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Unanimous Decision in McCain v. Obama (hypothetical)

The specially structured 3-Justice Court has released its unanimous decision in the McCain v. Obama simulated adjudication.  The Court ruled that the political question doctrine was inapplicable in the context of the particular case and thus did not deprive the Court of jurisdiction to consider the Equal Protection and Article II questions presented.  On the merits, the Court rejected both the Equal Protection and Article II challenges to the (hypothetical) Colorado Supreme Court decision. 

As one involved in developing the McCain v. Obama exercise, writing immediately upon the release of the Court’s decision, I am aware that this initial analysis inevitably lacks the benefit of critical distance and reflection. Nonetheless, the following aspects of the decision are striking.

First, its unanimity and anonymity. It was by no means inevitable that the three-Justice Court would be unanimous. As explained previously, the panel was structured intentionally to have two Justices each of whose background showed an affiliation with one of the two major political parties. (These two then mutually selected the third, neutral Justice.) These two Justices were chosen because of their reputation for judicial integrity and intellect. Consequently, there was the hope that, in their effort to decide the case according to law and not politics, they might agree. But there was no guarantee. The facts of the hypothetical were constructed in an effort to be balanced between the two sides of the case, giving each side a fighting chance to prevail—and thus the possibility of each side getting one vote in a 2-1 split decision from the Court.

That is not, however, how it turned out. We do not know the internal dynamics among the members of the panel, but there is no dissent, and the opinion does not read as if it was difficult for the three Justices to come to an agreement. Consequently, there is no way that the Court’s decision can be considered a political rather than legal one.

Moreover, and perhaps this may be reading too much into the “per curiam” designation, but the fact that no single Justice is identified as the author of the opinion might be an extra step to make the decision impartial. The opinion speaks equally for all the Justices, for no single Justice more than the others. That anonymity increases its neutrality—at least in effect, if not by design. Given the impression that one sometimes has that the most important fact about an election case is the identity of the judge (or judges) to whom it is assigned, it is a welcome sign of this McCain v. Obama decision that it conveys the opposite message: the law is the same regardless of the identity of the individual jurists who happen to sit on the panel that issues the decision.

Second, its judicial craft. The opinion is relatively short: ten single-spaced pages. But it is thoughtful and rigorous. The Justices went beyond the precedents cited to them. They articulate clear and cogent views on the three legal issues they discuss: (1) the political question doctrine; (2) Equal Protection; and (3) Article II. Were this a real case, there is no doubt that this opinion—simply by virtue of the power of its reasoning and exposition—would be cited frequently as a well-respected precedent in subsequent cases. It remains to be seen whether, even as an analysis of a hypothetical set of facts, its reasoning will be cited as worthy of emulation in future actual cases raising similar issues.

Third, its “political question doctrine” holding. Walter Dellinger, on behalf of respondents (including Barack Obama), pressed first and hardest on the argument that the Court should dismiss the case as “improvidently granted” on the ground that, involving a presidential election, the dispute belonged exclusively to Congress and thus was beyond the Court’s power. The Court emphatically rejected this proposition—although it ultimately did no damage to Dellinger’s position, since he won on the merits.

The Court’s analysis of the political question doctrine’s potential applicability to this case is a careful consideration of the relevant precedents, pointing to the precise posture of the legal issues in the particular case. The Court emphasizes that it does not decide “the question of who should win the presidential election or who should be on Colorado’s slate of presidential electors.” Instead, the legal matter before the Court is “whether certain votes cast in Denver pursuant to a localized poll-hour extension can be counted in the Secretary of State’s certification of results under federal law.” Moreover, the Court repeatedly notes that it does not know which presidential candidate will prevail if these provisional ballots are counted: “It bears repeating that we are rendering our opinion without knowledge of whom the provisional ballots ultimately will favor in the presidential election as well as the many other election [races] included on the Denver November ballot.” This language, it seems, is designed to underscore the legal, rather than political, nature of the Court’s consideration of the case.

The Court sees its resolution of the Equal Protection and Article II issues on the merits as a straightforward exercise of its power to interpret the Constitution in the context of a conventional legal dispute under the doctrine of Marbury v. Madison. The Court implicitly acknowledges that there might be some specific circumstances in which it would be inappropriate for there to be judicial interference with congressional proceedings concerning the transmission of Electoral College votes from the states, just as the Court may not interfere with the U.S. Senate’s authority to seat one of its members—and its citation to Roudebush v. Hartke, 405 U.S. 15 (1972), for that analogy is an insightful one. But preliminary matters concerning the counting of ballots cast by citizens are appropriate for judicial resolution, and indeed the Court describes as “astonishing” the contention that it could not consider an Equal Protection claim arising in that context.

Fourth, its Equal Protection holding. Perhaps the most instructive aspect of the Court’s decision will prove to be its Equal Protection analysis. As I have written previously, this is an especially murky area of election law, which could greatly benefit from increased clarity. This decision provides a good measure of that, which if followed in actual cases would be applicable to non-presidential as well as presidential elections.

