to have a situation like this, and potentially going into an election with a court that is evenly divided like this.”
Cases in Texas, North Carolina, Ohio, and Wisconsin—which are all in lower courts—are key. Most probably won't make it to the Supreme Court by November to be decided on the merits, and so the court will probably be asked to issue emergency orders staying them for this election. That could lead to real chaos.
Richard Hasen, a professor at UC Irvine School of Law who also runs the Election Law Blog, told TPM, "I do think we could see a situation where the lower courts—whether it’s a 3-judge court, or more likely a federal court of appeals or a state Supreme Court—issues an order and it can be conflicting in its legal reasoning with another court’s order, and the Supreme Court won’t resolve it, because they’ll be split four-to-four."
In the case of Wisconsin's voter ID law in the 2014 election, the Supreme Court ruled 6-3 to block the law in October of that year, since the election was so close. That doesn't necessarily mean there will still be a 5-3 majority this time around, since that was kind of a one-off. Between their own unfolding meltdown playing out in the presidential primary and this potential mess, Republicans seem hell-bent on making 2016 the year every damn thing gets broken.