Scotusblog has this explanation about what happens to U.S. Supreme Court decisions that haven’t been issued yet, but in which the initial vote after the oral argument resulted in a tentative 5-4 decision, in which Justice Antonin Scalia was in the majority. As the article explains, such tentative votes don’t count, and there may be many 4-4 decisions. On a U.S. Supreme Court tie, the ruling of the lower court stands.

This article explains the consequences for several high-profile cases.

For election law, the first impact of Scalia’s death may be in Harris v McCrory, 15A809, the North Carolina gerrymandering case. The Court was expected to decide very soon whether or not to stay the lower court ruling. With no stay, the North Carolina U.S. House districts will be redrawn soon. And with new districts in place, the state will almost certainly then provide for a primary at some time other than the scheduled March 15 primary. That special, later primary would be just for U.S. House.

Even though February 15 is a holiday, North Carolina legislators will start working on new U.S. House districts on February 15. See this story. Thanks to Rick Hasen for the link.

On February 12, U.S. District Court Judge Andrea R. Wood issued a one-page order, granting the Illinois Libertarian Party’s motion for summary judgment that the Illinois full-slate law is unconstitutional. The decision will be issued later. The minute entry says, “For the reasons stated in the Memorandum Opinion and Order to follow, Plaintiffs’ motion for summary judgment is granted and Defendants’ motion for summary judgment is denied.”

The full-slate law was passed in 1931. It was probably passed to thwart the Communist Party, which had a very popular activist named Claude Lightfoot, a leader of Chicago’s African-American community. He received 33,337 votes for State Representative in 1932, not enough to win, but a strong showing. At the time Illinois used cumulative voting for State House elections. Each district elected three candidates. Each party was permitted to run either one, two, or three candidates. Voters each had three votes, and they could give one vote to each of three candidates, or they could accumulate their votes to give two votes to one person and one to another; or they could give all three votes to a single candidate. Illinois had been using this system since 1870.

The law passed in 1931 said a previously unqualified party (such as the Communist Party, which was never a qualified party in Illinois because it could never get 5% for any statewide race) had to run three candidates for State House, thus preventing such a party from taking advantage of cumulative voting to the fullest extent. The law barred the Communist Party from running just one candidate for State House in a district; it had to run three candidates in any district it contested. Of course voters were still free to give all three of their votes to the most popular Communist and ignore the other two. But the state had a straight-ticket device at the time, and voters who used the straight-ticket device for the Communist Party were splitting their three votes among all three Communist candidates, thus lessening the support for the one candidate that the party hoped might win.

Illinois stopped using cumulative voting in 1982, but the full-slate law remained on the books. It forced newly-qualifying parties to run a full slate of statewide candidates, whether they wanted to or not. For example, in midterm years, it forced such parties to run for Attorney General, if they wanted to run for Governor, even though the party might not have a qualified candidate for Attorney General (only attorneys can run for that position). In county partisan elections, it forced parties that wanted to run for any countywide executive positions to run for State’s Attorney.