The Court rejected a formalistic approach to Equal Protection analysis, looking instead at the functional equivalence of voting opportunities among citizens. It gives flexibility to state and local election administrators to implement their applicable election codes in a way that avoids micro-management from the federal judiciary pursuant to the Fourteenth Amendment. The unanimous opinion cited Justice Scalia’s concurrence in Crawford (the Indiana voter identification case), as well as the longstanding notion that there must be “a little play in [the] joints” in the administration of election law.

This is not to say that the Court’s approach would give the states a carte blanche to treat their voting citizens however they wished. Rather, the Court’s approach calls for a careful attention to the particular facts of each case. But when the extension of polling hours in one specific location was “a reasonable response to an unanticipated and location-specific natural phenomenon” that ended up “merely in bringing to par” voters in the affected locality—rather than “conferring a preferential impact or disadvantage”—the Court would not invalidate the administrative conduct in question.

This opinion, of course, does not mean that states cannot do better to provide clear guidance in their election codes on how to handle emergency circumstances. The Court observes that “uniform voting rules within a state are highly desirable.” But, as the Court also notes, emergencies can and do happen. And if state law leaves to localities the responsibility for responding to emergencies, federal constitutional law will not invalidate those responses when they can be seen “to serve the overarching goals of equal access to the ballot box and the facilitation of maximum voter participation.”

Interestingly, the Court’s opinion consigns Bush v. Gore to a single footnote. It writes that Bush v. Gore involved a distinct and different “sub-category of election cases,” where “large numbers of local officials applied an indeterminate standard throughout the state over a period of time.” By contrast, the single decision to keep the polls open in Denver for two extra hours was “one unambiguous rule . . . for one district and no further discretion was permitted.” Thus, according to the Court, even if Bush v. Gore had not been explicitly limited to its own circumstances (as it was), it still “would have little precedential force” in this separate context. This distinction is an altogether reasonable one. Nonetheless, it remains noticeable that, both during the oral argument of this case and now in this written decision, there seems to be a desire to make references to that precedent as inconspicuous as possible. Others have observed that Bush v. Gore sometimes seems the “Lord Voldemort” of Court decisions—one almost “dares not speak its name”—and this McCain v. Obama adjudication tends to support that observation to a considerable degree.

Fifth, its Article II holding. Without explicitly saying so, the Court’s opinion appears to embrace the position of the Bush v. Gore dissenters on this issue. The Court accepts, for sake of argument, that there is some Article II constraint on what a state supreme court may do in relationship to interpreting a state’s election code. But the Court here has little difficulty in finding that the (hypothetical) majority opinion of the Colorado Supreme Court did not exceed that outer limit, whatever it may be.

This result is potentially significant if it were followed in subsequent cases. It seems unlikely that the exact same approach used in Chief Justice Rehnquist’s concurrence in Bush v. Gore would accept the state supreme court’s decision here. The Colorado election code says that polls close at 7 p.m. and explicitly adds: “Any person arriving after 7 p.m. shall not be entitled to vote.” Nonetheless, the three-Justice Court here unanimously concluded that the state supreme court was entitled to view this language as “merely ‘a general rule,’ not a blanket prohibition against local initiative to protect voter access in exigent circumstances.” The Court pointed to the “liberal construction” provision of the Colorado election code as a basis on which the state supreme court was entitled to rely for this flexible interpretation of the superficially rigid poll-closing language. Although the Court could have rejected reliance on this “liberal construction” provision had it wished to do so, it evidently did not want to second-guess state court rulings too closely: “We cannot say that this interpretation was so novel or so strained as to fall short of constituting a ‘fair reading’ of state law.”

In sum, it seems fair to say that this non-partisan unanimous three-Justice ruling reflects “lessons learned” in the aftermath of Bush v. Gore, even though the opinion contains no explicit critique of that decision. For one thing, this McCain v. Obama decision’s rejection of the political question doctrine argument is entirely consistent with Bush v. Gore and, in some sense, is a reflection on the fact that there is no going back to a world (if it ever existed) where the federal judiciary lacked power to consider legal issues decided by state supreme courts in this kind of context. Nonetheless, the McCain v. Obama decision reflects a return to the more generally prevalent relationship of federal judicial involvement in the administration of state election law prior to Bush v. Gore—a relationship that sees federal judicial oversight as a narrowly limited exception in keeping with respect for state autonomy. But perhaps most significantly—and in accordance with the hypothesis that this experimental simulation was designed to test (but a conclusion that must remain tentative until it is subjected to further evaluation)—this 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.

This unanimous decision surely meets this criterion of demonstrable non-partisanship. It stands as a model for how “the rule of law” can operate in highly polarized election cases. It remains to be seen how well this model can be replicated in real cases.

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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