Democrats got agitated this week when Kavanaugh, appointed by Trump in 2018, included a nearly page-long disquisition on Bush v. Gore in an opinion explaining his vote not to reinstate a six-day buffer after Election Day for mail-in ballots, which are expected to lean heavily Democratic, to arrive at election offices in Wisconsin. Then, only two days later, Democrats were cheered by the news that the court had let stand, at least for now, post-Election Day buffer periods in two other key swing states, Pennsylvania and North Carolina. The notion of a conservative court handing the presidency to Trump seemed that much more distant a prospect.
However, opinions by Justices Samuel Alito and Neil Gorsuch appended to Wednesday's decisions, when read together with Kavanaugh's opinion, suggest more is afoot. Bush v. Gore is poised for a revival at the high court. That will probably occur in a different scenario than what happened in 2000. The election forecaster FiveThirtyEight projects only a four percent chance of the election being decided by a recount.
But Bush v. Gore has never been the dead letter it's popularly perceived to be, and it could be a factor in a number of election battles this year. Before 2020, the Supreme Court had mentioned the case only once in two decades. But in the state courts and lower federal courts, it's quietly but repeatedly taken on new roles over the years, serving to resolve everything from how ballot signatures are reviewed to the deadline for mail-in ballots to reach election officials. This election cycle, with the help of Kavanaugh, Alito, and Gorsuch, as well as a welter of GOP lawyers pushing to take Bush v. Gore in a new direction, the case is undergoing a radical transformation. If completed, legal scholars believe, that transformation will have far-reaching and deleterious consequences for efforts to expand voting rights.
What Was Bush v. Gore?
By the early morning hours after Election Day 2000, it was clear that the election contest between the Republican candidate, George W. Bush, and the Democrat, Al Gore, would come down to Florida's 25 electoral votes. With Bush up in the state by a very thin margin, Gore moved to have machine-tabulated ballots manually recounted. Weeks of legal wrangling ensued, with litigation pingponging around various Florida state courts, twice reaching the U.S. Supreme Court. Eventually, the Florida Supreme Court ordered a statewide manual recount but offered little guidance to ballot counters other than that they had to discern the “clear intent of the voter." Many Florida counties used punch card ballots at the time, and some Floridians failed to fully punch out the paper tab, called a “chad," leaving their votes unclear. New phrases entered the American lexicon: “hanging chads" (partially detached), “dimpled chads" (indented but not detached) and so on.
With an important mid-December deadline approaching, Bush's lawyers asked the Supreme Court to intervene. Late on a Tuesday, just hours ahead of the deadline, the court, by a 5-4 vote, put a stop to the Florida recount, all but declaring Bush the next president. In an unsigned opinion, five of the court's more conservative justices found that the Florida Supreme Court's recount rules were vague and inconsistent, resulting in “arbitrary and disparate treatment" of ballots. So, for example, counters in Miami-Dade County might deem a particular hanging chad a vote for president while counters in Palm Beach County might not.
The Constitution gives broad discretion to state legislatures to decide how to appoint the electors it sends to the electoral college. The Bush v. Gore majority held that the Florida recount procedures violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, which requires that the state not “value one person's vote over that of another." On this point there was broad agreement; two justices from the court's liberal wing, Stephen Breyer and David Souter, largely agreed with the five conservatives.
The question remained: what to do about it? Souter and Breyer thought the U.S. Supreme Court should do what it would usually do and send the case back to the Florida Supreme Court with instructions for how to cure the problem. The five conservatives, however, decided that there wasn't enough time left to fix the recount process and complete it. Two decades later, their reasoning remains the subject of widespread criticism. (The late Justice Antonin Scalia joined the majority opinion but privately called the equal protection rationale, “as we say in Brooklyn, a piece of shit," according to “First," a well regarded 2019 biography of retired Justice Sandra Day O'Connor.) In essence, the majority read into an earlier Florida Supreme Court ruling the suggestion that the Florida Legislature wanted the vote count finalized before the mid-December deadline.
Is Bush v. Gore Precedent?
The prevailing view has been no. In that interpretation, Bush v. Gore is a one-off that judges and lawyers are free to ignore. A binding precedent, by contrast, requires that lower courts (and the high court itself) abide by it.
Despite that view, the ruling's influence appears to be very much alive: It has been cited in hundreds of federal and state cases, dating from the years just after the 2000 election to this week. How can these dueling interpretations coexist? Consider the most often quoted sentence in Bush v. Gore: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." The not-precedent camp points to the first clause as dispositive. But others insist the second clause is every bit as important as the first, and if read in that way, the sentence sounds not so much like a disavowal of future relevance as a word of caution for other judges: Don't apply the court's analyses in rote fashion; be sensitive to the facts of the case.
Disagreements over whether Bush v. Gore should be considered a precedent are widespread, including in federal courts. For example, judges on the federal appellate court in Cincinnati decided in 2003 that Bush v. Gore was precedent “we are bound to adhere to." Thirteen years later, another set of judges on that same court dismissed the opinion as “non-precedential." Still other judges split the difference, like one on the appeals court in Richmond this year, who called Bush v. Gore “of limited precedential value."
