How the Senate could safeguard the election

Merrick Garland Supreme Court nomination emotional_00000000
Merrick Garland Supreme Court nomination emotional_00000000

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Story highlights

  • Joshua A. Douglas: Senate should vote on Merrick Garland's nomination to high court as soon as possible
  • Key election rulings could be deadlocked if Supreme Court lacks a ninth justice, he says

Joshua A. Douglas, a professor at the University of Kentucky College of Law specializing in election law, focuses on the constitutional right to vote, election administration and post-election disputes. He is the co-editor of a new book, "Election Law Stories." Follow him on Twitter @JoshuaADouglas. The opinions expressed in this commentary are his.

(CNN)The Senate's failure to act on the US Supreme Court vacancy is already causing havoc for this year's election. It is time for the Senate to give Judge Merrick Garland -- whom President Barack Obama nominated way back in March -- a vote. Doing so might just save the election this November.

In the past few weeks, courts around the country have issued rulings on voter ID laws. A federal court in Texas required "softening" of that state's strict photo ID requirement by making the state accept other forms of identification for voters who cannot easily obtain a state-mandated photo ID. But a different federal appeals court reversed a trial court's similar softening of Wisconsin's law, throwing out a lower court ruling that would allow voters to sign an affidavit to attest to their identity. Courts in North Carolina and North Dakota have also effectively invalidated those state's voter ID requirements. Appeals are pending.
Joshua A. Douglas
Meanwhile, litigation is ongoing on other important election law issues, such as early voting in Ohio and Wisconsin, voter roll purges in Ohio, gerrymandering in Maryland, monitoring long lines in Arizona and voter registration in Kansas.
    Yet the highest court in the land is unlikely to weigh in on these controversies or resolve any conflicts between the courts. And even if it does, there is a good chance that the court will deadlock 4-4.
    It takes a majority of the court to issue a binding ruling. After Justice Antonin Scalia died in February, the court was left with eight members -- four who tend to be more liberal and four who tend to be conservative. If the justices stick with their ideological predilections in an appeal of one of these cases, then the court will tie 4-4 (if the justices even agree to hear the case at all). A tie essentially affirms the lower court's decision, but without any binding effect for any future cases. Put differently, the court will say nothing, and the lower court's ruling will stand.
    The result will be a patchwork of varying laws across the country on Election Day. This variation is already occurring: The federal appeals court in Texas required the state to ease up on Texas' ID law; the federal appeals court in Wisconsin required no similar exceptions. The Supreme Court will almost definitely not resolve the conflict between the cases.
    That is problematic for ensuring a well-functioning election. Inconsistent decisions and differing laws create difficulties for election administrators and breed voter confusion.
    Of course, the laws themselves vary slightly. But the fundamentals are the same: States are imposing strict voter ID requirements in the name of voter fraud, albeit without any proof whatsoever that in-person impersonation occurs to any significant degree in any election. The laws will likely disenfranchise valid voters -- at least in their strictest application before any judicial softening -- without providing any fraud-reducing benefit.
    It would better for the Supreme Court to say, once and for all, that to impose a barrier to the right to vote, a state must prove that the law will have some real-world effects in fixing an actual problem. Or, for the sake of finality, the court should provide the precise parameters under which a state may adopt a voter ID requirement. But saying nothing -- the likely outcome with an eight-member court -- helps no one.
    The problem will only worsen as the months go on. Key swing states, such as Ohio and Florida, are likely to see more litigation over their voting systems as the election nears.
    In 2012, the Supreme Court issued four orders within weeks of the election in key states, reversing certain lower court decisions to maintain the pre-arranged election apparatus. The principle of these cases seems to be that courts should not issue last-minute rulings that change the status quo.
    One of those decisions (on Ohio's cutback of early voting) was a 5-4 ruling. With only eight justices, however, there is no judicial backstop, no final say, from the institution that is supposed to have the final say on legal questions. This could produce uncertainty as the election nears, especially if partisan-minded legislators continue to enact election laws intending to help their side.
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    This problem could be calamitous. If we have another post-election dispute such as Bush v. Gore, then the court could deadlock 4-4. The result in Trump v. Clinton would then affirm whatever lower court heard the case -- likely a state supreme court. Most state supreme court justices are elected.
    Therefore, without a full bench on the US Supreme Court, the presidential election could come down to some elected judges in a swing state. That is no way to run a democracy. To be sure, many people view the Supreme Court's 5-4 decision in Bush v. Gore as incorrect, but at least we had a judicial body that covers the entire country resolve the lingering dispute. This helped to provide finality and certainty.
    This is not just an academic point. Donald Trump has strongly suggested he will not easily accept a defeat, raising the likelihood of a post-election challenge.
    The Senate should consider and vote on Garland's nomination to the Supreme Court as soon as possible and certainly before Election Day. It has been well over 150 days since Obama nominated Garland -- the longest wait of any Supreme Court nominee in history. This delay is not just concerning for the proper functioning of the Supreme Court and the rule of law. It is also problematic for the election as well.