At Georgetown University Law Center this morning, veteran advocates Walter Dellinger and Glen Nager squared off before a three-judge mock court panel in what could be something of a training exercise for the kind of litigation that may arise if the outcome of next month's presidential election is very, very close.
In the hypothetical case of McCain v. Obama, an intense snowstorm in Denver prompts the local election director to extend voting hours so that Denver voters can cast provisional ballots until 9 p.m. -- even though state law requires polls to close at 7 p.m. The ensuing battle over whether those 50,000 ballots can be counted gets to the Supreme Court just days before states must certify their electors.
Nager of Jones Day, arguing for John McCain, made an equal protection argument -- shades of Bush v. Gore -- that the Denver extension of voting hours treated different Colorado voters differently. O'Melveny & Myers' Dellinger, arguing for Barack Obama, asserted the case does not belong in the Supreme Court at all but should be decided by a politically accountable body. The judges -- former trial judge and current Duke Law School dean David Levi, Baker Botts partner and former Texas chief justice Thomas Phillips, and former D.C. Circuit chief judge Patricia Wald -- asked tough questions and reserved judgment before issuing a ruling in a few days.
The mock hearing was the brainchild of Ohio State University Moritz College of Law prof Edward Foley, an election law expert who is exploring alternatives for handling the kind of urgent, complex and highly political legal disputes that arise with increasing frequency in close elections. Foley spoke this morning of a close gubernatorial election in Minnesota in 1962 in which the candidates ultimately submitted their cases to a special "court" created just for that purpose. Replicating that model for a national presidential election would be difficult, Foley conceded. But he suggested that the private sector could create a shadow court composed of respected judges like those who participated today. If a presidential-level election dispute were to break out -- even next month -- the private court could weigh the issues and submit its findings in the form of an amicus curiae brief in the real dispute. "It might have some persuasive impact."
In remarks after the oral argument, Dellinger said the exercise had left him believing that if at all possible, such political disputes ought to stay out of federal courts altogether and be resolved by the politically accountable branches. Nager too felt that selecting a president should be a political matter, but if questions of law arise, the courts should not be reluctant to decide them.