Bush v. Gore Since Bush v. Gore
For a case that's widely regarded as an aberration, Bush v. Gore has done all right for itself outside the U.S. Supreme Court. Not only has it been cited well over a hundred times by state supreme courts and federal courts of appeals, that tally grows to about 500 when lower courts are included — from litigation over the 2003 vote to recall California Gov. Gray Davis to this year's court battle over felon reenfranchisement in Florida. That means there's a chance Bush v. Gore could reprise its role this year at the center of the resolution of the presidential race, should, say, Pennsylvania become to 2020 what Florida was for 2000. (Indeed, the case has already been raised as part of the ongoing litigation about how to handle mail-in ballots in the state.)
It could also help decide the outcome of other key races, a particularly consequential possibility given that control of the Senate is at stake this year. In 2008, for example, Norm Coleman, an incumbent Republican senator from Minnesota, tried to use Bush v. Gore to challenge the process by which election officials decided whether absentee ballots were valid. He was unsuccessful, and his Democratic opponent, the comedian Al Franken, ultimately won the seat.
Over the past two decades, Bush v. Gore has evolved beyond the partisan identity it maintains in the public imagination. An examination of judicial decisions and court filings in more than 150 cases suggests its invocation won't necessarily benefit one party or the other.
The ruling has continued to be invoked in its original context, guiding judicial oversight of ballot recounts. That makes it an inviting tool for a president who has repeatedly mused publicly about halting vote tabulations after Election Day. But the case could just as soon help speed along a recount, as the president has seen firsthand in November 2016, when Green Party presidential candidate Jill Stein petitioned for a recount of votes cast in Michigan, a state Trump then appeared to have won by only a few thousand votes. Stein's recount didn't change the outcome, but federal judges in that case relied in part on Bush v. Gore to ensure the recount got done on time, ruling in favor of Stein's request to waive a waiting period mandated by state law before beginning a recount. The delay, they reasoned, might prevent the state from completing the recount ahead of a key federal deadline. Once a state grants a right to a recount, a federal appeals judge wrote, “the State could not use arbitrary or unreasonable procedural rules to make that right a nullity."
Bush v. Gore has been applied in contradictory ways in different cases, both to disqualify large numbers of ballots or to ensure that ballots aren't arbitrarily rejected. Just after the 2018 election, for example, Florida Democratic Sen. Bill Nelson's reelection campaign and a state Democratic Party committee filed a federal lawsuit challenging the way Florida election officials verified signatures on vote-by-mail and provisional ballots. When a state lets residents vote by mail, the campaign's legal team argued in a filing that relied on Bush v. Gore, the Equal Protection Clause forbids the state from luring “its voters into a procedurally arbitrary vote-by-mail trap that results in their disenfranchisement." In response to Nelson's suit, the courts bemoaned “Florida's lack of any standards or formal training requirements" for those who assess ballot signatures, as well as the state's failure to notify some Floridians in time to fix improperly rejected ballots. A judge ordered the state to give those voters until 11 days after the election to submit affidavits and proof of identity so their votes would count. (Despite that interim victory, Nelson came up short and lost his seat.)
On the other side of the partisan divide, GOP lawyers this year are deploying Bush v. Gore aggressively. Attorneys for Republican legislators in North Carolina, for instance, recently argued that a state elections board plan to extend the period of time that officials could accept ballots postmarked by Election Day violated Bush v. Gore. In essence, they claimed that the case permitted their clients to use the Equal Protection Clause as a tool to reduce the number of eligible voters who got to cast a ballot. The full appeals court rejected the argument, with one of the judges in the majority calling the plaintiffs' argument “deeply troubling." The plaintiffs had suffered no harm, she wrote, and their sole aim was to reduce the number of eligible voters allowed to legally cast their ballot. (Three of the court's more conservative judges wrote a dissent agreeing with the plaintiffs. On Wednesday, the U.S. Supreme Court rejected a request to temporarily block the extension.)
There's more of this to come. On Oct. 23, a lawsuit filed in Nevada by the Trump campaign and the state Republican Party argues that the state runs afoul of Bush v. Gore because it offers a way to challenge in-person voters but fails to offer a mechanism for challenging voters who send their ballot through the mail, a potential opening salvo in an attack on mail-in voting in an important swing state.
Bush v. Gore and the Ghost of William Rehnquist
Until recently, Bush v. Gore's ongoing influence on federal elections has been fairly quiet, adapting to new issues of election administration in an incremental, case-by-case manner. It now seems on the verge of a metamorphosis. In recent years, Bush v. Gore — or, more precisely, a side note in it, a line of reasoning that indisputably is without precedential effect — has begun to gain currency among conservative jurists and election lawyers. In the past week, four members of the Supreme Court's conservative wing became advocates for the cause, seeking to transform a long-marginal idea into the law of the land. Should a majority of the high court embrace the thinking, the court's new right-leaning supermajority will have near-total power over courtroom efforts to shape federal elections — a set of circumstances that election law scholars and voting rights lawyers fear could seriously hinder efforts to expand the franchise in the United States.
