McCain v. Obama

[Editor’s Note: This is a fictional case created to illustrate the concepts herein.] On election day, November 4, 2008, a severe winter storm hit Denver. In response, Denver Election Director Michal Scarpello (defendant) issued an order keeping all Denver polling places open until 9:00 p.m.—two hours later than the statutorily prescribed closing time of 7:00 p.m. Scarpello’s directive included the direction that all ballots cast in the two-hour extended voting period would be treated as provisional ballots. Colorado Secretary of State Mike Coffman (plaintiff) learned of the extension and filed suit in state district court to enjoin the extended voting hours. The state district court denied the request, as the provisional ballots cast between 7:00 pm and 9:00 p.m. could be disqualified in later proceedings if the extension of time was found to be unlawful. Coffman appealed to the Colorado Supreme Court. The Colorado Supreme Court upheld the district court decision. Late in the evening on November 4, Coffman sought an emergency injunction from the United States Supreme Court. The United States Supreme Court refused to issue the injunction so late in the evening, explaining that the issue was now moot. Over 60,000 provisional ballots were cast in Denver during the extended voting period. After election day, the electoral college vote was divided 265-264, not including Colorado’s nine electoral votes. Coffman certified the vote for Colorado without including the Denver provisional ballots. Scarpello then sought a decree from a state district court to void Coffman’s certification. The district judge referred the case to the Colorado Supreme Court, and the McCain and Obama campaigns intervened. The Colorado Supreme Court determined that Denver voters would be denied equal protection if the Denver provisional ballots were not counted. Petitions for certiorari were filed with the United States Supreme Court.