OH SHIT. Is the Supreme Court About To Swing Another Presidential Election?

[onenote]

24. The Supreme Court hasn't "taken" anything.

Justice Kagan (as the designated Justice for the relevant circuit court of appeals) was presented with a request that the Supreme Court stay of the appeals court's decision while they consider whether or not to "take" the state of Ohio's appeal of that decision. Justice Kagan had three options. Grant the stay. Deny the stay. Or refer the request to the entire court. She didn't grant the stay which is good. She didn't deny the stay, which isn't necessarily bad since, under SCOTUS procedure, when the designated Justice for a circuit denies a stay request, the applicant for a stay can renew that request before any of the other Justices. In other words, if Kagan had denied the stay request, the state of Ohio could have gone to Scalia or Thomas to ask for a stay. By referring it to the entire court, Kagan forces all of the Justices to consider the issue and decide whether to grant the request. While not unheard of, the court as an institutional matter isn't fond of 5-4 stay decisions, so I'm keeping my fingers crossed that the decision will be to deny the stay. At that point, there are several options for the court. It could, as the state has requesteed, treat the application for stay as a petition for certiorari and deny the petition, thereby putting an end to the case. It could treat the stay request as a petition for certorari, grant the petition, and summarily reverse the court of appeals, an approach that seems highly highly unlikely. Or it could treat the stay petition as a petition for certiorari and order briefing and arguments on the merits, either on a highly expedited basis or on a regular schedule. My fear is that if the petition is treated as a cert petition and the petition is granted (which only takes four justices), it is likely that a fifth would support a stay while the case is heard on an expedited basis.

So, there you have it...all sorts of options, but nothing has been decided by the court, including whether to "take" the case.