Déjà Vu of 2000? Oral Arguments Heard in "McCain v. Obama"

WASHINGTON, OCTOBER 22, 2008--On October 20, the AEI-Brookings Election Reform Project transformed the Georgetown University Law Center into the U.S. Supreme Court, and three retired jurists became a nonpartisan panel whose decision would determine the forty-fourth president of the United States. The moot court case McCain v. Obama

made use of a hypothetical situation affecting the state of Colorado. According to the (fictional) facts of the case, the city of Denver is hit by a severe snowstorm on Election Day, which precludes many Denver voters from reaching the polls. In response, the Denver elections director decides to keep Denver polling places open for two extra hours. All voters who arrive at the polls after seven o'clock are allowed to cast provisional ballots. Colorado's secretary of state files an injunction to halt any counting of these provisional ballots, on the grounds that this would violate the federal equal protection clause. This injunction is rejected by the Colorado Supreme Court. After much legal wrangling, the U.S. Supreme Court decides to take up the case. About 62,000 provisional ballots are cast after seven o'clock in Denver, with about two-thirds of those votes going to Barack Obama. John McCain holds a slim lead in the state of Colorado, and the candidate that receives the state's nine electoral votes will win the presidency.

 

According to Edward Foley, director of the Election Law @ Moritz project at Ohio State University, "The specific inspiration for today's event was a special three-judge panel created to adjudicate the dispute over Minnesota's gubernatorial election of 1962. . . . Today's case is designed to test whether this 'Minnesota model,' as I call it, would be useful for resolving disputes that might arise in presidential elections." The three-justice panel adjudicating McCain v. Obama

included David Levi, dean of Duke Law School, Thomas Phillips, retired chief justice of the Supreme Court of Texas, and Patricia Wald, former chief judge for the U.S. Court of Appeals for the D.C. Circuit.

 

At issue were the meaning of the equal protection clause with regard to the situation in Colorado and the application of Article II of the Constitution to the selection of presidential electors. Arguing on McCain's behalf, Glen Nager of Jones Day asserted that the secretary of state's decision not to count provisional ballots cast in Denver after seven o'clock "was perfectly constitutional because it held all voters equally to the same standard." Even though non-Denver voters may also have been affected by the weather and traffic conditions, they were still deprived of the extended polling hours offered to those in Denver. Wald questioned Nager about whether any exigency not controlled by the state could result in a constitutional extension of polling hours, to which Nager replied that the "equal protection clause doesn't apply to God." Since not all polling places across the state were opened for the same amount of time, not all Colorado voters were treated the same. "There has to be a uniform rule and there has to be consistent application of the rule across the state," Nager said. In Denver, it is possible that some came to the polls because they had the "convenience" of two extra hours in which to visit the polls. Additionally, Nager argued that Article II delegates to the legislature the power to select presidential electors, implying that neither local election officials nor the U.S. Supreme Court is responsible for making such decisions.

 

Arguing for Barack Obama was Walter Dellinger of O'Melveny & Myers. Nager's concluding point about Article II comprised the bulk of Dellinger's argument. He began by stating how "inappropriate" it was for the Supreme Court to be making a decision in this case. In fact, Dellinger argued, "the ultimate question is so political that it ought to be decided by politically accountable people." This could take the form of a joint committee of the state legislature. In this case, however, Dellinger said, the state legislature "expressly identified the courts as the organ for deciding disputes." Furthermore, when Levi asked whether the Colorado legislature could take away the authority of the state Supreme Court in deciding to count provisional ballots, Dellinger replied, "I see nothing that would preclude the legislature from making a new arrangement." He concluded that the counting of provisional ballots cast after seven o'clock in Denver did not violate the equal protection clause because the Denver election officials did not "take anything away from anyone. . . . The goal ought to be to make it easy and to facilitate voting."

 

After the judges left the room to deliberate, Foley and AEI's John C. Fortier

 led a discussion session. Both Nager and Dellinger asserted their belief that a decision in the hypothetical McCain v. Obama case should take political considerations into account. "The partisanship of Congress is indeed the important value," Dellinger added. Therefore, Congress should decide on the selection of presidential electors, just as the Founders intended.

 

The panel's ruling is available  here as an Adobe Acrobat PDF. This event was cosponsored by the AEI-Brookings Election Reform Project, Election Law @ Moritz, and the Georgetown Law Supreme Court Institute.

 

 

--JENNIFER MARSICO

For more information about the AEI-Brookings Election Reform Project, visit www.electionreformproject.org.

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