“The current Supreme Court is divided 5-3 along conservative-liberal lines, with conservative Justices taking a narrow view of voting rights (even during the pandemic) and liberals taking a broader view,” Hasen wrote.
If Chief Justice John G. Roberts Jr. sided with the liberal wing, then it could be a 4-4 tie, and the court would be pressed to reach compromises as it did after Scalia’s death, Hasen wrote.
“Even if the Justices could not compromise, a 4-4 split leaves a lower court decision in place, and so it is not as though we would fail to have a tie-breaker,” Hasen wrote. “And Congress is the ultimate judge of election winners as it decides controversies over electoral college votes.”
Still, the shorthanded court leaves the conservative wing with more of an advantage on such emergency applications, Josh Blackman, a professor at the South Texas College of Law in Houston, wrote on The Volokh Conspiracy blog.
“The Roberts Five will still be able to stay a liberal lower court ruling. But the Ginsburg Four + Roberts will no longer able to stay a conservative lower court ruling,” Blackman wrote. “Roberts would have to persuade another Justice, probably Kavanaugh, to cross over. A four-four tie will leave the lower-court ruling in place.”