Tag Archives: U.S. Supreme Court

U.S. Supreme Court justices appear unlikely to throw out Obamacare

By Lawrence Hurley and Andrew Chung

WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday signaled they are unlikely to strike down the Obamacare healthcare law in a legal challenge brought by Texas and 17 other Republican-governed states and joined by President Donald Trump’s administration.

Chief Justice John Roberts and fellow conservative Brett Kavanaugh indicated skepticism during two hours of arguments in the case toward the stance by the Republican challengers that the entire law must fall if a single key provision, called the individual mandate, is deemed unconstitutional.

That provision originally required people to obtain insurance or pay a financial penalty. Trump signed a law in 2017 that erased the penalty, a change that Republicans then argued eliminated the constitutional justification for the provision as permissible under the power of Congress to levy taxes.

Roberts asked questions suggesting that because Congress did not repeal the entire law, formally known as the Affordable Care Act (ACA), when it eliminated the penalty, all of Obamacare should not be invalidated due to this one change.

If Roberts and Kavanaugh join the court’s three liberals in the court’s eventual ruling due by the end of June, the bulk of Obamacare would survive.

“It’s hard for you to argue that Congress intended the entire act to fall if the mandate was struck down,” said Roberts, who authored 2012 and 2015 rulings that upheld Obamacare in previous Republican legal challenges.

The case represents the latest Republican legal attack on the 2010 law, Democratic former President Barack Obama’s signature domestic policy achievement. Republicans also have failed numerous times to repeal Obamacare in Congress, though Trump’s administration has taken steps to hobble the law.

The justices heard arguments by teleconference in an appeal by a coalition of 20 states including Democratic-governed California and New York and the Democratic-controlled House of Representatives hoping to preserve Obamacare. The court, with three Trump appointees including Kavanaugh, has a 6-3 conservative majority.

After the arguments, President-elect Joe Biden, who served as Obama’s vice president, criticized the “right-wing ideologues” who pursued the “simply cruel and needlessly divisive” litigation.

“This argument will determine whether (the) healthcare coverage of more than 20 million Americans who acquired it under the Affordable Care Act will be ripped away in the middle of the nation’s worst pandemic in a century,” Biden told reporters in Delaware.

Citing a “moral obligation to ensure that here in America healthcare is a right for all and not a privilege for a few,” Biden promised to start building on the Affordable Care Act immediately after succeeding Trump on Jan. 20.

Obamacare expanded public healthcare programs and created marketplaces for private insurance. Without Obamacare, Biden noted, insurers could once again refuse to cover people with any pre-existing medical conditions such as diabetes, cancer, asthma or complications from COVID-19.

Roberts and Kavanaugh appeared to agree that the mandate to obtain insurance can be separated from the rest of the law.

“We ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed,” Roberts said.

The fact that Congress in 2017 left the rest of the law intact “seems to be compelling evidence,” Roberts added.

Kavanaugh added that “this is a fairly straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”

LEGAL STANDING

The justices – conservatives and liberals alike – raised questions over whether Texas and the other challengers had the proper legal standing to bring the case, worrying about similar scenarios in which someone might be able to sue over some other government mandate when no penalty exists.

Roberts said such a stance “expands standing dramatically” by enabling people to challenge a whole host of laws without experiencing direct harm.

Justice Amy Coney Barrett, Trump’s most recent appointee, asked skeptical questions about legal standing. Democrats, ahead of Barrett’s Senate confirmation last month, focused their opposition to her appointment on the Obamacare case, fearing she would vote to strike down the law. Her questions did not indicate she would.

Trump’s third appointee, Justice Neil Gorsuch, asked probing questions on standing, though he sounded skeptical about the individual mandate’s constitutionality.

The 2012 ruling authored by Roberts defined the individual mandate’s financial penalty as a tax, thus finding the law permissible under the Constitution’s provision empowering Congress to levy taxes.

The 2017 Republican-backed change eliminating the penalty meant the individual mandate could no longer be interpreted as a tax provision and was therefore unconstitutional, the Republican challengers argued in their lawsuit filed in 2018.

Texas-based U.S. District Court Judge Reed O’Connor in 2018 ruled that Obamacare was unconstitutional as currently structured following the elimination of the penalty.

The New Orleans-based 5th U.S. Circuit Court of Appeals last year also found the mandate unconstitutional but stopped short of striking down Obamacare. The Democratic-led states and House then appealed to the Supreme Court.

(Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham

Conservative U.S. Supreme Court prepares to hear Obamacare challenge

By Lawrence Hurley

WASHINGTON (Reuters) – The U.S. Supreme Court on Tuesday is set to hear arguments in a bid by Republican-governed states backed by President Donald Trump’s administration to strike down the Obamacare healthcare law, even as Joe Biden prepares to replace Trump in January.

Key priorities set by the Democratic president-elect included expanding healthcare access and buttressing Obamacare, the 2010 law formally called the Affordable Care Act that Republicans for years have sought to invalidate. The law was the signature domestic policy achievement of former President Barack Obama, under whom Biden served as vice president.

Although the court now has a 6-3 conservative majority bolstered by the Senate confirmation last month of Trump’s third appointee, Amy Coney Barrett, most legal experts think it would stop short of a seismic ruling striking down the law. The Supreme Court in 2012 and 2015 fended off previous Republican challenges to Obamacare.

Biden and other Democrats have criticized Republican efforts to strike down the law in the midst of a deadly coronavirus pandemic.

If Obamacare were to be struck down, up to 20 million Americans could lose their medical insurance and insurers could once again refuse to cover people with pre-existing medical conditions. Obamacare expanded public healthcare programs and created marketplaces for private insurance.

“Abolishing the Affordable Care Act would be deeply damaging to the American health care system and public health,” Georges Benjamin, executive director of the nonprofit American Public Health Association, said in a statement.

The justices will hear an expanded 80-minute oral argument by teleconference due to the pandemic.

The impetus for the Supreme Court case was a 2018 ruling by a federal judge in Texas that Obamacare as currently structured in light of a key Republican-backed change made by Congress violates the U.S. Constitution and is invalid in its entirety.

The justices in March agreed to hear an appeal filed by a coalition of Democratic-led states and the Democratic-controlled House of Representatives defending Obamacare.

They asked the justices to overturn a ruling by the New Orleans-based 5th U.S. Circuit Court of Appeals that declared that the law’s “individual mandate” that required people to obtain health insurance ran afoul of the Constitution. Republican states led by Texas and backed by Trump’s administration have asked the justices to throw out the law.

If the individual mandate is struck down “then it necessarily follows that the rest of the ACA must also fall,” Trump administration’s lawyers argued in court papers.

The Supreme Court in 2012 upheld most Obamacare provisions including the individual mandate, which required people to obtain insurance or pay a financial penalty. The court defined this penalty as a tax and thus found the law permissible under the Constitution’s provision empowering Congress to levy taxes.

In 2017, Trump signed a Republican-backed law tax that eliminated the financial penalty under the individual mandate, which gave rise to the Republican lawsuit. The tax law meant the individual mandate could no longer be interpreted as a tax provision and was therefore unlawful, the Republican challengers argued.

Democrats made the Republican threat to Obamacare a central feature of their opposition to Barrett’s confirmation to replace the late liberal Justice Ruth Bader Ginsburg.

Barrett, when she was a law professor, previously indicated she backed the challengers in the two previous Obamacare cases that reached the Supreme Court.

In recent cases with conservative justices in the majority, the court has declined to strike down an entire statute just because one part was unlawful.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” conservative Justice Brett Kavanaugh, another Trump appointee, wrote in a ruling earlier this year.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

Trump lawsuits unlikely to impact outcome of U.S. election, experts say

By Tom Hals

WILMINGTON, Del. (Reuters) – President Donald Trump called in his lawyers to shore up his dimming re-election prospects, but legal experts said the flurry of lawsuits had little chance of changing the outcome but might cast doubt on the process.

As Trump’s paths to victory narrowed, his campaign on Thursday was ramping up legal challenges and said it was planning to file its latest case in Nevada.

On Wednesday, the campaign sued in Michigan, Pennsylvania and Georgia and asked to join a pending case at the U.S. Supreme Court.

Experts said the litigation serves to drag out the vote count and postpone major media from declaring Biden the victor, which would have dire political implications for Trump.

“The current legal maneuvering is mainly a way for the Trump campaign to try to extend the ball game in the long-shot hope that some serious anomaly will emerge,” said Robert Yablon, a professor at the University of Wisconsin-Madison Law School. “As of now, we haven’t seen any indication of systematic irregularities in the vote count.”

