Bush v. Gore Is Back

In a cosmic, cursed twist, this year’s Florida recount could hinge on the meaning of the most notorious Supreme Court decision of the 2000s.

Democrat Jennifer Parker of Lake Worth, Florida, demonstrates along with others in front of the Palm Beach County Government Complex.
Democrat Jennifer Parker of Lake Worth, Florida, demonstrates on Nov. 9, 2000, along with others in front of the Palm Beach County Government Complex in West Palm Beach, Florida. Bruce Weaver/AFP/Getty Images

On Thursday, U.S. District Judge Mark Walker rejected Democratic Sen. Bill Nelson’s request to extend the timeline for a manual recount of the ballots in Florida’s Senate race. Nelson, who currently trails Republican Rick Scott by 0.15 percentage points, wanted Walker to push the deadline beyond noon on Sunday, alleging that at least one county won’t be finished recounting votes by then. Walker refused, noting that Nelson’s lawyers had failed to demonstrate with any certainty that counties will struggle to meet this deadline.

But the judge spent the bulk of his opinion issuing a dire warning: The state of Florida has a looming Bush v. Gore problem—and it isn’t going away on its own. “By cosmic coincidence (or curse),” Walker wrote, “it is Bush v. Gore that is most instructive in this Florida recount dispute.” He proceeded to lay out the blueprint for another challenge to Florida’s recount scheme. Then, one hour after issuing his decision, Walker held a hearing in a case that presents the Bush v. Gore issue front and center. As the Florida recount reaches its climax, it seems unavoidable that the most notorious Supreme Court decision of the 2000s will play a starring role.

The legal standoff between Democrats and Republicans in Florida right now is, at heart, quite simple. To prevent recounts from dragging on, Florida law sets firm deadlines by which county canvassing boards must finish reviewing ballots. Republicans, who hold slim leads in the Senate and governor’s races, want the state to enforce those deadlines. Democrats want the courts to extend them. Nelson and Jim Bonfiglio, who is running for a seat in the Florida House of Representatives, are worried that Palm Beach County—one of Florida’s largest and most liberal—won’t be finished with its recount in time. Should that occur, the state will use the county’s “unofficial” returns, defined as the tally on “noon on the fourth day” after the election.

A default to unofficial returns would undermine the whole purpose of the exercise. So, on Tuesday, Nelson’s campaign sued, asking Walker to stop Florida from imposing the deadline for both the machine recount (Thursday at 3 p.m.) and the manual recount (Sunday at noon). But Nelson’s lawyers did not prove that Palm Beach County would actually blow past the Sunday deadline, or explain how much extra time it needed. Walker therefore swatted down the motion, complaining that “there is a complete dearth of evidence before this Court regarding the status, progress, or expected completion of the ordered recounts in Palm Beach County.”

This conclusion was bad news for Nelson. Everything else in the judge’s opinion, however, should give him cause for optimism. Walker noted that Bush v. Gore halted Florida’s 2000 recount because different canvassing boards planned to recount ballots using “a patchwork quilt” of standards. The Supreme Court found that the Equal Protection Clause requires the “nonarbitrary treatment of voters” in counting ballots to “secure the fundamental right” to vote. A state may not, by “arbitrary and disparate treatment, value one person’s vote over that of another.”

Here, a similar problem arises. “The state’s recount provision,” Walker noted, “will lead to votes and election results in one county being ‘ignored’ while other counties’ vote and results will not be.” Florida’s stringent deadlines may deny voters the right to have their ballots counted because their county canvassers were slow or were stymied by unforeseen roadblocks. The law thus “arguably denies voters an equal opportunity to participate in the full electoral process due to unknowable vagaries like, for example, faulty machines.” And it may infringe on equal protection “because it arbitrarily and disparately treats some voters differently because of their location and without taking into account the unpredictable circumstances of each election cycle.”

If we take Bush v. Gore at its word, then Walker is almost certainly correct. But the decision included a notorious line that cast doubt on its value as precedent: “Our consideration,” the court wrote, “is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Both Chief Justice John Roberts and the 6th U.S. Circuit Court of Appeals have interpreted this sentence to mean that the facts of the case were unique and unusual, not that it had no precedential weight. Walker seems to read it the same way, which is perfectly sensible, since he is obligated to follow a holding of the Supreme Court, even when it’s qualified by cryptic hedging.

And that’s excellent news for Nelson. At 4 p.m. on Thursday, Walker heard arguments in a related case brought by Bonfiglio against the Florida secretary of state, the Palm Beach County Canvassing Board, and Susan Bucher, supervisor of elections in Palm Beach County. Rick Scott and Ron DeSantis, the GOP gubernatorial candidate, intervened on the state’s behalf; Nelson jumped in to support Bonfiglio. In this case, officials from Palm Beach County should be able to give Walker specific information about their ongoing recount efforts and, presumably, their inability to meet the state’s deadline. Once they do, the judge will be able to apply his Bush v. Gore concerns—and direct Florida to extend the deadline, precisely what the Democratic candidates want.

It would obviously be ironic if a decision that liberals universally despise were deployed to help Democrats in Florida 18 years later. But Walker isn’t trying to inflict some cosmic judgment on Florida Republicans. He is taking the Supreme Court at its word—and that requires conducting a uniform recount of every vote, even if some counties drag their feet. It isn’t the fault of Palm Beach voters that their county canvassers appear to be incompetent. And Walker seems poised to rule that the Constitution does not permit Florida to rush the recount if that means repeating the mistakes of the cursed 2000 election.