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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Free & Fair

A November Hypothetical

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May 20, 2008

As part of the final exam for my Election Law students this spring, I created a hypothetical scenario involving a 2008 variation on the theme of Bush v. Gore. I picked Colorado as a possible swing state in a general presidential election between Senators McCain and Obama. With a Republican Secretary of State and a state supreme court dominated by Democrats, it has the potential for a political conflict comparable to the one between Katherine Harris and the Florida Supreme Court in 2000. And as the New York Times noted last week, Colorado conceivably could be the decisive state in achieving an Electoral College victory.

My hypothetical variation on Bush v. Gore did not involve hanging or dimpled chads. Instead, it involved the extension of polling hours by local election officials in Denver, but not surrounding suburbs, in response to an unusually severe ice storm that snarled rush hour traffic in the city. During this year’s primary season, we have seen the extension of polling hours as a result of bad weather in Maryland and Ohio, and so it is not farfetched that we might see something similar in November.

I constructed the hypothetical so that there were Equal Protection arguments based on Bush v. Gore on both sides of the case. I had the Colorado Supreme Court, by a 4-3 vote, supporting Obama’s position that extending polling hours in Denver promoted electoral equality by making up for the extra impediments that the city voters suffered as a result of especially bad traffic there. Conversely, I had the Secretary of State arguing along with McCain that the extension of polling hours violated Equal Protection because Coloradans outside Denver were not given the same opportunity as the city’s citizens to cast ballots after the regularly scheduled closing time of 7:00 pm.

The exam question called upon my students to play the role of Justice Kennedy’s law clerk, after the U.S. Supreme Court agreed to decide the merits of this case. Their assignment was to write a “bench memo” analyzing the legal issues before the Court and advising Justice Kennedy on how he should rule on those issues. The students were instructed that Justice Kennedy would want them to put aside, so far as humanly possible, any personal views—his or theirs—concerning the presidential candidates, partisan affiliations, or political considerations unrelated to a fair and impartial resolution of the case.

This exam question was intentionally challenging. I myself find the Equal Protection issues in the hypothetical to be tricky and uncertain in light of Bush v. Gore. Indeed, I’m not sure how, or even whether, this hypothetical fits within the taxonomy of potential Bush v. Gore claims I’ve developed previously. The hypothetical is complicated by the fact that the Equal Protection issues result from two stages of state action: first, the decision of Denver officials to extend polling hours (together with the refusal of the state’s judiciary to block this extension); and second, the decision of the Colorado Supreme Court to count the provisional ballots cast pursuant to the extension. Insofar as the hypothetical calls for further refinement of the taxonomy, it proves the truth of my prediction that analytic classification of potential Bush v. Gore claims will continue to evolve as each new election cycle presents new circumstances to contemplate. As with the bad weather and extension of polling hours during this year’s primary season, real-world events trigger the imagination of hypothetical cases that tease out different potential implications for the Bush v. Gore precedent.

Although I wrote the final exam before the U.S. Supreme Court decided the Indiana voter identification case, Crawford v. Marion County Election Board, that fractured decision does not clarify, much less answer, the Equal Protection issues in this exam hypothetical. For one thing, Crawford resolved only a “facial” challenge to Indiana’s voter ID statute, leaving open possible “as-applied” challenges to the context of specific provisional ballots cast because of lack of the required ID. The exam hypothetical, by contrast, involves an “as-applied” challenge to the counting of particular provisional ballots. Moreover, the constitutional claim in Crawford itself, which requires balancing the benefits and burdens of a voting rule that applies uniformly throughout the state, is very different from any Equal Protection claim based on Bush v. Gore concerning variation in the treatment of voters depending on the particular locality of their residence within the state. Thus, to the extent one feels uncertain about the proper resolution of the Equal Protection issues in the exam hypothetical, Crawford does little if anything to lessen that uncertainty.

It would be easy, moreover, to create additional hypothetical scenarios similar to this exam question but set in different potential swing states in this year’s presidential election. For Ohio, for example, one simply could reverse the positions of the Secretary of State and the state supreme court in a dispute over the extension of polling hours in Cleveland. In other words, one could imagine Ohio’s Secretary of State (a Democrat) seeking to certify a victory for Obama based on the counting of provisional ballots cast pursuant to an extension of polling hours, with the Ohio Supreme Court (comprised of all Republican members) ordering the disqualification of these ballots. This version of the hypothetical would get to the U.S. Supreme Court on a petition from the Democrats that to disqualify the provisional ballots, given the emergency circumstances in Cleveland that triggered the casting of them, would deny these provisional voters Equal Protection.

The Colorado-based exam question contained, in addition to its Equal Protection issues, an issue concerning the state legislature’s authority under Article II of the U.S. Constitution concerning the “manner” of appointing the state’s presidential electors. This Article II issue—whether the extension of polling hours in Denver contradicted the applicable state statute to an extent that violates Article II, or perhaps more precisely whether the counting of provisional ballots cast as a result of that polling hours extension, based on an interpretation of the state’s constitution, interferes with the state legislature’s authority to appoint presidential electors—is related (but not identical) to the Article II issue considered in Bush v. Gore itself, but relied upon only by three of the Justices in the majority there. The Ohio-based alternative hypothetical could also have its own Article II issue. Indeed, depending upon exactly how the Ohio-based hypothetical were construed (or, if it were a real case, how litigation over the counting of provisional ballots unfolded procedurally), this alternative scenario could have an Article II issue quite different from the Colorado-based one. (The hypothetical Ohio Supreme Court order disqualifying the provisional ballots, depending upon the exact details of that order, might be seen as contradicting a new state statute, Ohio Revised Code § 3515.08(A), which precludes the state judiciary from adjudicating contests over the results of a presidential election.) Moreover, tweaking either of these hypothetical scenarios a bit can cause the Equal Protection and Article II issues to interrelate in different ways.

The point here, however, is not to demonstrate the multifold varieties of novel and interesting twists on Bush v. Gore that one can imagine arising this November. It is unlikely, thank goodness, that any of them will actually occur. The point rather is that, if another electoral earthquake like the one in Florida in 2000 were to happen this year despite its improbability, would the U.S. Supreme Court be able to decide the new variation on Bush v. Gore in a way that appeared to both sides as impartial and fair—based on law, not politics? In other words, if the Justices themselves confronted the Colorado-based hypothetical, or any of the alternative ones imaginable, how well would they do?