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.

This unanimous decision stands as a model for how “the rule of law” can operate in highly polarized election cases.

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.

Over the next two weeks, I will be engaged in two related endeavors that examine disputed elections from opposite temporal perspectives. One week from today (Tuesday, October 14), I will deliver a lecture on the history of disputed elections. Then, the following Monday, I will be in D.C. to observe the oral argument in McCain v. Obama, which involves a hypothetical dispute over ballots cast in the very near future.

Bush v. Gore in an historical mirror

The historical lecture will go all the way back to our nation’s very beginning, focusing on the 1792 gubernatorial election in New York between George Clinton, the incumbent Democratic-Republican, and John Jay, the Federalist challenger (who was serving at the time as the first Chief Justice of the United States). The dispute over this election truly was our nation’s first Bush v. Gore. The parallels are striking. The two candidates “lawyered up” then, as they did in 2000. On both sides, there were organized efforts to recruit legal luminaries to press their partisan position. As one Jay biographer has written, “every lawyer” in New York City “rummaged in his books for legal arguments.”

So if someone says that the battle over ballots in Florida eight years ago was unprecedented for the army of lawyers each side employed, don’t you believe it. While the lawyers then had no CNN for pitching their legal positions to the public, one of Jay’s legal lieutenants reported that the other side was “stuffing news papers with dissertations” on the dispute, but not to worry because a “refutation” from their “own side” would “appear in tomorrow’s paper.” Indeed, a multitude of pamphlets and broadsides was written to support each candidate, and the news printers were happy to circulate them to an aroused citizenry.

Aaron Burr, in defending Clinton’s position, was the James Baker of his day, while Rufus King (like Burr, a U.S. Senator from New York at the time) was Jay’s Warren Christopher, or, perhaps more apt, Ron Klain (based on the prominence of his role for Gore, as recently portrayed in HBO’s Recount movie). Moreover, Burr and King made essentially the same arguments as their modern-day counterparts. Burr, along with the other lawyers he recruited to Clinton’s side, including Edmund Randolph (then serving as the first U.S. Attorney General), made the argument that election statutes must be strictly followed in order to protect the integrity of elections. King and the rest of Jay’s legal team, which included a prominent former judge in Philadelphia, argued that technical breaches of election statutes should not be permitted to disenfranchise innocent voters. When King wrote that “election law is intended to render effectual the constitutional right of suffrage” and “should therefore be construed liberally” so that “the means should be in subordination to that end,” Gore would have been happy to have those words in his own legal briefs.

It is not merely an historical curiosity that 1792 foreshadows 2000. Rather, I suggest that every high-stakes disputed election has the potential for sparking the basic debate between the Burr-Baker strict constructionist position and the King-Klain voter-protection view. Each side, regardless of its prior ideological commitments, will take whichever of these jurisprudential positions will support a victory in the particular election at hand.

In the 200-plus years since 1792, our constitutional democracy has not advanced beyond the simple repetition of this basic jurisprudential debate. The reason is that we lack an institution capable of developing an impartial body of precedent on how to resolve disputed elections. The specific contest in 1792 ended when the state’s Canvassing Committee, whose decisions by statute were final and unreviewable, ruled in favor of Clinton by a partisan 7-4 vote. The result was unsatisfactory then, precisely because it was so partisan.

In 2000, the Supreme Court, perhaps fearing the partisanship that would beset a congressional resolution of the presidential election, took it upon itself to attempt a resolution according to its interpretation of the Constitution. But the 5-4 decision caused the Court, rightly or wrongly, to be accused of its own partisanship. It wasn’t able to maintain itself as institutionally “above the fray,” because it wasn’t institutionally designed to handle the uniquely polarizing case of two presidential candidates each claiming a legal entitlement to a declaration of electoral victory.

I believe there are valuable historical lessons in the New York election of 1792 on why we still lack the institution necessary for this category of cases. Those lessons, I conjecture, concern the almost immediate development of two-party politics despite the desire of our Constitution’s Framers to avoid that development. But I’ll leave those points for Tuesday’s lecture.

Testing the Potential Future of Bush v. Gore

What is most important, looking forward, is how ready our system of constitutional democracy is to handle the next Bush v. Gore, whenever it may come. It is unlikely to happen this year, for the simple reason that the odds are against it happening in any given year. But come again it will, at some point in nation’s future. There is a story to tell about how our system progressed (if one can call it that) from 1792 to 1876, when the dispute over the Hayes-Tilden presidential election necessitated a special commission—just as the story progressed (or at least moved through time) from 1876 to 2000. My Moritz colleague Steve Huefner and I are in the process of writing a book-length chronicle of major disputed elections in U.S. history—a chronicle that has some interesting tales along the way, of which 1792 is the only the starting point. But whenever that book goes to press, there will be new chapters to be written in subsequent editions, and what will they say about the improvement of our society’s ability to resolve disputed elections?

