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Commentary

McCain v. Obama: What's Next?

Ned Foley’s McCain v. Obama simulation has now yielded an opinion that Foley rightly describes as “thoughtful and rigorous”—one worthy of careful consideration by real courts deciding real cases on analogous facts. This Comment briefly addresses the most significant features of the opinion’s legal reasoning, and then turns to the question of what we may learn from the simulationabout specialized, bipartisan election tribunals.

The Law of McCain v. Obama

I agree with Foley that the “the most instructive aspect of the Court’s decision” is its Equal Protection analysis, and that will be the focus of my remarks here.

At oral argument, Glen Nager, counsel for McCain, pressed the thesis that accommodating snowstorm-affected voters in Denver County with a polling-hours extension, without giving an equivalent extension to similarly affected voters in other counties, was presumptively (or perhaps conclusively) unconstitutional. The Court did not think this inequality worthy of strict scrutiny. To explain why, it quoted Justice Scalia’s concurring opinion in Crawford v. Marion County Board of Elections, 128 S.Ct. 1610, 1626 (2008): “[W]eighing the burden of a nondiscriminatory voting law upon each voter and concomitantly requiring exceptions for vulnerable voters would effectively turn back decades of equal-protection jurisprudence.” McCain at 7. Like Justice Scalia, the McCain Court thought that the burden of voting requirements should be assessed from an aggregate, society-wide perspective, rather than from the point of view of individual, adversely affected voters. This seemingly arcane distinction will determine whether the federal courts get into the business of crafting “as applied” exceptions to voting laws. In Crawford,Justice Stevens (joined by Roberts and Kennedy) invited such lawsuits; Justice Scalia (joined by Alito and Thomas) said he would not entertain them; and Justices Souter, Breyer, and Ginsberg remained mum. It will be most interesting to see whether state attorneys defending voter ID laws against as-applied challenges trot out the unanimous McCain v. Obama opinion in defense of their position.

One senses that the McCain Court might have responded more sympathetically to an “individualized” equality claim if Colorado’s regulatory scheme had itself provided for individualized determinations and accommodations. The Court stressed that Colorado’s had given county officials front-line responsibility for dealing with voting emergencies, and that these officials “can deal only in general responses that affect the majority of voters in their districts.” McCain at 6. The county-level granularity, as it were, of practicable emergency accommodations under the state’s regulatory scheme made the Court extremely reluctant to find an equal protection violation based on the fact that individual snowstorm-affected voters ended up confronting different polling hours in different counties. Colorado’s scheme was not arbitrary, and any remedy mandating the coordination of polling-hour extensions across counties would have seriously disrupted it—arguably “flout[ing] the Constitution’s express commitment of the task [of election administration] to the States.” Id.at 7 (quoting Crawford, 128 S. Ct. at 1626 (Scalia, J., concurring in the judgment)).

If Colorado’s had provided for individualized accommodations to deal with emergencies (for example, a right to cast one’s ballot on the day after Election Day for voters who were unable to get to the polls on Election Day due to unforeseen circumstances), it might have been possible for a court to remedy cross-county inequalities by tweaking substantive standards or procedures in a manner that leaves the gist of the state’s regulatory scheme intact.

One last feature of the McCain equal protection analysis is worth mentioning: the judges had no use for Nager’s distinction between polling-place logjams caused by natural disasters, and problems caused more transparently by “state actors”—for example, pollworkers not showing up to work. See id. at 6. (At oral argument, Nager maintained that long lines and other inequalities caused by natural disasters could never give rise to an equal protection violation.) Nager’s approach represents a superficially plausible way of limiting the extent of federal court involvement in election administration, but as the McCain judges seem to have recognized, it is neither conceptually nor pragmatically sound. Conceptually, burdens on the exercise of fundamental rights in highly regulated environments are always the joint, interactive product of state law and natural and social conditions. The extent to which “acts of God” hinder the exercise of a right depends on the legal framework that the state has established (e.g., polling hours). Pragmatically, it would be odd to distinguish between, for example, voters who face long lines due to weather conditions and voters who face long lines because a poll worker overslept. To be sure, it is worth distinguishing between evanescent (one election only) and systemic, persistent problems, but as the oversleeping poll worker example suggests, this distinction is not well captured by Nager’s state-actor/act-of-God line.

What Does McCain v. Obama Teach Us About Election Courts?

Foley considers the trial run of his model for bipartisan election courts a clear success. He writes, “The unanimous decision in McCain v. Obama indicates that any resolution of a debatable Equal Protection (or Article II) issue in a contentious election case will seem more acceptable, and indeed worthy of respect, if it is demonstrably non-partisan[, i.e., decided unanimously by a court composed as this one was].” (Foley does allow, parenthetically, that this conclusion “must remain tentative until it is subjected to further evaluation.”)

My reaction is perhaps a bit more circumspect, for two reasons. First, I wonder whether the apparent ease with which these three judges arrived at their unanimous opinion was related to the fact that the 2008 presidential election did not, in fact, hang in the balance. The hypothetical nature of this exercise may have made it much easier for the judges simply to follow the law as they saw it, and to reach compromises where they saw things differently. Post-election litigation may be one setting where the mythically salutary properties of an “actual case or controversy” prove quite unhealthy. One may hope that real judges (whether on ordinary Article III courts or specialized, bipartisan election courts) who appreciate the risk of subconscious partisan bias when an election does hang in the balance will treat it as a good reason to follow the reasoning of bipartisan bodies that have issued opinions concerning analogous but hypothetical disputes.

Second, the McCain v. Obama simulation has not, as yet, provided us with evidence corroborating Foley’s hypothesis that “any resolution of a debatable . . . issue in a contentious election case will seem more acceptable, and indeed worthy of respect” to the extent that it comes as the unanimous decision of a bipartisan court composed as this one was. We may learn something about this by watching the reaction of real courts to McCain v. Obama. One measure of whether the opinion “commands respect” is whether real courts treat it as an important piece of persuasive authority.

Foley’s larger thesis—that the general public would find post-election dispute resolution by bipartisan election courts more acceptable than dispute resolution by the Supreme Court—might be put to the test using the “experimental vignette” research technique developed by political psychologists. Between McCain v. Obama, Brunner v. Ohio Republican Party,and Bush v. Gore, we now have ample raw material for the construction of vignettes that would test variation along three dimensions: (1) the consensual character of the decision (fractured or unanimous); (2) the partisan balance of the decisionmaking authority (even or tilted); and (3) the “name brand” of the decisionmakers (Supreme Court Justices, versus unfamiliar election court judges). The outpouring of interest in the McCain v. Obama simulation suggests that the results of the proposed study could substantially influence the development of institutions for post-election dispute resolution.

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