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Consider a hypothetical scenario in which there are eight Supreme Court justices at the time election results are being determined (ie, Ruth Bader Ginsburg’s seat has not been filled and there is no possibility for a tie-breaker vote). In the event that election results are contested (not unlike Bush vs Gore in 2000), what happens? Specifically, what happens if there is a 4-4 tie in the Supreme Court?

divibisan
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    Wouldn't the two (or three, if his nominee is confirmed) Justices appointed by Trump be forced to recuse themselves? – jamesqf Sep 26 '20 at 04:05
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    @jamesqf Supreme court justices are never required to recuse themselves. – Matt Sep 26 '20 at 14:30
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    @Matt: I meant as a matter of judicial ethics, not a legal requirement. – jamesqf Sep 26 '20 at 16:28
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    @jamesqf They are allowed to determine their own judicial ethics standards. However, given that they have lifetime appointments they have no reason to curry Trump's favor. Neither Trump nor Biden can fire them for "disloyalty". – emory Sep 26 '20 at 18:43
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    @emory: First of all, it's about appearances. Would they want to go down in history as having sold out to Trump? Second, there's that "good behavior" clause in the Constitution. Not recusing themselves could easily be seen as bad behavior, and given Democratic majorities in House & Senate, could conceivably be grounds for impeachment. As indeed, having Trump take a second term via such a tainted Supreme Court decision could be additional grounds for his impeachment. – jamesqf Sep 27 '20 at 04:34
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    @jamesqf The website for Congress discusses the ambiguity of the "Good Behavior" clause in regards to your claim. However, clicking through the links in the footnotes reveals this page, which states:

    ... the modern view of Congress appears to be that "good behavior" does not establish an independent standard for impeachable conduct.

    ... removing a federal judge requires impeachment and conviction for a high crime or misdemeanor.

     –  Sep 27 '20 at 04:46
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    @jamesqf Conviction in an impeachment requires 67 votes. Precisely so that politically-motivated impeachments such as what you describe have approximately zero chance of success. It has always been left up to the justices whether or not to recuse themselves on a case. As far as I'm aware, no one has ever been impeached for that and certainly no justice has ever been convicted for it. Kagan didn't recuse herself from the PPACA cases despite the fact that she actually helped craft the defense's case when she was part of the Obama administration's legal council. She's still very much on the court – reirab Sep 27 '20 at 05:04
  • (And that's merely a high-profile relatively-recent example. There are plenty of examples of both Republican-appointed and Democrat-appointed justices that have not recused themselves in cases to which they had some relation and it's completely normal for them to not recuse themselves in cases wherein the administration that appointed them is a party... that happens frequently for almost every justice until the next President takes office.) – reirab Sep 27 '20 at 05:07
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    @jamesqf (1) I do not think they would mind at all. (2) Many of them have gotten away with a lot worse things. Trump's example shows us that impeachment is an ineffective discipline process. – emory Sep 27 '20 at 13:01
  • @reirab: But such an impeachment would not be politically motivated (as far as anything is not politically motivated). It would be motivated by an obvious ethics violation. – jamesqf Sep 28 '20 at 17:07
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    @jamesqf No, that would clearly be a politically-motivated impeachment. Ruling on a case involving the President who appointed you is not an ethics violation of any sort, obvious or otherwise, and is indeed common practice of almost every justice ever appointed to the court. I'm not aware of any case in which a justice has recused themselves on that ground. It is definitely not legitimate grounds for an impeachment. – reirab Sep 28 '20 at 17:12

5 Answers5

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Most cases never go straight to the Supreme Court; it only has original jurisdiction over a very small subset of cases, as described in the US Constitution. Outside of those areas, they are always heard by at least one other court first before being appealed to the Supreme Court.

If there is a tie in the Supreme Court, the ruling of the lower court stands, whatever that ruling was.