Trump campaign manager Bill Stepien said in a statement Wednesday the lawsuits were aimed at ensuring legal votes were counted.

“The lawsuits are meritless,” said Bob Bauer, who is part of Biden’s legal team. “They’re intended to give the Trump campaign the opportunity to argue the vote count should stop. It is not going to stop.”

Ultimately, for the lawsuits to have an impact, the race would have to hang on the outcome of one or two states separated by a few thousand votes, according to experts.

In Michigan and Pennsylvania, Trump asked courts to temporarily halt the vote counts because the campaign’s observers were allegedly denied access to the counting process.

The Michigan case was dismissed on Thursday but a Pennsylvania court ordered that Trump campaign observers be granted better access to counting process in Philadelphia.

At the Supreme Court, the campaign is seeking to invalidate mail-in votes in Pennsylvania that are postmarked by Election Day but arrive by the end of Friday.

In Georgia, the Trump campaign asked a judge to require Chatham County to separate late-arriving ballots to ensure they were not counted, but the case was dismissed on Thursday.

“There is no consistent strategy there,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. She said the campaign was “throwing theories at a wall to see if anything sticks for long enough to muck up the waters.”

Edward Foley, who specializes in election law at the Moritz College of Law, said the cases might have merit but only affected a small number of ballots and procedural issues.

“But merit in that sense is very different from having the kind of consequence that Bush v. Gore did in 2000,” said Foley.

In that case, the Supreme Court reversed a ruling by Florida’s top court that had ordered a manual recount and prompted Democrat Al Gore to concede the election to Republican George W. Bush.

The 2000 election improbably close, with a margin of 537 votes in Florida deciding the outcome.

The campaign is still challenging late arriving mail-in ballots in Pennsylvania, which according to media reports numbered in the hundreds so far, likely too few to have a meaningful impact.

In addition, it appears increasingly likely Biden can win the race even if he loses the state.

Danielle Lang, who advocates for voting rights at Campaign Legal Center, said Trump has a long history of attempting to whip up mistrust in our electoral system.

“Allegations of ‘irregularities’ — backed up by lawsuits, even frivolous ones — could potentially serve that narrative,” she said.

Experts said the lawsuits and claims of fraud might be aimed at softening the sting of being bounced from office by calling the process into question.

“The litigation looks more like an effort to allow Trump to continue rhetorically attempting to delegitimize an electoral loss,” said Joshua Geltzer, a professor at Georgetown Law’s Institute for Constitutional Advocacy & Protection.

(Reporting by Tom Hals in Wilmington, Delaware; Editing by Noeleen Walder and Aurora Ellis)

Trump supporters protest outside Arizona vote center

By Mimi Dwyer

PHOENIX (Reuters) – A crowd of Donald Trump supporters, some armed with rifles and handguns, gathered outside an election center in Arizona on Wednesday night after unsubstantiated rumors that votes for the Republican president were deliberately not being counted.

Chanting “Stop the steal!,” and “Count my vote,” the mostly unmasked protesters stood in front of the Maricopa County Elections Department in Phoenix, as Democratic presidential candidate Joe Biden held a razor thin lead in the critical battleground state. Some news outlets have called Arizona for Biden, but Trump’s campaign says it is still in play.

A victory for Biden in Arizona would give the Democrat 11 electoral votes, a major boost in his bid to win the White House, while severely narrowing Trump’s path to re-election, in a state the Republican won in 2016.

On Election night Fox News and the Associated Press called Arizona for Biden, even though only just over 70% of the vote had been counted, a move that infuriated Trump and his aides.

Some of the roughly 200 protesters, who were faced by a line of armed county sheriffs, chanted “Shame on Fox!”. Some said they came out after a tweet from Mike Cernovich, a right-wing activist.

Chris Michael, 40, from Gilbert, Arizona, said he came to make sure all votes are counted. He said he wants assurances that the counting was done “ethically and legally.”

Rumors spread on Facebook Tuesday night that some Maricopa votes were not being counted because voters used Sharpie pens to mark their ballots. Local election officials insisted that was not true.

With the count still under way in several key states, Trump has accused the Democrats of trying to steal the election without evidence and filed lawsuits in several states related to vote-counting.

A similar scene played out on Wednesday afternoon in downtown Detroit, where city election officials blocked about 30 people, mostly Republicans, from entering a vote-counting hall amid unfounded claims that the vote count was fraudulent.

