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Election Law @ Moritz

Election Law @ Moritz

Election Court: McCain v. Obama

Could Bush v. Gore happen again? Yes. While the hanging chad is no more, other problems in the election system could once again lead to a court deciding the winner of an important election. Edward B. Foley, director of Election Law @ Moritz, has proposed removing such disputes from the traditional judicial system. The idea is simple: Create a non-partisan, specialized election court to be the final arbitrator of election disputes in the country. Such a court successfully resolved a dispute over the winner of the 1962 Minnesota gubernatorial race.

Final Decision posted October 28, 2008. See it and other documents below.

Law Clerks

  • Jennifer Dominguez
  • Carey Bollinger
  • Daniel Shuey

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

Final Decisions
Archived Webcast

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 will join with 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. The case will be briefed and argued under U.S. Supreme Court guidelines and an official opinion will be issued.

Contact Information

For information regarding the Election Court project or McCain v. Obama - a U.S. Supreme Court hypothetical (one hopes), please contact Barbara Peck, (614) 292-0283 or peck.5@osu.edu.

October 20, 2008 Simulation Materials

Key Participants

Chief Justice David F. Levi Chief Justice
David F. Levi
Dean and Professor of Law at Duke Law School;
former Chief Judge for the United States District Court in the Eastern District of California
Thomas R. Phillips Associate Justice
Thomas R. Phillips
retired Chief Justice of the Supreme Court of Texas;
currently with Baker Botts
Patricia Wald Associate Justice
Patricia M. Wald
former Chief Judge for the United States Court of Appeals for the D.C. Circuit;
former Judge for the International Criminal Tribunal
Glen D. Nager Presenting the argument on behalf of petitioners John McCain, et al
Glen D. Nager
Partner, Jones Day (Washington, D.C.);
Chairs of the Issues & Appeals practice at Jones Day;
has argued 12 cases before the U.S. Supreme Court
Walter Dellinger Presenting the argument on behalf of respondents Barack Obama, et al
Walter Dellinger
Partner, O'Melveny & Myers LLP;
Chair of the Appellate Practice at O'Melveny & Myers;
former Solicitor General of the United States
Edward B. Foley Co-Moderator
Edward B. Foley
Director Election Law @ Moritz
Robert M. Duncan/Jones Day Designated Professor of Law
Moritz College of Law
The Ohio State University
John Fortier Co-Moderator
John Fortier
Research Fellow



Edward B. Foley

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

Election Law @ Moritz, with co-sponsors AEI-Brookings Election Reform Project and the Supreme Court Institute at Georgetown's law school, will conduct simulated adjudication of a hypothetical case involving a dispute over the outcome of this year's presidential election. This experiment will test an idea proposed in 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.