Election Day Scenario Plays Out In Mock Court

Some legal experts wondered: What happens if the presidential election is contested and ends up before the Supreme Court again? Several academics and legal experts held a moot court hearing Monday to explore some of the issues that might be raised, and how they might be resolved in a less contentious way than they were in 2000.

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The U.S. Supreme Court has already weighed in once in this election season. It sided last week with Ohio's Democratic secretary of state in a voter-registration dispute with state Republicans. But the legal wrangling continues in Ohio and elsewhere. Yesterday, a group of legal experts in Washington explored an awkward question. What happens if the election is once again decided by the high court, as it was in 2000? NPR's Pam Fessler reports.

(Soundbite of moot court hearing)

Unidentified Man: Oi yey, oi yey, oi yey. All persons having business before the honorable Supreme Court of the United States are admonished to draw near and give their attention, for the court is now sitting.

PAM FESSLER: Not the real court, but a hypothetical one, set up for a moot court hearing at Georgetown University Law School. Still, it was enough to send chills down the spine.

Dean DAVID LEVI (Duke Law School): We will now hear argument in the case of McCain versus Obama.

FESSLER: That's David Levi, a former judge and now dean of Duke Law School. He played the role of chief justice. The scenario was this: It's December 1st, and the election is still undecided. The outcome rests on whether thousands of provisional ballots cast in Denver will be counted. If they are, Barack Obama's the likely winner. If they're not, John McCain has won. In the scenario, Denver's election director had kept polls open an extra two hours on Election Day because of a severe snowstorm. But as Edward Foley of the Moritz College of Law explains, Colorado's Republican secretary of state objected because state law says polls must close at 7 p.m.

Professor EDWARD FOLEY (Moritz College of Law): That statute says that voters standing in line at 7 p.m. may vote, but that, and I now quote, any person arriving after 7 p.m. shall not be entitled to vote.

FESSLER: Still, after much legal back and forth, 62,000 Denver voters are allowed to cast provisional ballots after the deadline. The state Supreme Court eventually rules that those votes should be counted, and the McCain campaign appeals to the U.S. Supreme Court. Arguing McCain's case is Washington lawyer Glen Nager, who says Denver voters received preferential treatment because some voters outside the city were also affected by the storm.

Mr. GLEN NAGER (Lawyer): The state, when it comes to the actual right to vote, may not deny the vote to one where it grants it to a similarly situated other voter and...

Dean LEVI: They're not similarly situated, though.

FESSLER: Justice Levi wasn't buying the argument.

Dean LEVI: You're not similarly situated if you've been told by your election official you have an extra two hours, and you take advantage of that. Sixty two thousand people, you are suggesting, should have their votes rejected now because those others didn't have the additional two hours.

FESSLER: Well, yes, said Nager. But arguing for Obama, former Assistant Attorney General Walter Dellinger said it was wrong to apply such a rigid test if it interfered with efforts to facilitate voters' ability to cast a ballot.

Professor WALTER DELLINGER (Law, Duke University): They haven't taken away anything from anyone. No state actor took away the right of people and counties other than Denver to have extended voting hours. That issue was never presented by those county officials.

FESSLER: He noted that state law also says the elections code should be, quote, liberally construed. If anything, this hypothetical case showed that the real law is far from clear. The purpose here was to see if a special bipartisan panel could decide such cases in a way that would instill public confidence, a confidence not expressed by some on the losing side of the Supreme Court's decision in Bush v. Gore. But Dellinger said he thought such politically charged decisions shouldn't be made by any court, but by the elected members of Congress, who have the authority to determine the counting of electoral votes for president.

Professor DELLINGER: The ultimate question is so political that it ought to be resolved by politically accountable people.

FESSLER: Whether it comes to that this year is anyone's guess, but these legal experts thought it was at least worth a debate. The hypothetical Supreme Court panel will announce its decision next week. Pam Fessler, NPR News, Washington.

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