One specific question for the future is, what effect will the legal precedent of Bush v. Gore have in the next dispute? The McCain v. Obama simulated adjudication is designed, in part, to shed some light on that question. (In my last comment I recounted the genesis and goals of McCain v. Obama, in which hypothetically the outcome of this year’s election turns on whether or not to count provisional ballots cast in Colorado as a result of a severe storm that triggers an extension of polling hours in Denver.) Even now, I can tell that the indeterminacy of the Equal Protection principle articulated in Bush v. Gore poses a challenge to any court confronted with a future disputed election that requires consideration of that precedent. In my role as “Acting Clerk of Court” for the McCain v. Obama simulation, I have prepared a “Neutral Memorandum of Law” for the benefit of the participating attorneys and jurists. Undertaking that task has caused me to realize, even more than I did when I responded to Dan Lowenstein’s critique of my initial effort to classify potential Equal Protection claims based on Bush v. Gore, just how fluid that classification must be until it gets pinned down by future precedents. (It’s hard to know conceptually how to treat the storm-induced provisional ballots under Bush v. Gore for reasons I endeavor to explain, much less to decide definitely which side should win under that precedent.)

But if McCain v. Obama truly has powerful arguments on both sides, as my analysis in the Neutral Memorandum of Law proffers for the consideration of the counsel and Court, then the openness of the law places all the more of a premium on the need for an impartial tribunal. In McCain v. Obama, the attorneys can appeal to the same “first principles” of election law—strict enforcement to protect the integrity of elections, or flexible interpretation to avoid voter disenfranchisement—as their predecessors did in Bush v. Gore, and before them their predecessors in the disputed election of 1792. Without a structurally impartial tribunal, the decision of which side’s “first principles” should prevail is likely to seem just as arbitrary, and thus unsatisfactory, as the previous decisions did to many contemporaneous observers. What is more, there can be no advancement from one dispute to the next; each time, the two sides are condemned to repeat the same warring first principles, with another apparently arbitrary ruling by a body perceived by many to be partial to one side.

The avoidance of this dispiriting repetition is the hope of the institutional experiment underlying the McCain v. Obama simulation. If the institution that adjudicates the dispute is structurally impartial, and perceived as such, then its decision has a chance of being accepted as principled. Moreover, that principled decision can serve as precedent in the next dispute. It might be that even a structurally impartial tribunal will not always side with the same “first principle”: strict enforcement to protect the integrity of elections, or flexible interpretation to avoid voter disenfranchisement. The particular facts of each dispute might cause the impartial tribunal to lean towards one of these two competing “first principles” in some cases, while tipping towards the other when the facts are different. But if the tribunal remains truly impartial over time, it will be able to explain why it leans one way sometimes but not others. By this process, a principled corpus of precedent concerning disputed elections potentially could develop, and ultimately the future of disputed elections might look very different from the past.

But McCain v. Obama is an experiment, and as with any genuine experiment we cannot predict how it will turn out. So, over the next few weeks, I hope that we can learn from the future as well as the past.

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.

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.

As part of the final exam for my Election Law students this spring, I created a hypothetical scenario involving a 2008 variation on the theme of Bush v. Gore. I picked Colorado as a possible swing state in a general presidential election between Senators McCain and Obama. With a Republican Secretary of State and a state supreme court dominated by Democrats, it has the potential for a political conflict comparable to the one between Katherine Harris and the Florida Supreme Court in 2000. And as the New York Times noted last week, Colorado conceivably could be the decisive state in achieving an Electoral College victory.

My hypothetical variation on Bush v. Gore did not involve hanging or dimpled chads. Instead, it involved the extension of polling hours by local election officials in Denver, but not surrounding suburbs, in response to an unusually severe ice storm that snarled rush hour traffic in the city. During this year’s primary season, we have seen the extension of polling hours as a result of bad weather in Maryland and Ohio, and so it is not farfetched that we might see something similar in November.