Source: US Courts

nick012000
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Joe C
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    The Supreme Court has original jurisdiction for a very few types of cases – sumelic Sep 25 '20 at 20:53
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    Clarification: Election cases never go straight to the SC. – Damila Sep 26 '20 at 02:27
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    Begs the question: can th lower courts happen to be tied, too? – Alexander Sep 27 '20 at 00:06
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    @Alexander-ReinstateMonica, No. The original ruling will be by a single judge. This can be appealed to the appropriate circuit court, which will hear it with a three-judge panel. This can then be appealed to an en banc review by the entire set of judges in the appropriate circuit court, which could produce a tie, but since it's already an appeal, a tie would mean the original judge's ruling would stand. (And en banc reviews are rare: more often, a circuit court ruling is appealed directly to the Supreme Court.) – Mark Sep 27 '20 at 02:29
  • @Mark: Can you construct a scenario where the election has a circuit split? – Joshua Sep 28 '20 at 15:13
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    @Joshua, the US doesn't have a national presidential election, it has 51 state presidential elections. It's unlikely that any issue would cross state lines, and without two circuits ruling on the same issue, there can't be a circuit split. – Mark Sep 28 '20 at 20:14
  • This doesn't really get to the meat of the problem. If the courts in general don't invalidate votes in the Electoral College, then whoever wins that vote, wins the presidency. The only interesting question is "what happens when the Electoral College vote is tied". – matt_black Sep 29 '20 at 13:21
  • @matt_black, if the Electoral College is tied, then the election goes to the House of Representatives to decide. – Mark Sep 29 '20 at 21:20
  • @Mark which is why this answer doesn’t really deal with the actual question – matt_black Sep 29 '20 at 21:23
  • @matt_black, the question mentions Bush v. Gore, which was an appeal of Gore v. Harris. The electoral college outcome prior to that decision was 271 Bush/267 Gore; if the US Supreme Court had split 4/4, the Florida Supreme Court's ruling that the recount should continue would have stood, and Florida's electoral votes might have been re-allocated to Gore. – Mark Sep 29 '20 at 21:39
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The decision of the lower court stands. The Supreme court acts as the final court of appeal in such matters (it is not a dispute between states, for example). Therefore a lower court will already have made a judgement, and it is has been appealed to the Supreme court. For the appeal to succeed, there must be a majority in the court. If the court splits 4-4 then the decision of the lower court stands.

James K
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    Wikipedia may be a secondary reference for this to happen, yet explicitly includes the even division of the court as status quo ante with United States v Alcoa as the (so far) sole example. –  Sep 27 '20 at 12:03
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    @Buttonwood there have been dozens of cases in which the supreme court was equally divided, and that's not what happened with Alcoa. In that case, there were so many justices that had to recuse themselves that the court did not have a quorum to consider the case. (Today a quorum is six justices, but I don't know what the number was in those days.) – phoog Sep 29 '20 at 03:22
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I attempted to construct a scenario where election law breaks down because the supreme court can't issue a ruling. Normally, the result would be either the lower court stands or status quo ante; but we can avoid these cases.

If we have a broad-scope issue on a presidential election, so that two cases can begin at the same time in different appellate circuits, and the case is novel enough that we can't provide any meaningful status quo ante, then the fallout is going to be very bad. The consequence of an unresolved circuit split is the law itself is divided depending on which district. For a congressional election, this is not a major problem as each congressional district is its own election.

It would appear the same is true of a presidential election as well because of the electoral college. However, this is not necessarily the case as there are are federal laws that would apply directly to any candidate. Should one of them be breached, bad things happen.

It is my hypothesis that should the supreme court fail, one of two things would happen. Either the House would appoint a special panel of judges to hear the case, or the house would decide the result of the election as though it were the case there was no majority of votes in the electoral college. The House does in fact have the power to reject the results of the electoral college on suspicion of tampering, and the panel of judges has some precedent. https://en.wikipedia.org/wiki/Electoral_Commission_(United_States)

