Altered States

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As the presidential race tightens, the possibility of another Bush v. Gore increases. Over the past eight years, no significant election reforms have been enacted at the federal or state level to prevent the chaos of the 2000 election. However, Dr. Edward B. Foley has the “solution” for contested elections.

Director of Election Law @ Moritz, Dr. Foley “[favors] legislation in each state to place the authority to adjudicate election contests in a specialized Elections Court.” This idea stems from the 1962 gubernatorial race in Minnesota. “In the 1962 race for Governor of Minnesota, the state’s supreme court split three-to-two along party lines on a dispute over error correction in the canvassing of returns,” Dr. Foley explained at the Georgetown Law Supreme Court Institute. “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.” The bipartisan court created consisted of “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.”

To test the effectiveness of a bipartisan tribunal in presidential elections, Dr. Foley, assisted by the American Enterprise Institute and the Brookings Institution, created a hypothetical scenario for this year’s presidential race.

The scenario:

“This year’s presidential election will turn on [be decided by] disputed provisional ballots from Colorado. These ballots were cast following an extension of polling hours in Denver due to an unusual 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.”

Denver’s Democratic election director and Democratic mayor extended polling hours to nine p.m. All other polls in Colorado were closed at seven as expressed in Colorado’s election laws. Colorado’s Republican Secretary of State deemed these ballots void because Denver official had no authority to extend polling hours. Therefore, the case was turned over to the judiciary. The Colorado Supreme Court ruled the extending of voting hours to be legal. However, John McCain has brought the case before the United States Supreme Court. If the ballots are counted Barack Obama wins, if the ballots are rejected McCain wins.

This scenario was then played out by creating the hypothetical court case McCain v. Obama in which McCain appealed the decision of the Colorado Supreme Court that these provisional ballots are to be counted to the United States Supreme Court. However, a neutral three person panel (non-partisan tribunal) decided the case instead of the entire U.S. Supreme Court deciding the case, as in Bush v. Gore.

The Judges:

“The 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, chosen by Justice Phillips and Justice Wald to be the third and presiding judge.”

The legal representative for McCain and Obama:

“Presenting the argument on behalf of petitioners John McCain, et al. [is] Glen D. Nager, [chair of] the Firm’s Issues & Appeals practice. [He] has argued 12 cases before the U.S. Supreme Court.”

“Presenting the argument on behalf of respondents Barack Obama, et al. [is] Walter Dellinger, Chair of the Appellate Practice at O’Melveny. [He] is a Visiting Professor of Law at Harvard University and heads the Harvard/O’Melveny Supreme Court and Appellate Practice Clinic.”

The petitioning argument is that the extending of polling hours in Denver was illegal under Equal Protection and unconstitutional under Article II. By extending polling hours, the city of Denver gave an unequal advantage to voters in Denver when compared to the rest of the state. Additionally, Colorado state law clearly expresses that voting booths close at seven p.m. Extending the polling hours to nine p.m. broke Colorado Election Law.

The defending argument, that these ballots should be counted, is that the extreme weather in Denver delayed voters from going to the polls. The extension of polling hours was to make up for this delay. Colorado Election Law states that the polls must be open continuously from seven a.m. to seven p.m. The severe weather prevented people from going to the polls; therefore, the extension of polling hours was legal.

After a week of deliberation, the tribunal ruled:

I. “In view of the precise questions presented under the Equal Protection Clause and Article II, we hold that the political question doctrine has no application. The Court has jurisdiction and, therefore, duty to resolve the constitutional claims presented.”

II. “We decline to impose our views as to how elections should be run, district by district, on the State of Colorado under these circumstances.”

III. “We hold that Article II of the United States Constitution does not compel the rejection of the provisional ballots in this case.”

The hypothetical Court ruled that the State of Colorado has the right to determine how its election laws are interpreted and that there were no violations of federal election laws. “The judgment of the Colorado Supreme Court is affirmed.” This hypothetical decision would declare Barack Obama the next President of the United States.

Lance Nation is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.