The decision is in: Barack Obama has won in the hypothetical case of McCain v. Obama, argued before a prestigious panel of former judges on Oct. 20, as we reported here.
The case posited a severe snowstorm hitting Denver on Election Day that snarled traffic and made it impossible for many voters to reach the polls by the state-required closing time of 7 p.m. Denver officials unilaterally kept the polling places open until 9 p.m., allowing 50,000 voters to cast provisional ballots. With the national outcome of the election hanging in the balance, John McCain goes to court, asserting that the Denver action is an equal protection violation -- shades of Bush v. Gore -- and also violates Article II of the U.S. Constitution.
At the moot courtroom at Georgetown University Law Center, Jones Day's Glen Nager argued for McCain, and O'Melveny & Myers' Walter Dellinger argued for Obama, before former D.C. Circuit chief judge Patricia Wald, former California U.S. District Judge David Levi, and former Texas Chief Justice Thomas Phillips.
In a unanimous per curiam ruling of the mock Supreme Court issued earlier this week, the panel decided that the equal protection claim made on behalf of McCain was insubstantial and that Denver election officials had acted reasonably to serve the needs of voters in their district. "While it is certainly true, as Petitioners argue, that uniform voting rules within a state are highly desirable, and purposeful deviations without cause may in some circumstances rise to the level of a constitutional violation, the realities of holding elections in 64 districts will occasionally mean that unexpected events like severe weather, power outages, and voting machine breakdowns may require immediate adjustments to general rules of time and place to serve the overarching goals of equal access to the ballot box and facilitation of maximum voter participation." The panel also rejected McCain's Article II claim that by allowing the ballots cast after the normal closing time to be counted, the Colorado Supreme Court usurped the state legislature's constitutional role in setting election rules.
Edward Foley, the Ohio State University College of Law election law expert who conceived the idea for the exercise, pronounced it a successful demonstration of how politically charged, election-deciding legal disputes can be handled convincingly if the panel making the decision is -- and is perceived to be -- nonpartisan. "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," Foley wrote in a post-decision analysis. Foley's goal was to test the feasibility of using special nonpartisan election courts to resolve such disputes, or at least to help the regular courts evaluate the issues.