If President Donald Trump, a Republican, is able to install a conservative replacement in time, the new justice could help resolve any dispute in favor of the president – an outcome that would deepen the country’s partisan divide and threaten the court’s reputation as an independent arbiter, some legal experts said.
“People’s views of Bush v. Gore would be tame by comparison,” said Joshua Douglas, a University of Kentucky law professor, referring to the controversial 2000 Supreme Court decision that effectively handed George W. Bush a victory. “It’s almost unimaginable what the reaction would be.”
Before Ginsburg’s death, the court had a 5-4 conservative majority, so even if her seat were to remain vacant, Democrats would need two conservative votes to avoid losing or a 4-4 tie in any post-election case.
The 2020 campaign has already seen more election-related lawsuits than any other in recent memory, said Dale Ho, who runs the voting rights project at the American Civil Liberties Union. Many of the cases are focused on whether to expand voting options amid the coronavirus pandemic, which has prompted millions of Americans to request mail-in ballots.
Ginsburg’s death has unleashed a heated political battle over whether Trump should replace her so close to the election, with early voting already underway in some states.
A repeat of the situation in 2000 when the election came down to a few hundred votes in Florida out of 100 million cast nationwide, remains unlikely, experts said.
Nevertheless, Trump and his Democratic challenger, Joe Biden, have assembled sprawling legal teams to prepare for potential post-election court challenges. Trump has spent months asserting without evidence that the election will be “rigged” due to mail-in voting, and Biden has said he believes Trump will inevitably dispute the results.
Fueling fear among Democrats, the Supreme Court’s conservative bloc has already ruled against them in several voting rights cases this year.
In April, a 5-4 decision by the bloc reversed a federal judge’s decision to extend the deadline for submitting absentee ballots during Wisconsin’s primary election. That ruling drew a scathing dissent from Ginsburg, who warned it would cause “massive disenfranchisement.”
The court has also rejected emergency bids to expand voting options in Texas and Alabama, while declining to intervene in a Florida case over whether hundreds of thousands of former felons should be allowed to vote before paying fines.
ROBERTS ‘DOESN’T WANT TO TOUCH THIS’
If a post-election case winds up before the Supreme Court and Ginsburg’s replacement is not yet in place, Democrats would likely aim to persuade Chief Justice John Roberts, who is seen as the court’s swing vote, to rule in their favor.
“I think just like everybody else in the country, Justice Roberts is really, really hoping the election isn’t close,” said Sylvia Albert, the director of voting and elections at the good government nonprofit Common Cause. “He does not want to touch this with a 10-foot pole.”
Roberts sided with the court’s liberal minority in several key cases earlier this year and has shown a desire to avoid turning the court into a partisan institution.
If he were to join the three remaining liberals, that would create a 4-4 split, which would leave in place any lower court decision but could undermine public confidence in the Supreme Court. Republican Senator Ted Cruz said on Fox News on Friday that Trump needed to replace Ginsburg to forestall the possibility of a deadlocked court and a “constitutional crisis.”
In 2016 Cruz was among Republican senators who refused to let Democratic President Barack Obama fill a court vacancy in an election year, leaving the court with eight members. Trump’s nominee Neil Gorsuch filled that seat the following year.
If a dispute around the 2020 election were to reach the Supreme Court and Ginsburg’s seat had already been filled by a Trump nominee, a ruling by the conservative majority that ensured Trump’s victory would be hard for many Americans to swallow, said Paul Smith, a Georgetown University law professor and vice president at the Campaign Legal Center, a nonprofit voter advocacy group.
“It would be terrible for the country if you have at the same time a president who is viewed as illegitimate by a large percentage of the country and a court that is seen as complicit,” said Smith.
Reporting by Joseph Ax; Editing by Noeleen Walder and Daniel Wallis @
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