[EL] more news and commentary 9/21/20

Mon Sep 21 09:18:03 PDT 2020

I have to say, I don't see any reasonable basis on which a Justice would have to recuse from a case regarding the election outcome solely because of the circumstances of her confirmation process.  (And I say that as someone who is already on record as opposing the confirmation of a new Justice until we have a new president or a re-elected president.)  But I agree with Rick's point that the likelihood of the election being decided by the Supreme Court is very low.  It's also probably not as likely that the Court would split 4-4, even if Justice Ginsburg is not replaced and the Court has to rule on the election outcome, as some may presume.

Robert Kelner

Covington & Burling LLP
One CityCenter, 850 Tenth Street, NW
Washington, DC 20001-4956
T +1 202 662 5503 | rkelner at cov.com
www.cov.com

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From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Pamela S Karlan
Sent: Monday, September 21, 2020 11:58 AM
To: Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] more news and commentary 9/21/20

[EXTERNAL]
Moreover, for a Justice just pushed through onto the Court to then cast the deciding vote in a case that determines whether Trump stays or goes would inflict a huge wound on the Court's credibility.  And that raises the question whether that Justice would feel the new to recuse himself or herself precisely for that reason, leaving the Court at 4-4 anyway.

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Co-Director, Supreme Court Litigation Clinic

Stanford Law School

karlan at stanford.edu<mailto:karlan at stanford.edu>

650-725-4851

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Sent: Monday, September 21, 2020 8:26 AM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] more news and commentary 9/21/20

The Chances of a 4-4 Supreme Court Split on Election Issues is Not a Reason to Rush a Supreme Court Confirmation; It's a Reason to Wait to Confirm a Justice<https://electionlawblog.org/?p=115503>

Posted on September 21, 2020 8:20 am<https://electionlawblog.org/?p=115503> by Rick Hasen<https://electionlawblog.org/?author=3>

Within minutes of the announcement of Justice Ginsburg's death, we started seeing the argument<https://twitter.com/rickhasen/status/1307116158668111872?s=20> advanced <https://twitter.com/jonward11/status/1307140984778698753?s=20> that a Supreme Court confirmation needs to be rushed so that a Justice is in place before the election, so as to break a potential 4-4 tie on an 8-Justice Supreme Court. President Trump made the point on "Fox & Friends" this morning<https://politicalwire.com/2020/09/21/trump-supreme-court-pick-wont-come-until-weekend/>. The argument is nonsense.

To begin with, the chances of an election issue making it to the Supreme Court and being decisive like Bush v. Gore remain small. As I explain here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3694142>, just speaking mathematically, the odds are against an election close
enough to go into overtime in a state crucial for the electoral college outcome. (Pre-election disputes are much more likely to get to the Court over the next few weeks, before any Justice can be confirmed.)

But suppose such a challenge does get to the Supreme Court. A 4-4 split is unlikely. Unlike the situation when Justice Scalia died and the Court was divided 4-4 along ideological lines, the current Supreme Court is divided 5-3 along conservative-liberal lines, with conservative Justices taking a narrow view of voting rights (even during the pandemic) and liberals taking a broader view. I traced that trend in this recent paper<https://doi.org/10.1089/elj.2020.0646> on voting rights during the pandemic. So a tie is unlikely if the Court does its usual split.

Well suppose that Chief Justice Roberts<https://twitter.com/MikeSacksEsq/status/1307117702776053761?s=20> is wobbly<https://twitter.com/jessewegman/status/1307116356702285828?s=20> on a particular post-election issue before the Court, because he cares about the institutional legitimacy of the Court. That could lead to a 4-4 tie.

An initial 4-4 tie on a post-election issue could be a good thing as it could lead to compromise. We saw the Court<https://www.annualreviews.org/doi/abs/10.1146/annurev-polisci-051317-125141> reach more compromises during the period after Justice Scalia's death as an 8-Justice Court. Compromise would be a good thing given the kind of national tumult a Supreme Court decision affecting the 2020 election could bring.

Even if the Justices could not compromise, a 4-4 split leaves a lower court decision in place, and so it is not as though we would fail to have a tie-breaker. And Congress is the ultimate judge of election winners as it decides controversies over electoral college votes. It is not clear (just as it was not clear in 2000, during Bush v. Gore) that it was more legitimate for the Supreme Court to decide these issues than Congress.

