Election Hypothetical A Success
In an initiative designed and led by Moritz Professor Edward B. Foley, a three-judge court recently issued a ruling in the hypothetical case of McCain v. Obama that upheld a (hypothetical) Colorado Supreme Court ruling that allowed the counting of some 60,000 provisional ballots filed on Election Day. In the hypothetical case and oral argument, sponsored by The Ohio State University Moritz College of Law, AEI Brookings Election Reform Project, and Georgetown Law - Supreme Court Institute, a severe snow storm caused election officials in Denver to extend polling hours beyond 7 p.m. This spurred litigation challenging the 60,000 ballots, which were cast as provisional ballots, after the normal 7 p.m. deadline.
This case was created as an experiment to demonstrate how these election disputes can be handled in a non-partisan manner that produces confidence in both the courts and election system. On October 20, 2008, Moritz joined AEI Brookings - Election Reform Project and Georgetown Law - Supreme Court Institute to produce a simulation to showcase how such a court would work on a national level, illustrate why it is necessary, and, act as the stepping stone for potential Congressional legislation to create a court where election law issues can be resolved. The case will be briefed and argued under U.S. Supreme Court guidelines and an official opinion will be issued.
“This decision displayed judicial craft at the highest level and thus serves as a model how contentious election litigation can be resolved impartially according to law,” said Edward B. Foley, the Robert M. Duncan/Jones Day Designated Professor of Law and director of Election Law @ Moritz. “Anyone who reads the court’s analysis will find its treatment of the three legal issues in the case to be instructive if real litigation occurs over any of those issues. Given the structure of the three judge panel, its unanimous decision here is an example of non-partisan judging.”
The complete decision can be found at this link: http://moritzlaw.osu.edu/electionlaw/electioncourt/docs/081028_McCainvObamaFinal.pdf
For more information about the court, its participants, and commentary on the ruling, visit electionlaw.osu.edu.