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Copyright © 2007, Gerald Bamberger


The state of Misery conducts an election for governor. Because Misery is an extremely poor state, voters use manual voting machines to punch holes in "vote cards." The machines do not always punch through the cards; sometimes, the cards are merely indented. Each county in Misery appoints a "tally team" which examines each card to determine, in the team's sole discretion, which vote was cast.

The incumbent governor lost the most recent election by twelve votes. The former governor then filed an appropriate action challenging the election results. If the case were to reach the United States Supreme Court, the most likely holding would be

(a)     Certiorari was improvidently granted, because principles of federalism dictate that procedures for state elections be left to the state.
(b)     The Misery procedure violates the fifteenth amendment, unless an alternative means of voting is provided to those who may not have the strength to operate the manual equipment.
(c)     The case presents a non-justiciable political question.
(d)     The Misery procedure violates equal protection, because different tally teams may evaluate similar vote cards in different ways.

To see Professor Bamberger explain the answer in detail click here.





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