It’s the scenario that keeps partisan operatives and lawyers awake at night: Donald Trump and Hillary Clinton end Election Day deadlocked with key states in a recount, and a short-handed Supreme Court can’t resolve it because the eight justices split down the middle. Politico reports. In such a case, a lower-court ruling would probably be left to stand. With Trump and Clinton concluding one of the most toxic presidential campaigns in modern history, amid charges of foreign influence and “rigged” procedures, the lack of a fully functioning Supreme Court to act as a legal backstop is worrisome to operatives on both sides. “There’s a hell of a scary thought,” said Jim Manley, a longtime Democratic staffer. “I’m not sure the country can handle that right now.” Trevor Potter, a Republican lawyer and former chairman of the Federal Election Commission, said, “This would not be a good moment for the Supreme Court to have to deal with a partisan dispute.”
The Supreme Court has been called upon to resolve highly charged partisan disputes in just the last few days. Yesterday, a unanimous court dismissed a Democratic plea to reinstate an injunction that would have blocked Trump’s campaign from taking actions that would allegedly intimidate voters in Ohio. That ruling came after a Saturday order reinstating an Arizona law banning the collection of independent ballots. Both rulings favored Republicans. A lay-low approach may not work so easily if there are legal disputes stemming from today’s voting, especially on issues involving recounts or other issues where the overall results are close and battleground states like Florida or North Carolina are still up for grabs. “It does seem if Trump loses there’s going to be challenges to the voting results. When you spend all your time saying the results are rigged you’ve got to expect there are lawsuits challenging results,” said Adam Winkler, a UCLA constitutional law professor.