WASHINGTON — The case of McCain v. Obama in the U.S. Supreme Court — shades of Bush v. Gore? It’s a possibility likely to strike fear in the hearts of an electorate stunned in 2000 by the Florida presidential battle and dread in the minds of a news media that haunted the halls of the court building that fall awaiting the decision.
Hypotheticals are the scourge of law students and the lifeblood of Supreme Court arguments. Election law scholar Edward B. Foley of Ohio State University Michael E. Moritz College of Law has taken his student’s April final exam hypo and combined it with current election uncertainties into a legal-scientific experiment that was played out on Oct. 20 by leading Supreme Court practitioners and former judges here in the nation’s capital.
The time and scene: Nov. 4, 2008: A blizzard hits Denver. The resulting whiteout causes total city gridlock, impeding access to the polls. Denver’s Democratic election director and Democratic mayor announce a two-hour extension of polling hours.
Because Colorado has become the deciding state in the Electoral College, Colorado’s Republican secretary of state asks the courts for an injunction against the extension, arguing that it has no basis in law and that it is unfair to extend polling hours only in Denver and not statewide.
While the secretary of state’s urgent request is denied, ballots cast after 7 p.m. are designated as provisional and will not be opened until the matter is settled in court. If these ballots are counted, it is most likely that Barack Obama will win the election; if they are not counted, John McCain will be elected president. The Colorado Supreme Court holds that the state and federal constitutions require that the ballots be counted. The U.S. Supreme Court hears the appeal: the case of McCain v. Obama.
The justices: Chief Justice David F. Levi, Duke Law School, former chief judge, U.S. District Court for the Eastern District California; Associate Justice Thomas R. Phillips, partner at Baker Botts, former chief justice of the Supreme Court of Texas; and Associate Justice Patricia M. Wald, former chief judge, U.S. Court of Appeals for the District of Columbia Circuit. Each has a law clerk helping him or her with the “case.”
The advocates: For McCain: Glen D. Nager, head of Jones Day’s issues and appeals practice; for Obama: former acting Solicitor General Walter Dellinger, head of O’Melveny & Myers’ appellate practice.
The intent: to demonstrate how such a dispute can be resolved in a nonpartisan manner that produces confidence in both the courts and the election system.
“There is this underlying question out there now of how is our judiciary doing handling these high-stakes election cases,” said Foley. “We have a real case ongoing in Ohio over registrations where the 6th Circuit split. We had an 11th Circuit split earlier. This hypothetical is an experiment to see whether there is a different way to do this.”
The nonpartisan approach built into the hypothetical involves the structure of the three-judge panel, said Foley. There is a Democratic appointee and a Republican appointee, both of whom choose a “neutral” third judge.
“Wald and Phillips independently chose Levi,” he said. “It is the fact the two of them mutually identified him which is what the experiment is designed to test — is that a sufficient structural guarantee of neutrality?”
If it is, he added, it will cause their decision to be as fair as conceivable, no matter what the decision looks like, and there would be public acceptance of fairness based on an understanding of selection process.
To brief and argue the hypothetical case, appellate lawyers with Supreme Court experience were sought, according to Foley.
“There was no litmus test asking who they were voting for,” he said. “But we wanted them to be the kind of attorneys these clients would go to, and we also wanted leading Supreme Court advocates.”
Dellinger was acting solicitor general and White Counsel during the Clinton administration. Nager was an assistant to the solicitor general during the Reagan Administration.
Foley chose Colorado as his April exam hypothetical because, at the time, it looked as if it might be a swing state in the presidential election. He said he initially was going to make the hypothetical technology-based — a meltdown in the electronic voting system, for example. But he changed his mind after the primary election season in which a number of states experienced serious weather-related problems.
Maryland, for example, extended poll hours because of an ice storm, but Virginia did not. A federal court extended the hours in Cleveland.
“It was not inconceivable to have a, exceptionally bad freakish storm on election day in Colorado,” said Foley. “Colorado’s law also was useful in pointing out a kind of ambiguity. The law says polls close at 7 p.m., but it’s silent on an emergency. It did invite this hypo.”
During the arguments, Nager told the court, among other arguments, that there is no proper federal constitutional basis for requiring untimely cast ballots to be counted, particularly when the alleged obstacle to timely voting is not government action, but merely increased traffic from inclement weather. Dellinger argued that the Supreme Court should stay out of the dispute, saying that Article II vests Congress with the authority to determine the proper counting of electoral votes from each state.
The Bush v. Gore decision — which the Supreme Court had said was a decision for that case only — played a role in arguments by both sides, just as it has in real election disputes since the 2000 decision.
The test case is being sponsored by the joint election reform project of the conservative American Enterprise Institute and the liberal Brookings Institute as well as by Georgetown University Law Center’s Supreme Court Institute and Ohio State University Election Law @Moritz.
“It’s going to be fun, but I also hope we learn something,” said Foley.
A decision in McCain v. Obama is expected within 10 days of argument.