Trump has filed a lawsuit in Michigan to stop vote-counting that the secretary of state called “frivolous.”

The protests echoed the “Brooks Brother riot” during the 2000 recount in Florida that ultimately handed the presidency to Republican George W. Bush. A crowd of blazer-clad Republican protesters stormed a building where a hand recount was underway in a heavily Democratic district, forcing poll workers to stop counting ballots.

The protest is now viewed as a significant event in keeping Bush’s slender vote advantage in Florida intact. The U.S. Supreme Court ultimately stopped the Florida recount, handing Bush the presidency and defeat to Democrat Al Gore.

(Reporting by Mimi Dwyer in Phoenix; writing by Tim Reid; Editing by Heather Timmons and Richard Pullin)

U.S. Supreme Court may not have final say in presidential election, despite Trump threat

By Andrew Chung and Lawrence Hurley

WASHINGTON (Reuters) – While President Donald Trump has promised to ask the U.S. Supreme Court to weigh in on a presidential race that is still too close to call, the nation’s top judicial body may not be the final arbiter in this election, legal experts said.

Election law experts said it is doubtful that courts would entertain a bid by Trump to stop the counting of ballots that were received before or on Election Day, or that any dispute a court might handle would change the trajectory of the race in closely fought states like Michigan and Pennsylvania.

With vote-counting still underway in many states in the early hours of Wednesday morning, Trump made an appearance at the White House and declared victory against Democratic challenger Joe Biden.

“This is a major fraud on our nation. We want the law to be used in a proper manner. So we’ll be going to the U.S. Supreme Court. We want all voting to stop,” he said.

The Republican president did not provide any evidence to back up his claim of fraud or detail what litigation he would pursue at the Supreme Court.

As of Wednesday afternoon, the election still hung in the balance. A handful of closely contested states could decide the outcome in the coming hours or days, as a large number of mail-in ballots cast amid the coronavirus pandemic appears to have drawn out the process.

However, legal experts said that while there could be objections to particular ballots or voting and counting procedures, it was unclear if such disputes would determine the final outcome.

Ned Foley, an election law expert at Ohio State University, said on Twitter that the Supreme Court “would be involved only if there were votes of questionable validity that would make a difference, which might not be the case.”

Both Republicans and Democrats have amassed armies of lawyers ready to go to the mat in a close race. Biden’s team includes Marc Elias, a top election attorney at the firm Perkins Coie, and former Solicitors General Donald Verrilli and Walter Dellinger. Trump’s lawyers include Matt Morgan, the president’s campaign general counsel, Supreme Court litigator William Consovoy, and Justin Clark, senior counsel to the campaign.

Benjamin Ginsberg, a longtime Republican election lawyer, said on CNN that any attempt to toss out legally cast votes would likely “be viewed by any court including the Supreme Court as just a massive disenfranchisement that would be frowned upon.” Ginsberg represented George W. Bush’s presidential campaign in 2000 when the Supreme Court ended a recount in Bush’s favor against Democrat Al Gore.

Trump attorney Jenna Ellis on Wednesday defended Trump’s bid to challenge the vote count and evaluate his legal options. “If we have to go through these legal challenges, that’s not unprecedented,” Ellis told Fox Business Network in an interview. “He wants to make sure that the election is not stolen.”

Bringing a case to federal court immediately was one possibility, she added, without giving further details. “We have all legal options on the table.”

The case closest to being resolved by the Supreme Court is an appeal currently pending before the justices in which Republicans are challenging a September ruling by Pennsylvania’s top court allowing mail-in ballots that were postmarked by Election Day and received up to three days later to be counted.

The Supreme Court previously declined to fast-track an appeal by Republicans. But three conservative justices left open the possibility of taking up the case again after Election Day.

Even if the court were to take up the case and rule for Republicans, it may not determine the final vote in Pennsylvania, as the case only concerns mail-in ballots received after Nov. 3.

In a separate Pennsylvania case filed in federal court in Philadelphia, Republicans have accused officials in suburban Montgomery County of illegally counting mail-in ballots early and also giving voters who submitted defective ballots a chance to re-vote.

If Biden secures 270 electoral votes without needing Pennsylvania, the likelihood of a legal fight in that state diminishes in any case, legal experts said.

And any challenge would also need to make its way through the usual court hierarchy.