I constructed the hypothetical so that there were Equal Protection arguments based on Bush v. Gore on both sides of the case. I had the Colorado Supreme Court, by a 4-3 vote, supporting Obama’s position that extending polling hours in Denver promoted electoral equality by making up for the extra impediments that the city voters suffered as a result of especially bad traffic there. Conversely, I had the Secretary of State arguing along with McCain that the extension of polling hours violated Equal Protection because Coloradans outside Denver were not given the same opportunity as the city’s citizens to cast ballots after the regularly scheduled closing time of 7:00 pm.

The exam question called upon my students to play the role of Justice Kennedy’s law clerk, after the U.S. Supreme Court agreed to decide the merits of this case. Their assignment was to write a “bench memo” analyzing the legal issues before the Court and advising Justice Kennedy on how he should rule on those issues. The students were instructed that Justice Kennedy would want them to put aside, so far as humanly possible, any personal views—his or theirs—concerning the presidential candidates, partisan affiliations, or political considerations unrelated to a fair and impartial resolution of the case.

This exam question was intentionally challenging. I myself find the Equal Protection issues in the hypothetical to be tricky and uncertain in light of Bush v. Gore. Indeed, I’m not sure how, or even whether, this hypothetical fits within the taxonomy of potential Bush v. Gore claims I’ve developed previously. The hypothetical is complicated by the fact that the Equal Protection issues result from two stages of state action: first, the decision of Denver officials to extend polling hours (together with the refusal of the state’s judiciary to block this extension); and second, the decision of the Colorado Supreme Court to count the provisional ballots cast pursuant to the extension. Insofar as the hypothetical calls for further refinement of the taxonomy, it proves the truth of my prediction that analytic classification of potential Bush v. Gore claims will continue to evolve as each new election cycle presents new circumstances to contemplate. As with the bad weather and extension of polling hours during this year’s primary season, real-world events trigger the imagination of hypothetical cases that tease out different potential implications for the Bush v. Gore precedent.

Although I wrote the final exam before the U.S. Supreme Court decided the Indiana voter identification case, Crawford v. Marion County Election Board, that fractured decision does not clarify, much less answer, the Equal Protection issues in this exam hypothetical. For one thing, Crawford resolved only a “facial” challenge to Indiana’s voter ID statute, leaving open possible “as-applied” challenges to the context of specific provisional ballots cast because of lack of the required ID. The exam hypothetical, by contrast, involves an “as-applied” challenge to the counting of particular provisional ballots. Moreover, the constitutional claim in Crawford itself, which requires balancing the benefits and burdens of a voting rule that applies uniformly throughout the state, is very different from any Equal Protection claim based on Bush v. Gore concerning variation in the treatment of voters depending on the particular locality of their residence within the state. Thus, to the extent one feels uncertain about the proper resolution of the Equal Protection issues in the exam hypothetical, Crawford does little if anything to lessen that uncertainty.

It would be easy, moreover, to create additional hypothetical scenarios similar to this exam question but set in different potential swing states in this year’s presidential election. For Ohio, for example, one simply could reverse the positions of the Secretary of State and the state supreme court in a dispute over the extension of polling hours in Cleveland. In other words, one could imagine Ohio’s Secretary of State (a Democrat) seeking to certify a victory for Obama based on the counting of provisional ballots cast pursuant to an extension of polling hours, with the Ohio Supreme Court (comprised of all Republican members) ordering the disqualification of these ballots. This version of the hypothetical would get to the U.S. Supreme Court on a petition from the Democrats that to disqualify the provisional ballots, given the emergency circumstances in Cleveland that triggered the casting of them, would deny these provisional voters Equal Protection.

The Colorado-based exam question contained, in addition to its Equal Protection issues, an issue concerning the state legislature’s authority under Article II of the U.S. Constitution concerning the “manner” of appointing the state’s presidential electors. This Article II issue—whether the extension of polling hours in Denver contradicted the applicable state statute to an extent that violates Article II, or perhaps more precisely whether the counting of provisional ballots cast as a result of that polling hours extension, based on an interpretation of the state’s constitution, interferes with the state legislature’s authority to appoint presidential electors—is related (but not identical) to the Article II issue considered in Bush v. Gore itself, but relied upon only by three of the Justices in the majority there. The Ohio-based alternative hypothetical could also have its own Article II issue. Indeed, depending upon exactly how the Ohio-based hypothetical were construed (or, if it were a real case, how litigation over the counting of provisional ballots unfolded procedurally), this alternative scenario could have an Article II issue quite different from the Colorado-based one. (The hypothetical Ohio Supreme Court order disqualifying the provisional ballots, depending upon the exact details of that order, might be seen as contradicting a new state statute, Ohio Revised Code § 3515.08(A), which precludes the state judiciary from adjudicating contests over the results of a presidential election.) Moreover, tweaking either of these hypothetical scenarios a bit can cause the Equal Protection and Article II issues to interrelate in different ways.

