A Hypothetical Obama v. McCain: On October 20, 2008 Election Law @ Moritz, with co-sponsors AEI-Brookings Election Reform Project and the Supreme Court Institute at Georgetown's law school, met to conduct a simulated Supreme Court adjudication of a hypothetical case involving this year's election. In the hypothetical, Colorado turns out to be the decisive state in this election, with McCain receiving 265 electoral votes and Obama receiving 264 electoral votes. The problem: A torrential storm occurred in Denver on Election Day. As a result, the city clerk notified polling places to stay open two extra hours. Colorado’s Secretary of State (an elected Republican), filed a lawsuit in state district court asking the court to enjoin the extension of polling hours. The Secretary argued that Colorado law has no provision to permit any extension beyond the regularly scheduled closing time. When the courts failed to grant an injunction, the Secretary issued an administrative order, invoking his statutory authority under Colorado Revised Code, that certified results from Denver must not include any of the provisional ballots cast by individuals arriving at the polls after the set closing time. Election Law Blog had this post, which linked to the details and provided an "early analysis" from Ned Foley. Also, on Election Law @ Moritz, Chris Elmendorf provided his own thoughts on the Equal Protection portion of the Court's analysis. The outcome of the hypothetical adjudication? According to Foley, "The Court ruled that the political question doctrine was inapplicable in the context of the particular case and thus did not deprive the Court of jurisdiction to consider the Equal Protection and Article II questions presented. On the merits, the Court rejected both the Equal Protection and Article II challenges to the (hypothetical) Colorado Supreme Court decision."

Posts on the Death Penalty: At Sentencing Law and Policy Doug Berman has two posts on the Death Penalty. Yesterday, Berman had a brief post on a special issue of The Justice System Journal. The issue is not available for free on-line, but Berman promises to try to track down some of the following articles: "Why So Long? Explaining Processing Time in Capital Appeals"; "Proportionality Review and the Death Penalty"; and "Starving the Death Penalty: Do Financial Considerations Limit Its Use?" Today, Berman asks what a new President could mean for the federal death penalty? While he notes that both candidates support the death penalty, Berman theorizes that the choice of Attorney General will influence the operation of the death penalty.

Proof Reading: Howard Bashman at How Appealing has a quick post on today's New York Times "For the Record." Apparently in a Wednesday article about Fordham University's plan to give an ethics prize to Supreme Court Justice Stephen G. Breyer, the Times misspelled Justice Ruth Bader Ginsburg's name. The Times stated: "The Times has misspelled her name at least two dozen times since 1980; this is the first correction the paper has published."

Hamdan's Sentence Will Not Be Extended: At Wall Street Journal Blog, Dan Slater provides information on a military judge's rejection of the Bush administration’s move to extend Hamdan’s time in detainment. Wall Street Journal reporter Jess Bravin has this report. The military judge's two-paragraph order stated he had read the filings and legal citations, as well as reviewed the sentencing hearing transcript, but would still deny the motion. The Wall Street Journal reports that the government maintains it may continue to detain Hamdan indefinitely, on grounds that he remains an “enemy combatant” who could take up arms against U.S. forces.