The McCain v. Obama Simulation: A Fair Tribunal for Disputed Presidential Elections

Abstract

In October 2008, Election Law @ Moritz (together with other co-sponsoring institutions) conducted an experiment to test the idea whether a specially designed court could achieve a greater appearance of impartiality in deciding a disputed presidential election than the kind of general-jurisdiction supreme courts, both state and federal, that adjudicated Bush v. Gore. This essay describes the genesis of this experiment and its results. The basis for the experiment was a hypothetical case raising equivalent issues to Bush v. Gore, involving both Equal Protection and the power of state legislatures to appoint presidential electors under Article Two of the Constitution, with these issues set in the context of a dispute over provisional ballots cast in Colorado on the assumption that this state (rather than Florida) determined the outcome of the 2008 presidential election. To test the hypothesis of the experiment, a specially designed tribunal was created to adjudicate this hypothetical dispute: two highly-regarded retired jurists from opposite political background (one Democrat and one Republican) were chosen and asked to select a third, neutral judge. These three judges then received briefs and heard oral arguments from two leading Supreme Court practitioners. The judges issued their decision, which turned out to be unanimous. The essay describes the reasoning of their opinion and discusses whether its unanimity can be regarded as successful outcome of the experiment, having a greater appearance of impartiality that the sharply divided supreme court decisions (both state and federal) in Bush v. Gore.