The point here, however, is not to demonstrate the multifold varieties of novel and interesting twists on Bush v. Gore that one can imagine arising this November. It is unlikely, thank goodness, that any of them will actually occur. The point rather is that, if another electoral earthquake like the one in Florida in 2000 were to happen this year despite its improbability, would the U.S. Supreme Court be able to decide the new variation on Bush v. Gore in a way that appeared to both sides as impartial and fair—based on law, not politics? In other words, if the Justices themselves confronted the Colorado-based hypothetical, or any of the alternative ones imaginable, how well would they do?

This piece was prepared for a meeting of the Tobin Project’s Institutions of Democracy Working Group on June 23, 2007

If legislatures won’t create fair bipartisan courts to adjudicate election contests, then the private sector should create a “shadow” Elections Court to show how this tribunal would work. Its “amicus opinions” might influence actual judicial decisions or else highlight the need for legislative reform.

Contested elections need specialized courts, ones structured to be strictly bipartisan. That is the lesson of research into the voting administration laws of five Great Lakes states (Illinois, Michigan, Minnesota, Ohio, and Wisconsin), sponsored by the Joyce Foundation, as explained in a recent paper.

This lesson is especially applicable to gubernatorial and other major elections, where the stakes are particularly high. In the 1962 race for Governor of Minnesota, for example, the state’s supreme court split three-to-two along party lines on a dispute over error correction in the canvassing of returns. The upright citizens of the North Star State were so embarrassed by this politicized ruling that the two candidates subsequently agreed to create their own bipartisan court to adjudicate the recount that followed the canvass.

It would be nice if in every contested election, due to a sense of fair play, the competing candidates agreed on a set of procedures for resolving their dispute. But the increased acrimony of contemporary politics would likely prevent the repeat of such an agreement even in Minnesota, where partisanship remains relatively less hard-edged than elsewhere.

Consequently, if there are to be fair procedures for resolving a contested election, they need to exist before the ballots are cast and counted. There is a widespread consensus among election law scholars that fair procedures in this context include clear and specific rules spelled out in advance for handling any issue that might arise. But another important lesson of the five-state study identified at the outset is that it is impossible for any state’s election code to stipulate the correct outcome to every dispute that could possibly occur. Moreover, even if the state’s code writers were omnisciently clairvoyant, malleable constitutional clauses in the hands of politically motivated judges could render irrelevant a perfectly crafted code. For this reason, as important as it is to write an election code as best as one can, it is even more important to create an evenly bipartisan tribunal for implementing this code when it is invoked in a contested election. That way both sides will have equal representation in the event that politics influences how the judges view the merits.

Of course, a tribunal with an even number of members is a recipe for stalemate. The experiences of the FEC and EAC confirm as much. Thus, a well-structured bipartisan tribunal would have a mechanism whereby the even number of equally divided members would agree upon an additional tiebreaker member. For example, if the bipartisan tribunal consisted of two Democrats and two Republicans (chosen perhaps by the majority and minority leaders in each house of the state’s legislature), then these four members would select a mutually agreeable fifth member—or face the prospect that any election contest resulting in a tie vote would be resolved by a coin toss.

A Legislative Proposal. Accordingly, I would favor legislation in each state to place the authority to adjudicate election contests in a specialized Elections Court structured along these lines, rather than in the state’s conventional supreme court (which, whether elected or appointed, is unlikely to be inherently and evenly bipartisan in the same way). Membership on this Elections Court obviously would not be a full-time job. If a state were lucky, years or even decades would pass before it would need to convene for a contest in a major statewide race. But the infrequency of its active docket would not prevent selecting its members on a regular basis, to be ready in the event that a contest occurred. Once a decade, or as vacancies occurred, new members could be designated according to established procedures. This body would be the fairest one possible for resolving any future disputed election—at least in the absence of a mutually agreeable alternative, as developed in Minnesota’s 1962 gubernatorial election.

This legislative proposal, however, has little chance of being adopted under current conditions. To the extent that legislatures engage in reform of their state’s voting procedures, they tend to overlook the procedures for adjudicating election contests and focus instead on the procedures for casting or counting ballots (or on pre-voting procedures, like registration). One possible explanation may be that election administrators also tend to put a lower priority on the rules and procedures for judicial adjudication of election contests: not only are contests relatively infrequent, but they are outside the direct authority of the administrators themselves. Therefore, when lobbying their state’s legislatures for reforms, the administrators focus on more immediate concerns. Their priorities are not necessarily misplaced and, indeed, may reduce the number of contested elections even further. (Administrative reforms that lower the likelihood of problems in the casting and counting of ballots should remove potential grounds for fighting over the results in a close race.) Still, these reforms do not concern the procedures for resolving a contested election if and when one does occur.

