Ginsburg Supreme Court vacancy could complicate possible contested election, some scholars say

The death of Supreme Court Justice Ruth Bader Ginsburg has some Republicans arguing that filling her seat right away is the only way to avoid a possible “constitutional crisis” if the presidential election ends up in the courts.

Debate over those concerns is escalating as the campaigns of President Trump and Democratic nominee Joe Biden brace for the possibility of a protracted legal battle in the event of a contested election result..

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Ginsburg died from complications related to metastatic cancer of the pancreas. Soon after her death was announced, some Republicans said confirming a nominee quickly would avert a potential crisis in which the election comes before the high court but justices are deadlocked.

Sen. Ted Cruz, R-Texas, who the president named as a potential Supreme Court nominee earlier this month, said it was “critical” that the Senate take up and confirm a Trump nominee before Election Day, citing a battle between Republicans and Democrats over the issue of mail-in voting amid the coronavirus pandemic.

“Democrats and Joe Biden have made clear that they intend to challenge this election, they intend to fight the legitimacy of this election,” Cruz said Friday night on “Hannity.”

Republicans, for their part, warn there is a potential for widespread fraud and confusion in November’s election due to the unprecedented scale of mail-in ballots in states across the nation.

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“We cannot have Election Day come and go with a 4-4 court -- a 4-4 court that is equally divided cannot decide anything,” Cruz warned. “I think we risk a constitutional crisis if we do not have a 9-justice Supreme Court, particularly when there is such a risk of contested litigation and a contested election.”

Cruz warned that if the Ginsburg vacancy is not filled, the legal battle could go on “for weeks and months.”  That is, of course, if there is no clear winner.

“We have a responsibility and a responsibility to do our jobs,” Cruz said. “The president should nominate a principled constitutionalist with a proven record and the Senate -- its going to take a lot of work to get it done before Election Day -- but we should do our job and protect the country from the constitutional crisis that could result otherwise.”

A senior legal fellow at the conservative Heritage Foundation, Hans Von Spakovsky, backed Cruz’s warning of a “constitutional crisis.”

“I think he’s right about that,” Spakovsky told Fox News, saying that in the event of a 4-4 deadlock, an appeals court ruling would “remain in effect.”

“You’re going to have a race to the courthouse, with parties trying to file suit in whichever court of appeals circuit they think is most friendly to their side, so that they can hopefully get that court of appeals decision up to the Supreme Court first,” Spakovsky said.

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But another constitutional scholar, who requested anonymity, told Fox News that argument was flawed, noting that a 4-4 deadlocked court would mean that one conservative justice was siding with liberal justices on the matter.

“No matter what, if it is 4-4, that means one of the five Republicans is joining the three remaining Democrats,” the scholar told Fox News. “They are only looking at the playbook from the last time around, when Justice Scalia died, leaving four Republicans and four Democrats.”

Currently, with Ginsburg’s passing, the court has eight justices, with Samuel Alito, Neil Gorsuch, Brett Kavanaugh, John Roberts and Clarence Thomas considered conservative, and Sonia Sotomayor, Stephen Breyer and Elena Kagan considered liberal.

The scholar also told Fox News that the Constitution “makes the Congress the judge of contested elections,” citing the contested elections of 1800, 1824 and 1876, when Congress intervened and judged the outcome.

He said the Supreme Court “majorly regretted” intervening in Bush v. Gore in 2000, and predicted that the high court would not get involved in litigating a potential 2020 contested election.

The scholar did say there is an argument to be made about nominating and confirming a judge to fill Ginsburg’s vacancy ahead of the election, but not because of a crisis. He cited Senate Majority Leader Mitch McConnell’s promise to voters that Republicans would confirm conservative judges -- saying that is a legitimate reason to move forward -- while also warning that some GOP senators in tough re-election battles this November could push back on the timeline.

Democrats, including Biden, have called for the next president to nominate the next justice. But McConnell vowed that a Trump nominee to the Supreme Court to fill her vacancy “will receive a vote on the floor of the United States Senate.”

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise,” McConnell said. “Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”

McConnell added that “by contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.”

“Once again, we will keep our promise,” he said. “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

The president has since seized on McConnell’s promise, urging Republicans to swiftly confirm a nominee to the Supreme Court “without delay.”

Both the Trump and Biden campaigns have built massive legal teams, bracing for the possibility of a protracted legal battle in the event of a contested election.

The Biden campaign told Fox News on Monday that over the past several months they have created the largest election protection program in presidential campaign history, involving integrated legal, communications and political strategies for what they anticipate to be an unprecedented election. Part of the election protection program includes former Attorney General Eric Holder and hundreds of other lawyers.

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The strategies, according to the campaign, are being directed to support election jurisdictions in preparing for and administering the vote under what they call “extraordinary conditions” this cycle, voter education to raise awareness of options for in-person and mail-in voting, aggressive responses to vote suppression activities, and robust programs for identifying and countering foreign interference and misinformation from foreign or domestic sources.

Meanwhile, Trump’s reelection campaign, also bracing for the possibility of a protracted legal battle, formed what it has called “Lawyers for Trump,” a coalition to “protect the integrity” of November’s vote.

Trump campaign general counsel Matthew Morgan told Fox News earlier this month that the campaign is urging active and retired attorneys, and even law students, to volunteer in their nationwide efforts.

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“Democrats are working to shred election integrity measures one state at a time, and there’s no question they’ll continue their shenanigans from now to November and beyond,” Morgan told Fox News. “The Trump campaign is fighting to ensure every valid ballot across America counts – once.”

The coalition is being led by Texas Attorney General Ken Paxton and Arkansas Attorney General Leslie Rutledge, as well as California Committeewoman Harmeet Dhillon and former Deputy White House Counsel Stefan Passantino. The group includes prominent Trump-allied attorneys like former Florida Attorney General Pam Bondi, former Attorney General Ed Meese and the president's personal attorney Rudy Giuliani.