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Politics & Polls #22 with Linda Greenhouse: How will a Trump Presidency affect the Supreme Court?
A new episode of Politics & Polls: How will a Trump Presidency affect the Supreme Court? And how soon? Julian Zelizer and I talk it over with veteran Supreme Court reporter Linda Greenhouse. Listen!
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Nice show, as always. Will the podcasts continue between the election cycles?
Anyone have any thoughts about whether or not the Supreme Court would hear (and rule) on something like this:
https://medium.com/@lessig/the-equal-protection-argument-against-winner-take-all-in-the-electoral-college-b09e8a49d777#.est4hkzcx
I need to go back for a closer look at how the 14th Amendment played in Bush v. Gore before commenting on this idea.
Procedurally, I think one might be able to force them to consider such a case. A voter in a state such as Georgia, or California, or NY would bring an action in federal district court challenging the state’s winner-take-all allocation of electoral college votes as a 14th Amendment constitutional violation. I think that would get you a three-judge district panel, and from its decision an appeal would be direct to the Supreme Court. That court would — per Congressional statute — have to take it, rather than having writ-of-certiorari discretion whether to take it.
The merits — very challenging topic.
Hmm. Maybe you couldn’t get a three-judge district panel, and thus a mandatory appeal to the Supreme Court. While this would be a constitutional challenge to an electoral process, it wouldn’t be about redistricting, of either House districts or state legislative districts, and thus outside the scope of the three-judge panel statute as it currently reads (after revision in 1976).
So — whether the Supremes would take the case probably depends on the outcome of an appeal to a circuit court. If the circuit court failed to find a 14th Amendment violation, it would be very tempting for the Supremes to let that stand and not get involved. If, on the other hand, any one circuit court did find a 14th Amendment violation, then I think they would certainly take up the case via grant of writ of certiorari.
So basically…there’s a chance the Supreme Court would hear the case, but basically zero chance they’d do it before December 19 of this year. And the odds of the court affirming a constitutional violation are anybody’s guess? If the argument is built on the same argument that swayed a more conservative court in 2000 to halt Florida’s recount, you’d think a less conservative, eight-person court would give it at least some consideration, right?
Certainly, zero chance that they would take this up on an emergency basis before Dec. 19 this year. Unlike the unusual recount circs in Florida in 2000, nothing new here about the Electoral College practices. So if somebody wanted to do something about it for this year, they should have started long ago (and nobody actually anticipated there would be a problematic outcome this year). A challenge started now would be for the next cycle.