“I think the Court would summarily turn away any effort by the President or his campaign to short-circuit the ordinary legal process,” said Steve Vladeck, a professor at the University of Texas at Austin School of Law.

“Even Bush v. Gore went through the Florida state courts first.”

(Reporting by Andrew Chung in New York, Lawrence Hurley in Washington, Karen Freifeld in New York and Tom Hals in Wilmington, Delaware; Editing by Noeleen Walder and Rosalba O’Brien)

Former felons among battleground Florida voters for the first time

By Simon Lewis

ST. PETERSBURG, Florida (Reuters) – Shikila Calder, 32, thought about voting early this year, but decided to save her vote – the first of her life – for Election Day on Tuesday.

“It made it special. It was exhilarating,” said Calder, one of potentially thousands of people with past felony convictions voting in a general election for the first time this year, after their rights were restored in a 2018 referendum.

Under Florida law, Calder had been denied the right to vote owning to a conviction for which she served time and repaid her debt to society a decade ago, she said after voting at a community center in the city of St. Petersburg.

“I have my voice back,” she said, a beaming smile visible in spite of her face mask. “I’m welcomed back into my community as a person and I don’t have that big label on me as a bad person.”

An amendment to Florida’s constitution was to restore voting rights to an estimated 1.4 million felons in the battleground state, ahead of the crucial election between Republican President Donald Trump and Democratic nominee Joe Biden.

But far fewer former felons were voting on Tuesday after the Republican-led Florida Senate passed a law last year requiring that only those who had paid all legal fines, fees and restitution associated with their convictions could register to vote.

The law was challenged by voting rights groups, which argued the law disproportionately impacted African Americans, who are more likely than whites to have felony convictions and more likely to owe financial obligations.

The U.S. Supreme Court rebuffed the challenge in July, leaving the law in place.

Donors, including NBA star LeBron James and billionaire Michael Bloomberg, have been helping to pay off former felons’ fines so they could vote, but it is unclear how many were able to register ahead of Tuesday’s election.

The Florida Rights Restoration Council, a campaign group that fought for the constitutional amendment, was expected to release an estimate of how many were able to vote.

Calder, who is black, said she has paid all obligations related to her sentence.

She said she voted for Biden because she trusted former President Barack Obama’s vice president to improve education and tackle racism in America.

Since serving prison time, Calder has trained as a phlebotomist and works at a St. Petersburg hospital.

“I don’t regret my past because it made me who I am today,” she said.

(Reporting by Simon Lewis; Editing by Dan Grebler)

Trump’s appointee Barrett takes part in first Supreme Court arguments

By Lawrence Hurley

WASHINGTON (Reuters) – Amy Coney Barrett participated in her first case as a member of the U.S. Supreme Court on Monday, with President Donald Trump’s appointee welcomed by Chief Justice John Roberts before questioning one of the lawyers in a dispute in which an environmental group is seeking government documents.

Owing to the coronavirus pandemic, Barrett made her debut not in a public session in the ornate courtroom where the justices usually hear cases but rather in a teleconference format, with a live audio feed available to the public.

Although Barrett officially started work last Tuesday, she did not participate in Friday’s private conference in which the justices discussed what new cases to hear because she was preparing for this week’s arguments, a court spokeswoman said.

“It gives me great pleasure on behalf of myself and my colleagues to welcome Justice Barrett to the court,” Chief Justice John Roberts said at the outset. “… Justice Barrett, we wish you a long and happy career in our common calling.”

With the justices taking turn by seniority, Barrett was the last to weigh in on the case brought by the Sierra Club seeking documents related to the U.S. Fish and Wildlife Service’s consideration of a regulation finalized in 2014. The agency concluded that the environmental regulation for cooling water intake structures that are used by power plants and other industrial facilities would not adversely affect endangered species, including fish, turtles and shellfish.

Barrett, following fellow Trump appointee Justice Brett Kavanaugh, continued with his line of questioning on how courts determine which internal agency documents are subject to a federal law called the Freedom of Information Act, which lets people request certain materials.

“What other factors would a court consider?” Barrett asked, in relation to how courts decide whether a draft document, as opposed to a final report, can be sought as part of such a request.

A federal judge in California ruled in 2017 that 11 documents had to be disclosed. The government appealed and the San Francisco-based 9th U.S. Circuit Court of Appeals in 2018 ruled partly for the government but still found that nine documents had to be released.

