McCain v. Obama: A Hypothetical Supreme Court Case
October 20, 2008
Monday, October 20, 2008
10:00 AM-12:00 PM
Hart Auditorium, McDonough Hall
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001

To read the decision in the case, go here (PDF).

To watch a video of the event, or listen to audio from the event, go here.

To read a transcript of the event, go here (PDF).

Is another Bush v. Gore possible? What if the U.S. Supreme Court held the fate of another presidential election in its hands?

It's November 4, 2008. A blizzard hits Colorado gridlocking Denver traffic and impeding access to the polls. Denver's Democratic Election Director, with consent of the Democratic Mayor, announces an extension of polling hours for two extra hours. The Republican Secretary of State seeks an injunction in Court against the extension arguing it has no basis in law and that it is unfair to extend polling places only in Denver, but not statewide.

His immediate request is denied, but the ballots cast after 7:00 pm are cast as provisional ballots, and these ballots will not be opened until the matter is settled in court. After several appeals, the U.S. Supreme Court hears the case of McCain v. Obama. In 2008, Colorado is the deciding state in the Electoral College. If these ballots are counted, it is likely Obama will win the election, if not, McCain will be the next president.

On October 20, the AEI-Brookings Election Reform Project, along with the Election Law @ Moritz project at the Ohio State University and the Georgetown University Law Center Supreme Court Institute will co-sponsor an argument of this hypothetical court case. Respected Supreme Court advocates Walter Dellinger and Glen Nager will argue before a balanced panel of retired judges David Levi, Thomas Phillips, and Patricia Wald. The advocates will each have 30 minutes to argue their case and audience questions and discussion will follow with a court opinion to be issued within ten days.

Moderators:
Edward B. Foley, Moritz College of Law, Ohio State University
John C. Fortier, AEI

Chief Justice:
David F. Levi, Duke Law School, former Chief Judge, US District Court, Eastern District California

Associate Justices:
Thomas R. Phillips, Baker Botts, former Chief Justice of the Supreme Court of Texas
Patricia M. Wald, former Chief Judge, US Court of Appeals for the D.C. Circuit

Arguing on Behalf of McCain:
Glen D. Nager, Jones Day

Arguing on Behalf of Obama:
Walter Dellinger, O'Melveny & Myers
Featured Resources
Florida’s Division of Elections attributes the continuing drop in the Florida over- and undervote rate to a statewide voter education campaign and voters' facility with new voting machine technologies.
Examining ten states that are likely to be very competitive during the 2008, presidential election, this report summarizes a variety of challenges they are likely to face in areas including voter registration, voter identification, and poll worker recruitment and training.
Using precint-level data from Franklin County, Ohio, Highton finds a causal link between voting machine scarcity and lower voter turnout. He notes, however, that much of the association between machine availability and voter turnout is caused by factors other than machine availability.
Research Projects
Election Law @ Moritz, run through Moritz College of Law at the Ohio State University, contains both explanation and commentary on a wealth of election reform issues from a legal perspective.
Part of the Institute for Governmental Studies at the University of California at Berkeley, the Election Administration Research Center (EARC) aims to improve the administration of elections.
Electionline.org provides daily news updates on election reform issues, as well as deeper analysis of selected topics, including recent reports on voter registration, recount procedures, and the progress in implementing the Help America Vote Act since 2002.
As part of its broader research focus on elections, campaign ethics, campaign finance, and the legislative process, the Center for American Politics and Citizenship at the University of Maryland is engaged in research projects on voting technology and ballot design specifically.
The American Enterprise Institute for Public Policy Research
www.aei.org
The Brookings Institution
www.brookings.edu
© Copyright 2006, AEI
and The Brookings Institution