And the SC is split 4-4?
Then the lower court decision that was taken up by the Supreme Court stands.
In other words, if it comes down to Ohio, and the Ohio courts order a recount after Trump is certified the winner by 16 votes, the Trump campaign might ask the U.S. Supreme Court to step in and reverse the Ohio Supreme Court. If they do, and split 4-4, the recount order from the Ohio Supreme Court would stand.
Oh okay, thanks. I didn’t realize the lower courts would hear the case. I don’t remember that happening with Gore/Bush.
Yeah, I thought Bush/Gore went straight to SCOTUS, since it was a federal election. I could be remembering wrong.
The United States Supreme Court decision in Bush v Gore was based on an appeal to a decision that had been issued by the Florida Supreme Court.
Wouldn’t it depend on exactly what the issue of contention was? If they want a recount in Ohio, sure, the Ohio courts will make a ruling. If Trump sues on the contention that Hilary is a lizard in human skin, and therefore not a citizen, wouldn’t SCOTUS be the whatever-the-Latin-phrase-is-for-court-of-first-resort?
“Forum of original jurisdiction,” I think. I’m a little rusty. IANAL.
In this case the court would likely punt and declare it a no justiciable political issue anyway, but - and I cannot emphasize how speculative this entire post is, and how you should not rely on it even if, especially if, someone is offering you a bar bet on the answer - if an issue arose in the court’s original jurisdiction and no majority decision could be reached then no ruling would be made. Since there’s nowhere to remand to, the state of the world doesn’t change. No precedent. As though nothing happened except the fees.
I think the premise of the OP is wrong. There’s no legal mechanism to bring the case into SCOTUS where they decide who the next president is. In Bush vs. Gore, the legal issues were much much narrower. The Florida Supreme Court ruled to allow an alternate method of recounting ballets that wasn’t established as law by the Florida Legislature. SCOTUS only ruled that the recount had to use the method that was prescribed by Florida law and no others.
Of course it can be argued that this SCOTUS decision indirectly determined who the next president was. But it can also be argued that it was the letter of the Florida law that determined this. I also remember the argument that said just how much damage to the country can one man do in four years? In hindsight it’s hard to pin down Bush damaging the country in any way for which he didn’t have permission from Congress.
In summary, there will never be a time where Presidential candidates appear before SCOTUS and have them decide which will be president. If there’s an issue concerning the law, then the justices will confine themselves to ruling on the law, without consideration of how their ruling will effect the results of the election.
Italics mine.
What you say is indeed the Platonic ideal of SCOTUS jurisprudence.
Of late there’s been a suspiciously close correlation between the political party advantaged by Justices’ individual votes and the political party responsible for each Justice’s elevation to the top bench.
Make of that apparent tendency what you will.
Basically it is up to Ohio to decide how to choose its electors. The state could decide to cancel the election there and have the state legislature choose them. Or they could decide to choose them from congressional districts (plus two at large) as ME and NB do. Or any other way that suits their fancy and is consistent with the state’s own constitution.
Leaving 2000 aside (which the court decided was not precedential) the most relevant example was the 1876 election in which four southern states sent two sets of electors and congress had to decide which to accept. They appointed a commission of 15 members, 7 Dems, 7 Reps and one unaffiliated. To oversimplify a lot, an agreement was reached under which the Rep Rutherford B. Hayes was chosen, but had agreed to withdraw all federal troops from the south, thereby ending reconstruction and allowing the growth of Jim Crow and all that. But the Dem would have withdrawn the troops too. Just google 1876 election. The Wiki entry is a fascinating read.
This is the rule AFAIK:
Nothing about the people voting, etc. I guess popular vote is just a tradition.
Yup. You are.
28 U.S. Code § 1251 codifies the areas in which the Supreme Court has original jurisdiction – that is, cases that they hear as a trial court and not on review of another court’s decision. The basic rule comes from the US Constitution, Article III, section 2:
Congress has vested original and exclusive jurisdiction of all controversies between two or more States in the Supreme Court. So if Virginia sues Maryland, the Court hears the case up front. (What actually happens typically is the court appoints someone to serve as a “Special Master,” who gathers evidence and reports to the Court.)
The Supreme Court has original but not exclusive jurisdiction of “…all actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; all controversies between the United States and a State; and all actions or proceedings by a State against the citizens of another State or against aliens.”
In such cases, the court can hear a matter as a trial court, but does not have to.