Home -> Law Blog Directory -> Administrative Law Blogs -> Within the Scope

Administrative Law

: Within the Scope

The Year?s Most Interesting Moot Court Recalls the ?Minnesota Model?

By Eric L. Lipman

On Monday, the Georgetown Law Center, in conjunction with the Georgetown Law Supreme Court Institute, the Ohio State University Election Law Center at Moritz and the American Enterprise Institute-Brookings Institution Election Reform Project, hosted a not-so-hypothetical oral argument.

At issue in the case that the sponsors conjured up, was: What result should follow from a County election official?s decision to extend polling place hours in Denver, and permit voters to cast provisional ballots after the ordinary 7:00 p.m. closing time for the polls, because a snow storm had hit the area on Election Day?

Under the facts of this hypothetical case (stylized as McCain v. Obama), the decision as to whether or not to count the provisional ballots that were cast during these extended hours in the Denver polling places will determine both which presidential candidate receives Colorado?s votes in the Electoral College and thereby wins the presidential election.

This special moot court drew together an all-star cast. Serving as Chief Justice of the United States was Duke Law School Dean, and former Chief Judge of the United States District Court for the Eastern District of California, David F. Levi. Joining him as Associate Justices were Thomas R. Phillips, a former Chief Justice of the Supreme Court of Texas, now with the law firm of Baker Botts LLP, and Patricia M. Wald, former Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. Arguing on behalf of hypothetical petitioner John McCain, was Glen D. Nager, of the law firm Jones Day. Arguing on behalf of hypothetical petitioner Barack Obama was Walter Dellinger, of the law firm of O'Melveny & Myers LLP.

Likewise interesting, the event?s sponsors featured what they termed as the ?Minnesota Model? of resolving bitterly-contested recount battles (and boosting public confidence in the judicially-determined outcome). The sponsors pointed to the 134-day Gubernatorial election contest between Elmer A. Andersen and Karl Rolvaag, in 1960, during which a special three-judge panel was established by having judges who were earlier-identified with a particular political party jointly agree upon the selection of a presiding judge who was not particularly disposed to either party. As Governor Andersen recalled later in his biography, A Man?s Reach:

The recount was a slow process. Oscar Knutson, the Chief Justice of the [Minnesota] Supreme Court, reflected the impatience of many Minnesotans when in early December he decided he wanted to get things moving ? and get the matter off his calendar. He and other justices resented the implication in some national media reports that because four of the seven court members had been appointed or promoted by me, they were sure to rule in my favor in the end. The high court was determined to play the recount perfectly straight. Knutson directed the recount managers for both candidates to agree on the names of three mutually-acceptable jurists to formulate a three-judge panel to oversee the recount. The managers were told to go into a room and not come out until they had three names ? even if it took all night. It very nearly did. But on December 10, the high court had three names. The appointed judges were Sidney Kaner of Duluth, J. H. Sylvestre of Crookston, and Leonard J. Keyes, Jr. of St. Paul. Kaner was a former DFLer appointed to the bench by Governor Orville Freeman. Sylvestre had been appointed by Governor Luther Youngdahl. Keyes had a mixed political history. He had been named a municipal judge by Freeman and a district judge by me.

In order ?to ensure bi-partisanship? for Monday?s Moot Court event, the sponsors likewise directed the two Associate Justices to jointly agree as to whom would serve as the Chief Justice.

Audio of this fascinating, important and instructive "moot court" oral argument is accessible here.

Full post as published by Within the Scope on October 23, 2008 (boomark / email).