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Free & Fair

McCain v. Obama, a U.S. Supreme Court hypothetical (one hopes)

In May, I posted on our Election Law @ Moritz website a hypothetical I gave my Election Law students as part of their final exam. Now, thanks to the co-sponsorship of the AEI-Brookings Election Reform Project and the Supreme Court Institute at Georgetown's law school, we are going to have an actual adjudication of this hypothetical case (or, more precisely, a revised version of the hypothetical). We are conducting this simulated adjudication to test an idea that I have proposed in my recent scholarship: that the public more likely would perceive that courts are fair and impartial in resolving lawsuits over the outcome of high-stakes elections if the courts that adjudicate these cases are specifically structured to be strictly bipartisan.

The panel of retired jurists that has agreed to adjudicate the hypothetical is truly stellar and follows the model that I set forth in my proposal: two judges, each identifiable as affiliated with one of the two major political parties while simultaneously having an impeccable reputation for judicial integrity, with a third judge selected by the mutual agreement of the first two. (This method of selecting the third judge makes the overall panel intrinsically neutral.) Our three-judge panel consists of Thomas Phillips, the former Chief Justice of the Texas Supreme Court, and Patricia Wald, the former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, with David Levi, former Chief Judge of the United States District Court for the Eastern District of California (and now Dean of Duke Law School), chosen by Justice Phillips and Judge Wald to be the third and presiding judge. I think all would agree that one could not ask for a better three-judge panel to simulate how a highly respected, inherently bipartisan court would handle a high-stakes lawsuit over the outcome of a major election.

We are equally blessed that two advocates of the highest reputation, with extensive experience in U.S. Supreme Court litigation, have agreed to argue this case before our panel. Glen Nager, who chairs the Issues & Appeals group at Jones Day, will present McCain's side of this hypothetical case. Walter Dellinger, who similarly chairs O'Melveny's appellate practice, will present Obama’s side of the case. As we explain in the stipulated Statement of the Case, neither advocate has been retained by the actual presidential campaigns for purposes of participating in this simulated adjudication, but both will zealously advocate their side of the case in accordance with professional norms, as if they really were representing their hypothetical clients.

The oral argument of this case will occur at 10:00 a.m., on Monday, October 20, at Georgetown's Hart Auditorium in McDougal Hall (600 New Jersey Ave., N.W., Washington, D.C. 20001). It's open to the public (no admission fee), and anyone who would like to attend is welcome to do so. (All information about this project, including a webcast of the oral argument for those unable to attend, will be collected at this web page.) It should be interesting "political theater," as well as an informative "social science experiment" of the proposed inherently bipartisan election court. We ask only that individuals planning to attend please RSVP to Tina Drake Zimmerman, draket@law.georgetown.edu, so that we can estimate the size of the audience.

For all those not yet familiar with the facts of this hypothetical (or who have understandably forgotten about it since May), the essence is that the outcome of this year's presidential election will turn on disputed provisional ballots from Colorado. These ballots were cast following an extension of polling hours in Denver due to an unusually severe winter storm on the afternoon of Election Day. The dispute concerns whether or not to count these ballots under applicable provisions of state and federal law.

It is not farfetched to think that Colorado will be "the swing state" this year, as pollster Stuart Rothenberg predicted last week. Nor is it farfetched that bad weather might cause an extension in polling hours, as happened during the primaries this year in Ohio and Maryland. Likewise, the partisan affiliations of Denver election officials, the Colorado Secretary of State, the justices of the Colorado Supreme Court, and the Governor, as well as the current partisan makeup of the state legislature's two houses — not to mention the content of the relevant provisions of the Colorado election code — all collectively conspire to make realistic a partisan battle over whether to count provisional ballots, were a storm-related extension of polling hours to occur. As I mentioned in May, however, this scenario is only one of many that one could concoct for various potential swing states, including Ohio, if it turns out that somewhere besides Colorado were to become the "Florida" of 2008.

One noteworthy feature of our McCain v. Obama hypothetical case is that it contains Equal Protection and Article II issues parallel to those in Bush v. Gore. As election experts well know, and most other members of the public will remember, the Equal Protection and Article II issues in Bush v. Gore arose in the context of the rules for determining whether a "dimpled" or "punctured" or "hanging" chad would count as a vote. In the Colorado hypothetical, there are no chads of any kind, but eliminating them does not eliminate the possibility of Equal Protection and Article II issues comparable to those in — and left unresolved by — Bush v. Gore. On the contrary, provisional ballots cast as a result of extending polling hours in storm-suffering Denver, but not elsewhere in Colorado, would trigger new and vexing Equal Protection and Article II issues.

