What RBG's Death Could Mean For Election Litigation

By Cara Bayles
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Law360 (September 23, 2020, 9:22 PM EDT) -- Filling Justice Ruth Bader Ginsburg's U.S. Supreme Court seat has become a political rallying cry as the presidential election looms, but her death could also help determine that election, should November's results spur a battle that winds up before the high court.

Justice Ginsburg was one of the high court's staunchest liberals, and while her side was already outnumbered on the bench, without her the gap has widened. If the Senate succeeds in confirming her replacement before November, the split will be 6-3.

That could change the calculus for Joe Biden's campaign, according to Florida State University law professor Michael Morley, an expert in election emergencies and litigation. If the Democratic challenger is the one to sue over election results, he might avoid raising federal issues to keep the litigation out of the high court's jurisdiction.

"Democratic candidates might be reticent to have an election-related claim adjudicated by the court," he said. "They might tailor their claims to stick to state courts."

The 2020 presidential campaign is already being widely litigated, and election issues ended up in the Supreme Court several times last term, while Justice Ginsburg was still alive. The justices unanimously voted to uphold state laws barring "faithless electors" — Electoral College delegates who don't cast their votes for the candidate they're pledged to elect — and over Justice Ginsburg's objections, they found that Wisconsin couldn't extend the deadline to cast an absentee ballot in its primaries, though they occurred in April, while the state was under a coronavirus-fueled lockdown.

But the biggest fight may be yet to come, according to University of Southern California law professor Franita Tolson.

"There's going to be litigation on Election Day. There's going to be litigation after Election Day. They're going to sue until they can't sue no more," she said. "You often have people suing to keep the polls open later. You'll have lawsuits post-election about absentee ballots that have been rejected. There will be possible recounts. It's going to be litigious for the foreseeable future."

It's possible the election results won't be litigated if one candidate has a commanding, 60-vote lead in the Electoral College or is ahead by at least seven points in the swing states, according to Morley. But without a landslide victory, he said, expect the results to go to litigation.

"If the parties are close in electoral count and particularly within swing states, if they're within one or two points of each other in terms of the popular vote, then all bets are off," he said. "You will see all post-election avenues pursued."

If that happens, he said, given the ideological makeup of the court, Democrats will likely try to keep cases local and Republicans will try to raise constitutional issues — like equal protection, due process or even the Presidential Electors Clause — to get the case in front of the high court. With the loss of Justice Ginsburg, the Trump campaign could like its chances before the high court, where conservatives enjoy a majority, and at least two — and possibly three — of the justices will be Trump nominees.

The Trump campaign has spent more than $16 million on legal fees — an unprecedented amount. Biden has amassed a huge team of attorneys, including two former solicitors general — Donald Verrilli and Walter Dellinger — as well as Perkins Coie LLP's Marc Elias, who served as general counsel for the campaigns of John Kerry and Hillary Clinton.

President Donald Trump has told his supporters, "The only way we're going to lose this election is if the election is rigged," and he's claimed for months that mail-in voting — seen as a way to stem the spread of the coronavirus — is "inaccurate and fraudulent." When Nevada recently passed a law allowing for universal mail-in voting, Trump tweeted, "See you in court!" Keeping to his word, he sued over the change, but a federal judge on Monday tossed the suit, finding his campaign hadn't shown it would be hurt by the change.

The volume of litigation this year is unprecedented, as state leaders, voting rights groups and campaigns attempt to hash out state-by-state ground rules for conducting an election during a pandemic.

But campaigns have been wary of Election Day surprises — and building legal teams to deal with potential issues — for the last 20 years, since the 2000 presidential stand-off between Al Gore and George W. Bush went to the Supreme Court.

That litigation was sparked by close election results in Florida. Initial tallies showed Bush winning the state by a margin of less than half a percentage point, or 1,784 votes. That triggered a machine recount, which reduced the margin of victory to 327 votes.

When the Florida Supreme Court authorized a deadline extension for a recount in four Democratic-leaning counties, then ordered a statewide manual recount, Bush appealed to the Supreme Court.

In a 7-2 decision, the justices sided with the Bush campaign, finding that the recount plan violated the 14th Amendment because there was not a uniform statewide counting standard. Florida had used punch card-style ballots, and some of the holes voters perforated in their ballots still had part of the paper attached — the so-called "hanging chad" fiasco. Some counties were counting those ballots and others were not. That violated the Equal Protection Clause, the court found.

Two of the court's liberals — Justices Stephen Breyer and David Souter — agreed with that portion of the opinion. But only the court's five conservatives supported the part of the decision that gave Florida only a few hours to develop a uniform counting strategy and finish the recount. Under federal law, the state had to decide on its delegates six days before the Electoral College was to meet in person. That "safe harbor" deadline was hours after the opinion came down, and so by not granting an extension, the decision effectively ended the recount.

Jack Young, an attorney who worked on the Gore campaign's legal team leading up to the election and during its fallout, said he doubts any part of the decision set a precedent that could affect this year's results.

"The Supreme Court said, 'This decision only applies to the 2000 election.' That probably is right," he said. "There will be litigation, but it will be quite different from the facts that drove Bush v. Gore. You won't hear about chads, you'll hear about what counts as a proper mail-in ballot. That is a different factual inquiry. We'll know pretty quickly how many in-person votes we have, how many mail-in ballots were requested. We'll have a good sense of who's winning."

But Princeton politics professor Keith Whittington said one takeaway from the 2000 election is that "politics can play a role, even in the context of courts," since the justices voted along ideological lines for part of the opinion that decided the fate of the 2000 recount. That could put the Biden campaign at a disadvantage, should this year's election end up before the high court.

"In the midst of an election dispute over something as important as who's going to occupy the White House, it's very hard for judges up and down the judicial system not to be influenced by that," he said. "It's a heated political environment for judges to have to make decisions, often very quickly and sometimes on issues that are unfamiliar."

But he added that Chief Justice John Roberts has been considered something of a swing vote in recent years. Other members of the court's conservative wing haven't always voted in lockstep, either. Justices Neil Gorsuch and Roberts, both conservatives, voted in favor of outlawing discrimination against LGBTQ employees last term.

"It's certainly safer for the Trump campaign if they can get another justice on the court, on the assumption that another justice would be more likely to be sympathetic to them," Whittington said. "Roberts probably is not the only justice that a Trump campaign couldn't necessarily count on in a disputed election this cycle. It does depend on what issues are being litigated."

The high court's decisions on election cases last term might be a preview of what's to come, according to the University of Southern California's Tolson. She said "voters were really the victims" of the court's decision to nix an extension for Wisconsin's absentee ballot deadline. In her dissent, Justice Ginsburg said the majority opinion "boggles the mind."

"The Supreme Court has been horrible on voting rights this year. Absolutely dreadful. And she was alive," Tolson said. "I don't know what Justice Ginsburg dying changes."

But Adav Noti, who worked for more than a decade in the Office of General Counsel of the Federal Election Commission before becoming chief of staff at the non-partisan Campaign Legal Center, said if the election is litigated, the outcome will depend on the strength of the lawsuit.

"Anybody can file a lawsuit. That doesn't mean there's merit to it. Anyone can also appeal. You could imagine a situation where the Supreme Court agrees to take a case just to settle the matter definitively, not because there's any merit to the litigation," he said. "I don't think we can say at all in advance that there's a foregone conclusion based on the composition of the court, and that's true regardless of whether there are eight justices or nine."

--Editing by Kelly Duncan and Michael Watanabe.

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