What happens if America wakes up on Nov. 9 to another undecided, hotly disputed presidential election? What if the outcome turns on the razor-thin margin in one or two states, one candidate seeking a recount, the other going to court?
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.
“It would be Bush v. Gore, with a twist,” said one election law expert, law professor Richard Hasen at the University of California at Irvine.
“I call it the nightmare scenario,” said University of Kentucky law professor Joshua Douglas.
Sixteen years ago, the court divided 5 to 4 about whether to get involved at all and then voted the same way to stop Florida’s state court-ordered recount. The five more conservative justices sided with Republican nominee Bush, while the four more liberal justices would have ruled for Democrat Al Gore.