## Facts

- [Editor’s Note: This is a fictional case created to illustrate the concepts herein.]
- On November 4, 2008 (Election Day), a severe winter storm hit Denver, Colorado, making it difficult for some voters to reach polling places before closing.
- Colorado law set the statutory poll closing time at 7:00 p.m.
- Denver Election Director Michal Scarpello (defendant) issued an order keeping all Denver polling places open until 9:00 p.m., two hours past the statutory closing time.
- Scarpello directed that all ballots cast during the 7:00 p.m. to 9:00 p.m. extended period would be treated as provisional ballots.
- Colorado Secretary of State Mike Coffman (plaintiff) learned of the extension and filed suit in Colorado state district court seeking to enjoin the extended voting hours.
- The state district court denied injunctive relief, reasoning that ballots cast during the extension were provisional and could be disqualified later if the extension was determined unlawful.
- Coffman appealed, and the Colorado Supreme Court upheld the district court’s denial of election-day injunctive relief.
- 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 an emergency injunction so late in the evening, explaining that the issue was now moot.
- More than 60,000 provisional ballots were cast in Denver during the 7:00 p.m. to 9:00 p.m. extended period.
- After Election Day, the Electoral College vote stood at 265–264, not including Colorado’s nine electoral votes.
- Coffman certified Colorado’s results without including the Denver provisional ballots cast during the extended period.
- Scarpello then sought a decree from a state district court to void Coffman’s certification.
- The district judge referred the matter 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.

## Issues

1. Whether excluding the Denver provisional ballots cast during the storm-related extension denies equal protection to those voters when election officials directed them to vote during the extended hours.
2. Whether a state-court order requiring the counting of ballots cast during an extension beyond the statutory closing time improperly alters the legislature’s chosen manner of appointing presidential electors under Article II, § 1, cl. 2.
3. Whether the United States Supreme Court’s refusal to grant late-night emergency relief on mootness grounds prevents later litigation over counting and certification after the ballots have been cast.

## Decision

- The Colorado state district court denied Coffman’s request to stop the extended voting hours, reasoning that provisional treatment preserved the ability to disqualify the ballots later if the extension was unlawful.
- The Colorado Supreme Court upheld the district court’s denial of injunctive relief during Election Day.
- The United States Supreme Court refused to issue an emergency injunction late on November 4, stating that the issue was moot given the timing.
- After Coffman certified Colorado’s results without counting the Denver provisional ballots, Scarpello sought to void the certification, and the dispute returned to the Colorado Supreme Court with the McCain and Obama campaigns intervening.
- The Colorado Supreme Court concluded that failing to count the Denver provisional ballots would deny equal protection to Denver voters.
- Petitions for certiorari were filed in the United States Supreme Court following the Colorado Supreme Court’s equal-protection determination.

## Legal Principles

- When election officials extend voting hours during an emergency and instruct voters to use a particular method (here, provisional ballots), later refusal to count those ballots may raise equal-protection concerns if it results in unequal treatment of voters who relied on the official directive.
- A provisional-ballot process can function as a temporary safeguard: it allows voting to proceed during disruptive events while leaving room for later judicial review of whether the extension complied with state election law.
- Courts may decline last-minute emergency election relief when requested so late that an injunction would be impractical, while still leaving room for later disputes about counting and certification.
- In presidential elections, disputes about whether ballots must be included in a state’s certified results can implicate Article II’s assignment of authority to state legislatures and the extent to which state courts may resolve election-law conflicts without changing the legislature’s prescribed rules.

## Conclusion

McCain v. Obama, Mock Case No. 1 (2008) is a fictional election dispute in which a Denver snowstorm led the city’s election director to extend polling hours and require that ballots cast in the extension be treated as provisional; after the secretary of state certified Colorado’s presidential results without counting those ballots, the Colorado Supreme Court concluded that excluding them would deny equal protection, and the matter proceeded to petitions for certiorari in the United States Supreme Court following the Court’s earlier refusal to grant late-night emergency injunctive relief as moot.
