'Nightmare' Election Scenario: 'Bush v. Gore With a Twist'
With 8-member Supreme Court, disputed results could be logistical disaster
By Newser Editors and Wire Services
Posted Nov 4, 2016 8:58 AM CDT
In this Nov. 8, 2000, file photo, a man in Chicago holds four copies of the "Chicago Sun-Times," each with a different headline, reflecting a night of suspense and drama following the presidential race...   (CHARLES BENNETT)
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(Newser) – What happens if America wakes up on Nov. 9 to another undecided, hotly disputed presidential election? We know what happened in 2000, when the Supreme Court in a 5-4 vote effectively settled the election in favor of George W. Bush. As controversial as that decision was, it was made by a nine-justice court. This time around, there are only eight justices and the possibility of a tie vote. That would leave a lower federal or state court ruling in place, with no definitive judgment from the nation's highest court, the AP reports. "It would be Bush v. Gore, with a twist," says an election law expert. "I call it the nightmare scenario," adds a University of Kentucky law professor.

Any decision to seek a recount or otherwise contest election results would depend on the margin in any one state and its potential for affecting the national outcome. In 2000, neither Bush nor Gore could muster an Electoral College majority of 270 votes without Florida. If an initial recount doesn't settle things, a lawsuit could follow, with appeals possible all the way to the Supreme Court. If a case should make it that far, it would reach a court made up of four justices appointed by Republican presidents and four by Democrats; a tie is a win for the person who already has prevailed in the lower court on any particular issue. A suit challenging election results almost certainly would have to be wrapped up before Dec. 19, the date electors will meet to cast their votes.
 

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