Joshua
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  • All the issues would be at the state level so they would all likely be in the same circuit that the capital of the state is in. – Joe W Sep 28 '20 at 15:58
  • @JoeW: Are you sure you don't mean "most". An eligibility case is going to be a federal case. – Joshua Sep 28 '20 at 16:27
  • Eligibility is a state issue though. The federal system has no say on election and ballot requirements for any state as that is all controlled by the states. While the lawsuits may go through the federal court system it will all be based in the districts that the states are in and will likely center around the capital as that is where the decisions are all made. – Joe W Sep 28 '20 at 16:29
  • @JoeW: I'm pretty sure that either an R or a D candidate not appearing on the ballot in the general election in a swing state is going to lead to completely unrelated states wanting to void the election. – Joshua Sep 28 '20 at 16:32
  • That is not what I am saying, any election related issue is controlled at the state level. You can't file a lawsuit related to an election issue in Florida in a federal court in California for example. All election lawsuits would be handled in a district court in Florida until it gets appealed up the chain. – Joe W Sep 28 '20 at 16:34
  • @JoeW Is it possible for separate lawsuits to be filed by different states simultaneously, each ruling in favor of the opposite party (ie, states i rule D and states j rule R)? I assume it’s unlikely, but maybe there is at least one combination of states i and j such that the electoral votes “cancel out” ...? –  Sep 28 '20 at 18:38
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    A lawsuit in one state won't likely impact a lawsuit in a second state as each state controls their own election from start to finish. – Joe W Sep 28 '20 at 18:41
  • @JoeW I am not sure I follow your logic. If states i and j file independent lawsuits, then is it possible that the net result of the lawsuits is no (or negligible) change to the total electoral vote count? If escalated, would the Supreme Court consider appeals by all states (one case) collectively or by each state individually (i * j cases)? If the former and if the Supreme Court is tied, then which lower court ruling (or state) stands? If the latter, what happens if rulings from states i balance out the rulings from states j? –  Sep 28 '20 at 19:36
  • In case it makes the question clear, Wisconsin and Minnesota are each worth 10 points electorally; both were won by margins less than 4% in the 2016 election. If both states file appeals in this election, then what might the edge-cases look like? –  Sep 28 '20 at 19:51
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    The problem is if states i and j file independent lawsuits the ruling in the lawsuit from one state isn't likely going to have any impact on the lawsuit from the other state as the laws and reasoning behind each lawsuit will be different based on the laws and rules in each state. As for your question on Wisconsin and Minnesota you would have to look at the laws in each state individually. – Joe W Sep 28 '20 at 19:54
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    @JoeW no state is split across multiple circuits. Every state's capital is in the same circuit as all the rest of the state. Furthermore, cases could arise in any judicial district, regardless of whether or not the state's capital is in the district. – phoog Sep 29 '20 at 03:28
  • @JoeW correction to my previous comment: two judicial districts include territory outside the district's nominal state, but in both cases the territory is (I believe) uninhabited. The district of Montana, part of the 10th circuit, has jurisdiction over Yellowstone National Park, including the portions in Montana and Idaho (which are otherwise in the 9th circuit). I don't know whether there are any Montana or Idaho voting precincts in the park, but I doubt it. – phoog Sep 29 '20 at 15:31
  • "If we have a broad-scope issue on a presidential election, so that two cases can begin at the same time in different appellate circuits" Can't happen. At most, you could have a conflict between a state supreme court, and a U.S. Circuit Court of Appeals reviewing a U.S. District Court ruling in the same state. How those get worked out is quite case specific. Intractable disputes not resolved by SCOTUS would ultimately be resolved by the U.S. House of Representatives. – ohwilleke Sep 29 '20 at 20:38
  • @ohwilleke: "Intractable disputes not resolved by SCOTUS would ultimately be resolved by the U.S. House of Representatives." I certainly hope so. See last paragraph. – Joshua Sep 29 '20 at 20:41
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    "If escalated, would the Supreme Court consider appeals by all states (one case) collectively or by each state individually (i * j cases)? " It would rule on each state individually. It might do so in one opinion, but they are separate decisions, not one case. – ohwilleke Sep 29 '20 at 20:41
  • "Either the House would appoint a special panel of judges to hear the case, or the house would decide the result of the election as though it were the case there was no majority of votes in the electoral college." The House doesn't need to appoint anyone. It can rule on which electoral votes to count and how many are cast for each candidate by means different from those that apply when no candidate has a majority. They also decide the threshold question of how many electoral votes were cast for each candidate and can disregard state certificates if it wishes in doing so. – ohwilleke Sep 29 '20 at 20:43
  • @ohwilleke: The one time they needed to actually decide how to count some electoral college votes due to a messed up election (to be fair this particular mess-up could have been resolved locally), they put in a panel of judges to do it. – Joshua Sep 29 '20 at 20:45
  • @Joshu They aren't required or prompted to do so. That was a one off political resolution. But the House could flip a coin if it wanted to. Appointing judges isn't part of the process and the House is free to ignore what judges recommend. – ohwilleke Sep 29 '20 at 20:46
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Presidential elections are governed by Article II, Section 1 of the U.S. Constitution as amended, which states in the pertinent part (prior to amendment):