It was the first of two cases on Monday. The second was an employment benefits dispute involving a former railroad worker.

The Republican-led Senate confirmed Barrett one week ago, with Democrats strongly opposed. Trump on Sept. 26 announced Barrett as his nominee to replace liberal Justice Ruth Bader Ginsburg, who died of cancer on Sept. 18. Barrett previously was appointed by Trump as a federal appeals court judge in 2017 after she served as a law professor at Notre Dame University in Indiana.

Barrett’s confirmation expanded the Supreme Court’s conservative majority to 6-3.

Monday’s case was argued a day before the U.S. election in which the Republican president is seeking a second term in office against Democratic challenger Joe Biden. In campaign rallies, Trump has touted his appointment of Barrett, receiving applause from his supporters.

No Supreme Court justice has ever been confirmed so close to a presidential election. At 48, Barrett could serve in her lifetime post for decades alongside Trump’s two other Supreme Court appointees, Kavanaugh and Neil Gorsuch.

The first major case in which Barrett will take part comes on Wednesday when the court hears a religious rights dispute involving the city of Philadelphia’s refusal to place children for foster care with a Catholic agency that bars same-sex couples from serving as foster parents.

Next week, the court hears arguments in litigation in which Trump and Republican-governed states are seeking to invalidate the Affordable Care Act, the 2010 healthcare law also called Obamacare that has helped millions of Americans obtain medical insurance.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

Explainer: ‘Dueling electors’ pose risk of U.S. vote deadlock

By Tom Hals

(Reuters) – In the United States, a candidate becomes president by securing the most “electoral” votes rather than winning a majority of the national popular vote. Known as the Electoral College, the system allots electors to the 50 states and the District of Columbia largely based on their population.

It is theoretically possible for the governor and legislature, each representing a different political party, to submit two different election results, leading to so-called “dueling slates of electors.”

Below are details of how that might play out.

What are electors?

The U.S. president is selected by 538 electors, known as the Electoral College, with electors apportioned based on each state’s population. The popular vote in each state typically determines which candidate receives a state’s electoral votes.

The U.S. Constitution and the 1887 Electoral Count Act govern the counting of electoral votes and any related disputes. The electors will meet on Dec. 14 to cast votes, which are then counted by Congress on Jan. 6 in a process overseen by Vice President Mike Pence in his role as Senate president.

What are dueling electors?

States with close contests between Republican President Donald Trump and his Democratic rival Joe Biden could produce competing slates of electors, one certified by the governor and the other by the legislature.

The risk of this happening is heightened in the battleground states of Michigan, North Carolina, Pennsylvania and Wisconsin, which have Democratic governors and Republican-controlled legislatures.

Some election law experts are concerned that an unprecedented volume of mailed-in votes and legal challenges will delay the outcome of the election for weeks, creating an extended period of uncertainty.

Trump has repeatedly said the election is rigged and made unfounded attacks on mail-in voting, which tends to favor Democrats.

If early returns show a Trump lead, experts say the president could press Republican-controlled legislatures to appoint electors favorable to him, claiming the initial vote count reflects the true outcome.

Governors in those same states could end up backing a separate slate of electors pledged to Biden if the final count showed the Democratic candidate had won.

Both sets of electors would meet and vote on Dec. 14 and the competing results would be sent to Congress.

Which set of electors would prevail?

Both chambers of Congress could accept the same slate of electors, which would almost certainly put the matter to rest.

The chambers could also split, which is more likely if the Republicans retain control of the Senate and Democrats hold onto their House majority.

If lawmakers cannot agree on a set of electors, the country will find itself in uncharted territory.

The Electoral Count Act, often described by academics as “unintelligible,” seems to favor the slate of electors certified by the state’s governor, according to Ned Foley, a professor at Ohio State University Moritz College of Law.

But Foley notes that some scholars and an analysis by the Congressional Research Service have rejected that conclusion.

Academics have sketched out several scenarios. Under one, Pence as president of the Senate could throw out both sets of a state’s electors. Another contemplates that the House of Representatives would end up choosing between Biden and Trump. There is even a scenario in which the Speaker of the House, currently Democrat Nancy Pelosi, could become acting president.

Would the U.S. Supreme Court get involved?

The Supreme Court may be called upon to interpret the Electoral College Act to break any deadlock.

