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Supreme Court heads into election season amid uncertainty

Posted September 22, 2020 3:53 p.m. EDT

— The death of Justice Ruth Bader Ginsburg has tilted the Supreme Court further rightward at a time when voting access cases or even a contested presidential election could head to the high court.

But court experts are mixed on whether the loss of Ginsburg would play a significant role in shaping the court's handling of cases related to the 2020 presidential election, even if a conservative successor to Ginsburg is confirmed by the Senate before November 3.

The death of the court's liberal icon didn't change the conservative hold on the Supreme Court's majority. The Supreme Court has made a series of split rulings this year with Ginsburg in the minority, showing the court is hesitant to expand access to voting as a result of the pandemic.

That includes deciding against extending a deadline for receiving absentee ballots in the Wisconsin primary, blocking a ruling to ease absentee ballot requirements in Alabama and denying a petition to expand mail-in voting in Texas. Ginsburg also was in the minority when the high court declined to step into an important case this year that blocks thousands of felons from voting in Florida until they finish paying all court-related fees.

While the Supreme Court could play a role in determining how voters can cast ballots, experts say the odds of another Supreme Court ruling deciding the presidential election, like the 2000 Bush v. Gore case, are quite low, requiring a cascade of circumstances to align to produce the razor-thin disputed result in a state that would decide who wins the White House.

Still, the Supreme Court's role in the election is under new scrutiny in the wake of Ginsburg's death and the prospect that Senate Republicans will confirm a conservative successor before the election.

President Donald Trump's campaign has filed suits in several states to try to curtail mail-in voting, arguing mistakes from a voting option that's greatly expanded during the pandemic could dilute votes. Trump has repeatedly claimed the results of the election will be "rigged" or even "never be accurately determined" because of the increase in mail-in voting -- and this weekend he claimed the courts would help his cause.

"We're going to have a victory on November 3, the likes of which you've never seen. Now we're counting on the federal court system to make it so we can actually have an evening where we know who wins, OK, not when the votes are going to be counted a week later or two weeks later," Trump said at a rally in North Carolina, even though results on election night are not official and the Electoral College does not meet until mid-December.

Trump has largely sued in federal court, and so far has lost some significant challenges to absentee voting, especially in recent weeks. Progressive civil rights groups and Democrats, on the other hand, have sued in both federal courts and state courts, which so far appear to be more willing to take an active role in interpreting how a state should vote.

Rebecca Green, a law professor at William and Mary, said Ginsburg's death will make it more challenging for Chief Justice John Roberts to navigate the politics surrounding the court, which has seen him side with the court's four liberal justices in several high-profile decisions.

"The chief justice is very conscious of keeping the court above the political fray," Green said. "And in some ways, that is easier for him to accomplish when the court is relatively evenly divided. It may be more difficult for him to accomplish now that Justice Ginsburg is not on the court."

Justin Levitt, a Loyola Law School professor, said the shift in the court could certainly have an impact on future voting rights cases. "But I think it's extremely unlikely that the Court decides a case with a substantial impact on November 2020, in any way in which Justice Ginsburg's vote would be the tipping point," he said.

Ginsburg's voting rights dissents

There are two categories of election cases that the Supreme Court could take up: pre-election litigation related to voting rules, and post-election disputes over the counting of ballots.

In the pandemic-related voting cases, the justices have tended to side with the status quo. That's included ruling in favor of Republicans, like during the Wisconsin primary, but also siding with Democrats by not intervening in a Rhode Island case where the Republican National Committee sought to block the state's new absentee ballot rules.

As the election gets closer, the Supreme Court becomes less likely to make rulings that would change existing election rules, said Myrna Perez, the director of the Brennan Center's Voting Rights and Elections Program.

Perez said that while Ginsburg's death won't change the ideological makeup of the court, she still played an important role with her dissents to translate the issues to the public, such as her writing in the 2013 case striking down parts of the 1965 Voting Rights Act was "like throwing away your umbrella in a rainstorm because you are not getting wet."

"We can't underestimate her role," Perez said. "She had a way of writing her decisions so that they performed an active civic education. She was able to explain things in a way that people understood."

In the Supreme Court's 5-4 ruling in April blocking a lower court that extended the deadline for absentee ballots in the Wisconsin primary, Ginsburg wrote in a dissent the court's reasoning "boggles the mind."

"The court's order, I fear, will result in massive disenfranchisement," Ginsburg wrote.

A 4-4 high court split?

One argument Senate Republicans have made to push through a new justice before the election is that the court can't be split 4-4 if it has to make a ruling related to the presidential election.

"We cannot have Election Day come and go with a 4-4 Court. We risk a constitutional crisis if we do not have a 9-Justice Supreme Court, particularly when there is such a risk of a contested election," Sen. Ted Cruz, a Texas Republican, tweeted on Saturday.

Of course, that wasn't a concern for Republicans in 2016 when they blocked President Barack Obama's nominee, Merrick Garland, for eight months before the election, leaving the Supreme Court with eight justices. In that instance, a tie vote was more likely because the conservative- and liberal-leaning justices were evenly divided.

And court experts say the Supreme Court has a process in place for a 4-4 tie. In the case of a tie, the ruling would revert to the lower-court decision without setting a national precedent. The Supreme Court has already indicated with voting cases this year it's interested in deferring to state-level decision-making.

"At the end of the day, if there is a tie, it's not that the system breaks down," said Michael Morley, a law professor at Florida State University.

Still, Republicans are gaining momentum to get Trump's still-to-be-named nominee through the confirmation process before Election Day. If that does occur, and an election case reached the high court, a debate around whether she must recuse is likely, legal experts say.

"Refusing to recuse could imperil the legitimacy of the Court if it issues a 5-4 ruling in favor of the President on an outcome determinative election issue, a la Bush v. Gore, and that majority includes the newest appointee who had been confirmed only days earlier through a rushed and partisan process," said Franita Tolson, a CNN analyst and law professor at the University of Southern California.

Ultimately, however, any decision to recuse would lie with the new justice.

"The fact the nomination is made close to an election is more of an atmospheric -- it's not something that really affects legal analysis with recusal," Morley said.

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