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

A portion of this was in turn superseded by part of the XXth Amendment which states in the pertinent parts:

Section 1.

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The prevailing interpretation of these constitutional provision is that the U.S. House of Representatives (or arguably, the Congress, in joint session) has non-justiciable (i.e. not court reviewable) authority to decide which of the ballots sent to the President of the Senate shall be counted in cases in which there is any doubt.

This interpretation is widely accepted because the same doctrine applies to resolution of disputed House and Senate elections were are resolved politically by the members of the respective houses in something that has come up and been litigated numerous times.

Each of the 50 states conducts its election for electoral college delegates independently of every other state (and the District of Columbia also conducts an election for electoral college delegates). There are 51 distinct issues (really 57 since there are multiple electoral college delegate contests in Maine and Nebraska).

No later than the date upon which electoral voters are cast by members of the electoral college (in early December), the Courts no longer have a say in the matter, at least not a binding one.

It is conceivable that a state court appealed on up to the state supreme court and a U.S. District Court appealed on up to the U.S. Court of Appeal for the circuit containing the state in question could reach mutually contradictory orders for state election officials, and that a tied U.S. Supreme Court could affirm both the U.S. Court of Appeal ruling and the State Supreme Court ruling, with one ruling implying one slate of electoral college delegates and another ruling implying another slate of electoral college delegates, in the roughly one month between the November 3, 2020 election and the date that electoral voters are cast in state capitols.

In that situation, most likely both slates of electoral college delegates could cast their votes at the appointed time and send them to the President of the Senate. The House could then decision which of the slates of electoral college delegates to count, if that was necessary to determine which Presidential candidate and which Vice Presidential candidate win. If the disputed electoral college delegates don't change the outcome, then the House was be honor bound the declare the correct winner anyway.

In the counting process, it doesn't matter what other court rulings said about which electoral votes should be counted, the decision of Congress while voting prevails. It doesn't have to delegate the decision to any other body or use any particular process to do this.

ohwilleke
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Simple summary

  • Whoever wins the Electoral College is president unless the vote tally is challenged
  • If the tally is challenged, then the tally after the court decision decides the winner
  • If the courts have not changed the tally (eg lower courts did not and supreme court is tied or doesn't overturn the decision) then the winner is president
  • If the tally is tied after all court action then the House of Representatives chooses the president

The constitution already defines the rules for what happens if the electoral college vote does not produce a clear winner (presumably because of a tie).

If there were a challenge to the electoral college vote (presumably invalidating some votes and breaking a tie) then the constitution would apply and the College winner would be president. But, and this only makes sense if the college is tied and the Supreme Court did not break the tie (possibly because of a tied judgement there) then the rules are clear.

The relevant section of the 12th amendment states (with the part relevant to the situation where the Electoral College being unclear in italics):

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote

What this means is that–if the Electoral College result is tied–the House of Representatives gets to choose the President but the tally is counted with one vote per state where the vote is determined by the majority of representatives from each state.