The state’s judiciary, too, is unlikely to lobby the legislature for reform of election contest procedures. Despite their importance, election contests are simply too small a fraction of the judiciary’s overall docket, encompassing criminal cases and the full range of civil litigation, to warrant the judiciary’s priority when it comes to lobbying the legislature for reforms. In any event, the state’s supreme court may be reluctant to support a reform that removes election contests from its jurisdiction by placing them in a specialized tribunal.

No other well-organized group appears to have the political clout to push this proposal through the legislature. “Good government” groups, like the League of Women Voters, might come to embrace its merits, but they are unlikely to be successful—especially if the judiciary is not merely indifferent, but instead actively opposes removing these cases from the supreme court’s jurisdiction.

Reform Without Legislation. What then? My suggestion is for proponents of this reform to create their own “shadow” Elections Court that will model the behavior of an appropriately bipartisan tribunal. (This suggestion is inspired in part by FactCheck.org insofar as it attempts to develop a private-sector institution that will exert a quasi-regulatory pressure on the election-related conduct of political actors, in a context where regulation by a government body is infeasible or suboptimal.) This shadow court will issue its own opinions, which although lacking authority may embarrass existing courts to emulate the model. These opinions could even be submitted as amicus briefs to the actual courts faced with the task of adjudicating election contests. Over time, these amicus briefs might come to have an especially enhanced status in the eyes of the actual courts, assuming that the shadow court develops a strong reputation for scrupulous bipartisanship (and also maintains a high level of professional excellence in its amicus submissions).

Moreover, if and when an actual court deviates from an amicus opinion of the shadow court—and the actual court’s decision appears to be motivated by mere partisanship—this deviation might generate some momentum for the proposal to assign election contests to a tribunal structured along the lines of the shadow court. Especially if the shadow court is held in exceptionally high regard (being the bluest of blue-ribbon panels), the impetus may exist to replace the cravenly political supreme court with a fair tribunal that looks like the shadow court. In this way, the creation of a fair bipartisan Elections Court, although entirely powerless at first, may acquire real power simply by modeling the necessary fairness; call it the “Field of Dreams” approach to election law reform.

The key, then, is the composition of this shadow court. It must track the structure of the legislative proposal it is designed to support (and for which it serves as a second-best substitute in the interim). Thus, it must have an equal number of Democrats and Republicans, and it must choose a tiebreaking member. If the election reform community embraces this idea, it must vigilantly adhere to this structure, so that the shadow court can become perceived as inherently and strictly bipartisan.

This shadow court could be nationwide in the scope of its operations. In other words, whenever a significant election contest arises in any state, the shadow court would convene and issue its own “decision” in the case. The members of the shadow court (other than the tiebreaking member) could be selected with input from the DNC and RNC, or some other method could be developed to assure even bipartisanship. Members could be law professors, former public officials, or other lawyers who could perform the role of a judge in an election contest. The goal would be to select members whose participation on this model tribunal, as well as their prior careers, would enhance the shadow court’s public reputation for bipartisan fairness.

If well selected, the members of the shadow court would strive hard to sublimate their partisan affiliations for the sake of resolving the contest as objectively as they can according to the existing law of the state in question. The fact that the members of the shadow court would have a national perspective might help minimize the temptation to twist the available law to fit a desired partisan outcome. It would be hoped, too, that the tiebreaker member of the shadow court would be capable of exercising leadership to minimize dissent among other members of this model tribunal. (Ideally, the frequency of dissenting opinions on this shadow court would be much lower than their frequency among actual supreme courts adjudicating election contests.) Temperament certainly would be a factor in the ability of this shadow court to be successful: some partisan members would be more willing than others to serve constructively for the sake of the enterprise. But I certainly can imagine well-respected experts in election law with both Democratic and Republican affiliations who, if selected for this model tribunal, would participate in precisely the proper spirit.

In any event, there is no reason not to create this shadow court, at least on an experimental basis. Doing so will not slow the movement towards the creation of actual specialized election courts that are structured to be evenly—and thus fairly—bipartisan. There is no such movement at present, and the creation of this shadow court is the best (and perhaps only) means of getting this movement started.