Thus, for anyone with lingering doubts about whether the U.S. Supreme Court handled Bush v. Gore as best as it possibly could have (and apparently Justice O'Connor herself has expressed such doubts), our McCain v. Obama hypothetical offers a way to test the idea of a bipartisan election court, not just generally, but also specifically in the context of a case exactly parallel to Bush v. Gore: another disputed outcome in a presidential election, where the federal constitutional questions presented to the U.S. Supreme Court are essentially equivalent.

Will our distinguished bipartisan three-judge panel be unanimous or divided on how to handle these federal constitutional questions? If divided, will their disagreement be less rhetorically divisive than the impression left by the totality of opinion-writing in Bush v. Gore? More fundamentally, even if the panel splits 2-1, will the fact that the third and presiding judge was chosen by the other two cause the public to perceive that the resolution of the dispute was as fair as possible under the circumstances — and fairer than either if a conventional court would have decided it, or if the dispute had been left to Congress rather than a court to resolve? What is wonderful about this project's being a genuine experiment is that we don't know the answers to these questions in advance, and thus we truly expect to learn something valuable as a result of our three-judge panel's actual deliberations over this hypothetical case.

Our three-judge panel is planning to issue its decision in McCain v. Obama within 10 days of the oral argument, so that we all will have it before Election Day itself. An additional benefit of this pre-Election Day release relates to another aspect of the scholarship that underlies this project. Although I have suggested the enactment of legislation to give special bipartisan courts jurisdiction over lawsuits challenging the results of high-profile elections, I have also recognized that any such legislation is not likely soon, and certainly not before this year’s election. Consequently, I have proposed that the private sector create a "shadow court," or what I now prefer to call an "Amicus Court" (since it sounds friendlier), to deliberate in advance of a real court's decision in any high-stakes election dispute that would benefit from an inherently bipartisan tribunal. The Amicus Court's deliberations then could be submitted to the real court in the form of an amicus brief, with all the persuasive force that its reasoning would have by virtue of the Amicus Court's distinguished and inherently bipartisan membership.

Our McCain v. Obama simulated adjudication can be viewed as an early-stage potential "test drive" of the Amicus Court concept. To be clear, our three-judge panel for the McCain v. Obama hypothetical is adjudicating the case as if it has the full jurisdiction and authority of the U.S. Supreme Court in that case. (In other words, it is the U.S. Supreme Court for purposes of that single case.) It is not thinking of its role as a private-sector advisory body that would submit its deliberations to the actual nine-member Supreme Court that sits on First Street, N.E., in Washington, D.C. Still, the decision that it releases before Election Day may prove relevant to the Amicus Court concept in the following way. Suppose that, despite all hope to the contrary, after Election Day litigation really does occur over the outcome of this year's presidential election, either in Colorado or elsewhere. Then, our three-judge panel's decision in the hypothetical McCain v. Obama may serve as a form of "non-binding, but persuasive authority" for the real court confronted with the real case. Even if the facts and issues in the real post-Election Day McCain v. Obama (or Obama v. McCain) don't exactly match the hypothetical that we have devised, our distinguished three-judge panel's treatment of the issues in the hypothetical McCain v. Obama may be analogous enough, and sufficiently powerful in its deliberative reasoning, that the real court will wish to take advantage of its wisdom. After all, a precedent from one state supreme court (or one federal appeals court) need not be "on all fours" with the case pending before another court for that precedent to be relevant and valuable, even though it is obviously not binding. In the same way, the actual decision in our hypothetical McCain v. Obama may be influential in the resolution of any real dispute that arises after Election Day. If so, and insofar as this influence comes from the fact that our three-judge panel in McCain v. Obama is inherently bipartisan in its composition, comprising retired jurists with exceptionally high reputations of judicial integrity, then this influence will show how the Amicus Court similarly might work.

In short, I must say that I find it incredibly exciting and gratifying that scholarly ideas can be "field tested" in this way. Whether as a model of an official election court enacted into law as a government body, or as a prototype of the private-sector Amicus Court, the simulated adjudication of McCain v. Obama will be an experiment of the core idea that an inherently bipartisan tribunal can help improve public perception concerning the resolution of election disputes. It is not often that a scholar's work has the opportunity to be put in practice in this way.

Of course, I'm indebted to many other individuals for helping to develop this scholarship. I will be thanking them publicly in connection with the materials and program we are developing for the October 20 oral argument. Here, it is worth reflecting that the idea of bipartisan election courts originated in the research that my Moritz colleagues and I undertook for From Registration to Recounts, was initially presented in a paper presented at a Stanford Law School symposium, and then crystallized in its "shadow" or "Amicus" court form in another paper presented to a Tobin Project workshop. The idea has been refined and "sharpened" considerably as it has progressed to the current stage of preparing for our three-judge panel's adjudication of McCain v. Obama. It will be interesting to see what happens to the idea in the aftermath of this adjudication.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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