That's pretty convoluted but not something a court can overthrow. So, if the Supremes don't invalidate a tied Electoral College, then that is what will happen.

matt_black
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  • The bullet points do not describe the technical process very accurately, largely because they gloss over the details of "winning the electoral college." Each state appoints electors, based on the prepare vote, and that is the part that is subject to court review. Even the electoral college vote is conducted as 51 separate votes, the outcome of each being certified to congress. That part might also be subject to court action. But the tallying of the certified electoral votes falls to congress, and is probably not reviewable by the courts. – phoog Sep 29 '20 at 15:18
  • Also the twelfth amendment does not specify "the vote is determined by the majority of representatives from each state"; it says nothing about how each state delegation is to determine its vote. Furthermore, a tie in the electoral college isn't necessary for a judicial decision to have the potential to change the outcome of an election, as we saw in 2000. – phoog Sep 29 '20 at 15:19
  • @phoog The first two bullets completely cover all the details of winning the electoral college, including Florida in 2000 where they stopped a recount that might have changed the Florida tally in the electoral college. That leaves very few circumstances where there is still ambiguity which is what the question was about. The complex details about how courts might challenge state results are irrelevant to this question. – matt_black Sep 29 '20 at 15:28
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    The answer is vague and verging on incorrect. The House of Representatives and not the courts, is the ultimate judge of which electoral voters were lawfully cast, and how to count those electoral votes. Those are non-justiciable issues. Courts only intervene in the process of who a state election system declares to get electoral college delegates in one or more of the 57 contests (some states have multiple ones by Congressional district), those decisions don't bind the House, and generally the rulings only indirectly affect the outcome via election practices that influence the count. – ohwilleke Sep 29 '20 at 20:32
  • @ohwilleke But the question asked isn't about the general process for normal elections. It is about the unlikely scenario where the courts have become involved but can't reach a conclusion. You appear to be saying I haven't described the process before we ever get to that scenario (bullet point 1 in my summary). I'm not trying to, that isn't the question. – matt_black Sep 29 '20 at 20:40
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    "If the tally is challenged, then the tally after the court decision decides the winner" This assertion is not correct as a matter of law even though it often works out that way. – ohwilleke Sep 29 '20 at 20:45
  • @ohwilleke since this isn’t the focus of the question, I thought this was a simple summary (and a fairly accurate description of what happened in Florida with Bush vs Gore). If you would describe that differently, I’ll change my bullets. – matt_black Sep 29 '20 at 20:52
  • "he first two bullets completely cover all the details of winning the electoral college, including Florida in 2000 where they stopped a recount that might have changed the Florida tally in the electoral college": Bush v. Gore was decided before the electoral college votes were cast, let alone tallied. – phoog Sep 30 '20 at 02:00
  • @phoog Again, how is that relevant to this question? You are arguing that I don't describe the correct sequence of getting to a full tally, but the question assumes the outcome of the electoral college is ambiguous. yes, the Florida situation was a challenge to the result before the official tally but that is irrelevant to the core of the question. – matt_black Sep 30 '20 at 10:52
  • @matt_black In explaining why it's not relevant to the question, you've instead explained why it is relevant to the question. Bush v. Gore is not relevant because in Bush v. Gore the outcome of the electoral college was never ambiguous: court challenges were all resolved before the electoral college met. For the EC outcome to be ambiguous, there have to be legal questions that are not resolved before the states certify the electoral results to Congress, or perhaps a failure of some state or states to certify its results. Only then does congress get involved. – phoog Oct 22 '20 at 20:40
  • In other words, once someone has won the electoral college it is too late to challenge the election results, except perhaps by appealing to Congress, which explains why the decision in Bush v. Gore came just days before the electoral college vote. – phoog Oct 22 '20 at 20:41
  • @phoog So if the supremes had been tied in Bush vs Gore what would have happened? We don't know because the result depended on continuing recounts. The point is that, yes if the college count is not changed by the supreme court (because they are tied) then the winner of the count is president (bullet 3). If the count is tied AND the supremes are 4-4, then congress decides (bullet 4). Those are the only two circumstances where the 4-4 tie matters. – matt_black Oct 22 '20 at 20:49
  • If the SC had been tied then lower court orders would have stood. Those orders allowing the count to continue would stand and those requiring it to stop would stand. If Florida managed to field a slate of electors, they would vote and certify the votes to congress. If not, they wouldn't. Congress would then have counted the votes that were cast and declared the winner based on the majority, whether Florida's votes were included or not. The college count itself was never before the supreme court, so they never could have changed it. The college count didn't even exist until days later. – phoog Oct 22 '20 at 20:57