A Supreme Court ruling helped resolve the 2000 election in favor of George Bush over Al Gore, but that case was about a recount in Florida and the decision was reached before electors met to cast their votes.

“I think there will be legal challenges,” said Jessica Levinson, director of Loyola Law School’s Public Service Institute. “But I could see a court saying this would really be better left up to Congress.”

Has this happened before?

In 1876, dueling electors in three states were deadlocked until a deal was brokered days before Inauguration Day.

The dispute was resolved after Republican Rutherford B. Hayes became president in exchange for withdrawing U.S. troops left over from the Civil War from Southern states.

“I hope it’s a very low probability event but 1876 is a reminder that it is not zero and we have come very close to falling over that cliff in our history,” Foley said.

(Reporting by Tom Hals in Wilmington, Delaware; Editing by Noeleen Walder and Aurora Ellis)

Trump fails to block tax return subpoena, will appeal to Supreme Court

By Jonathan Stempel

NEW YORK (Reuters) – A federal appeals court on Wednesday rejected Donald Trump’s effort to block Manhattan’s district attorney from obtaining eight years of his tax returns for a criminal probe into the U.S. president and his businesses.

In a 3-0 decision, the 2nd U.S. Circuit Court of Appeals in Manhattan rejected Trump’s accusations that a grand jury subpoena from Manhattan District Attorney Cyrus Vance was overly broad, or issued in bad faith to harass him.

“The President has a ‘difficult’ burden and an ‘unenviable’ task: to make plausible allegations that could persuade the court that the subpoena that has been served on him could not possibly serve any investigative purpose that the grand jury could legitimately be pursuing,” it wrote. “His complaint fails to do so.”

Wednesday’s decision heralds a renewed clash between Trump and Vance at the U.S. Supreme Court.

That court in July rejected the Republican president’s argument he was immune from criminal probes while in the White House.

But it said he could raise other objections to the subpoena to his longtime accounting firm, Mazars USA, for his corporate and personal tax returns from 2011 to 2018.

Jay Sekulow, a lawyer for Trump, said the president will appeal to the Supreme Court. Both sides agreed Vance would not enforce the subpoena during an appeal, according to court papers.

A spokesman for Vance did not immediately respond to a request for comment.

The unsigned decision upheld an Aug. 20 ruling by U.S. District Judge Victor Marrero in Manhattan.

It followed a Sept. 28 report in The New York Times that Trump had paid $750 in federal income taxes in both 2016 and 2017, and no income taxes in 10 of the prior 15 years, reflecting “chronic” losses he used to avoid paying taxes.

Trump has rejected findings from the Times report, tweeting that he had paid many millions of dollars in taxes but was entitled to depreciation and tax credits.

He has long resisted making his tax returns public, unlike his six immediate predecessors occupying the White House.

‘IMPLAUSIBLE’ CLAIM

Vance’s probe began more than two years ago, and had focused on hush money payments that the president’s former lawyer and fixer Michael Cohen paid before the 2016 election to two women who said they had sexual encounters with Trump.

The district attorney has suggested in recent court filings that his probe is now broader and could focus on bank, tax and insurance fraud, as well as falsification of business records.

Trump argued that the probe was still focused on the Cohen payments, making the subpoena an improper “fishing expedition” targeting his business interests around the world, and said Vance improperly copied a similar congressional subpoena.

But the appeals court called it “implausible” speculation to suggest the probe was limited to the Cohen payments.

The court said grand juries “necessarily paint with a broad brush,” especially in complex financial investigations, and do not know at the outset what their needs are.

It also found “no logic” to suggest the documents Vance wanted were irrelevant to legitimate law enforcement purposes, just because a congressional committee wanted the same documents for its own investigation.

The court also found no specific allegations that partisanship motivated Vance, a Democrat, to seek Trump’s tax returns.

All three judges on the appeals court panel were appointed by Democratic presidents. Five of the eight current Supreme Court justices were appointed by Republican presidents.

Even if Vance gets Trump’s tax returns, grand jury secrecy rules make it unlikely he will reveal their contents unless criminal charges were brought. If that happened, it would likely occur after the Nov. 3 election.

(Reporting by Jonathan Stempel in New York; Additional reporting by Karen Freifeld in New York, and Alexandra Alper and Sarah N. Lynch in Washington; Editing by Chizu Nomiyama, Steve Orlofsky and Andrea Ricci)