Look: there's not enough time to do a full vetting, hearing, and deliberation in Congress. As Manu Raju wrote<https://twitter.com/mkraju/status/1308016416952643584?s=20>: "There will only be 39 or 38 days before the election if Trump names the pick on Friday/Saturday as he just said. That would be extremely fast for a confirmation process, which typically takes 2-3 months. Suggests a lame-duck confirmation vote is more likely. "

Even putting aside the merits of considering a Supreme Court nomination in the period so close to the election (or in the lame duck period after), the 4-4 tie argument is a weak one and not at all a reason to rush the nomination from its ordinary process.

[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115503&title=The%20Chances%20of%20a%204-4%20Supreme%20Court%20Split%20on%20Election%20Issues%20is%20Not%20a%20Reason%20to%20Rush%20a%20Supreme%20Court%20Confirmation%3B%20It%E2%80%99s%20a%20Reason%20to%20Wait%20to%20Confirm%20a%20Justice>

Posted in Supreme Court<https://electionlawblog.org/?cat=29>

"If You Wait Until Election Day to Vote, You're Already Too Late"<https://electionlawblog.org/?p=115501>

Posted on September 21, 2020 7:38 am<https://electionlawblog.org/?p=115501> by Rick Hasen<https://electionlawblog.org/?author=3>

Elie Mystal <https://www.thenation.com/article/politics/election-vote-early/> for The Nation.

[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115501&title=%E2%80%9CIf%20You%20Wait%20Until%20Election%20Day%20to%20Vote%2C%20You%E2%80%99re%20Already%20Too%20Late%E2%80%9D>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>

"Anticipating hundreds of thousands of mail-in ballots, Philadelphia election official Al Schmidt urges Americans for patience in November: 'You will not know the outcome on election night.'"<https://electionlawblog.org/?p=115499>

Posted on September 21, 2020 7:36 am<https://electionlawblog.org/?p=115499> by Rick Hasen<https://electionlawblog.org/?author=3>

"60 Minutes" reports.<https://twitter.com/60Minutes/status/1307834236188139526>

[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115499&title=%E2%80%9CAnticipating%20hundreds%20of%20thousands%20of%20mail-in%20ballots%2C%20Philadelphia%20election%20official%20Al%20Schmidt%20urges%20Americans%20for%20patience%20in%20November%3A%20%E2%80%98You%20will%20not%20know%20the%20outcome%20on%20election%20night.%27%E2%80%9D>

Posted in election administration<https://electionlawblog.org/?cat=18>

"The Nightmare Scenario That Keeps Election Lawyers Up At Night - And Could Hand Trump A Second Term"<https://electionlawblog.org/?p=115497>

Posted on September 21, 2020 7:32 am<https://electionlawblog.org/?p=115497> by Rick Hasen<https://electionlawblog.org/?author=3>

Paul Blumenthal<https://www.huffpost.com/entry/election-2020-nightmare_n_5f65163fc5b6de79b674a9d5?o3j> for HuffPost.

[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115497&title=%E2%80%9CThe%20Nightmare%20Scenario%20That%20Keeps%20Election%20Lawyers%20Up%20At%20Night%20%E2%80%94%20And%20Could%20Hand%20Trump%20A%20Second%20Term%E2%80%9D>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>

"The Legal Fight Awaiting Us After the Election: The aftermath of November's vote has the potential to make 2000 look like a mere skirmish."<https://electionlawblog.org/?p=115495>

Posted on September 21, 2020 7:26 am<https://electionlawblog.org/?p=115495> by Rick Hasen<https://electionlawblog.org/?author=3>

Jeffrey Toobin<https://www.newyorker.com/magazine/2020/09/28/the-legal-fight-awaiting-us-after-the-election> in The New Yorker.

[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D115495&title=%E2%80%9CThe%20Legal%20Fight%20Awaiting%20Us%20After%20the%20Election%3A%20The%20aftermath%20of%20November%E2%80%99s%20vote%20has%20the%20potential%20to%20make%202000%20look%20like%20a%20mere%20skirmish.%E2%80%9D>

Posted in Uncategorized<https://electionlawblog.org/?cat=1>

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

401 E. Peltason Dr., Suite 1000

Irvine, CA 92697-8000

949.824.3072 - office

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org<http://electionlawblog.org/>

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