Supreme Court Stars Argue Hypothetical Case: McCain v. Obama

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http://amlawdaily.typepad.com/amlawdaily/2008/10/am-law-litiga-4.html

October 22, 2008 9:30 AM
The Am Law Litigation Daily: October 22, 2008

Posted by Joe Phalon
Edited by Andrew Longstreth

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Supreme Court Stars Argue Hypothetical Case: McCain v. Obama

Here's an intriguing scenario. It's November 4, Election Day, and a snowstorm hits Denver. A local election director decides to keep the polls open two hours longer than permitted by state law to accommodate voters detained by the storm. About 50,000 votes are cast in those two hours--and they swing the election to Barack Obama. The McCain camp launches a challenge to those votes that within days lands before the Supreme Court. With the election at stake, McCain turns to conservative legal star Glen Nager of Jones Day. The Obama team calls on former acting solicitor general Walter Dellinger of O'Melveny & Myers to defend its victory.

The scenario is hypothetical, but the moot Supreme Court argument took place on Monday at Georgetown University Law Center. Legal Times's Tony Mauro, who was there to see it, reports that Nager and Dellinger argued as if they were really before the justices, with Nager focusing on equal protection and Dellinger asserting that the case didn't belong in the Supreme Court.

The idea for the event belongs to Edward Foley, an Ohio State University Moritz College of Law professor and election law expert who has written about the handling of complex election disputes. At Georgetown, according to Mauro, Foley suggested an interesting idea in anticipation of the next major election dispute: a shadow court of respected judges who would submit their findings in the form of an amicus brief to the real court. "It might have some persuasive impact," Foley said.

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