How do state supreme courts deal with tie votes?
Only 16 states follow the U.S. Supreme Court’s “ties happen” approach when vacancies leave high courts evenly divided, according to a tally by a Texas Supreme Court justice on Donald Trump’s Supreme Court shortlist.
The other 34 states use temporary judges to avert deadlocks, though the details vary, Texas Justice Don Willett writes for the Wall Street Journal (sub. req.).
Twenty-three states assign substitute judges as soon as the court is short staffed, while the other 11 wait for a deadlock, Willett says. In most states, the chief justice picks the substitute, though some states give the job to the court or the governor. Some states choose the fill-in judges alphabetically, randomly or rotationally, while others give “unfettered discretion” to the person doing the choosing.
Willett suggests an alternative to the current system in Texas, “the only state where the governor unilaterally names a tiebreaker post-deadlock, knowing which case has stymied the court. Put another way, the governor of Texas—fully informed about the tie-causing issue and the judicial philosophies of eligible appointees—can vicariously decide the case by deciding who decides the case.”
Willett proposes another approach in Texas. “Before each term,” he writes, “have the Supreme Court collectively name five potential appointees, and if deadlock arises, draw a name randomly from a 10-gallon Stetson.”