Separate from the unsigned majority opinion in Bush v. Gore, the late Chief Justice William Rehnquist, joined by Scalia and Thomas, authored a concurring opinion offering “additional grounds" for putting an end to the Florida ballot recount. Ordinarily, when a state supreme court rules on an issue of state law, that state court decision can't be appealed to the U.S. Supreme Court, an outgrowth of the federal system in the United States. In his concurrence, however, Rehnquist claimed to have identified an exception to this rule in the context of state laws governing presidential elections. In that context, Rehnquist wrote, the U.S. Supreme Court, in fact, could second-guess a state supreme court's interpretation of its own state's election law.
Rehnquist's argument hinged on a narrow reading of the U.S. Constitution's Presidential Electors Clause, which says, “Each State shall appoint, in such Manner as the Legislature thereof may direct," the electors that vote for the president and vice president. In the chief justice's view, the Constitution gave state legislatures exclusive authority to run presidential elections, and when, as in Florida in 2000, a state court (or governor) interfered in the election laws passed by the legislature, that runs afoul of the U.S. Constitution, which means that the federal Supreme Court can intervene to help preserve the state legislature's power over how the state runs its presidential elections.
The dissenting justices expressed puzzlement and incredulity at Rehnquist's unusual reading of the Presidential Electors Clause. By his logic, they observed, a state legislature was unconstrained by its state constitution when prescribing laws related to presidential elections. The Supreme Court's own precedents, the late Justice John Paul Stevens wrote, rejected Rehnquist's interpretation. “Legislature" in the Presidential Electors Clause, he wrote, meant the state legislature acting in its ordinary lawmaking capacity, subject to a gubernatorial veto and the state constitution as interpreted by the courts, not as an all-powerful synod.
This week, Rehnquist's theory not only received the imprimatur of four sitting justices; it saw its scope expand. First, on Monday, came Kavanaugh's riff on Bush v. Gore in his concurrence in the Wisconsin vote-by-mail extension case. It excavated Rehnquist's theory and held it out as the correct reading of the Constitution. It was an odd place for Kavanaugh to articulate his pro-Rehnquist thesis, because, as Kavanaugh acknowledged, it was entirely irrelevant to the Wisconsin case. The Wisconsin case was appealed from a federal court, not a state court, and there's no question the U.S. Supreme Court has the power to review the decisions of lower federal courts. Kavanaugh's footnote suggested he was eager to convey his point of view out into the world, possibly to encourage future litigants to present the court with opportunities to elevate Rehnquist's concurrence to the level of precedent. That signal may not be necessary. Throughout the country, Republican election lawyers are already doing just that.
No other justice joined Kavanaugh's concurrence, but just two days later, three of them would join him in extolling the virtues of Rehnquist's theory. On Wednesday, the Supreme Court declined to roll back similar vote-by-mail buffer periods in two other swing states, North Carolina and Pennsylvania. Unlike in Wisconsin, the extensions of time were authorized by state courts relying on state law, the kind of decision over which the federal Supreme Court ordinarily has no authority. Given the partisan polarization around voting by mail this year, Democrats celebrated the outcome. The festivities, however, were muted. Accompanying each order was a lengthy statement signed by some or all of justices unhappy about the outcome — Alito, Gorsuch and Thomas — and warning that the cases might not be over yet.
Both statements declared their support for adopting Rehnquist's Bush v. Gore concurrence and went further still, indicating that, within state government, the legislature also has exclusive control over congressional elections. (The Constitution authorizes Congress to override the legislature.) The statement written by Alito, which was appended to the Pennsylvania order, suggested that the Supreme Court might yet intervene after the election, potentially rejecting some large number of ballots that were mailed by Election Day but that arrived at election offices within the three day buffer period.
The more realistic reason for Bush v. Gore to alarm Democrats is that the Supreme Court's four most conservative justices — Alito, Gorsuch, Kavanaugh and Thomas — seem to be champing at the bit to cut state courts out of federal elections altogether. “Conservative judges have increasingly shown hostility to expanded voting rights, even during a pandemic," said Rick Hasen, an election law expert at the University of California, Irvine School of Law. The approach embodied in the Rehnquist concurrence, known to lawyers as the independent state legislature doctrine, is one of many tools “that is making it harder for other actors to protect voting rights."
Can they get a fifth justice on their side? Barrett's views aren't yet known, but Roberts doesn't seem eager to embrace the Rehnquist theory. This Monday, in a brief opinion, the chief justice distinguished the situation in Wisconsin, where a federal court had modified election rules, and in Pennsylvania, where the state supreme court had done so, relying on “the authority of state courts to apply their own constitutions to election regulations."
Still, other courts are running with the interpretation favored by the four conservative justices. On Thursday, a federal appeals court voted 2-1 to order Minnesota to separate late-arriving mail-in ballots, finding that a state court-ordered buffer period was likely illegal. Their reasoning? Plucked more or less straight from Kavanaugh's Wisconsin concurrence.
Rehnquist's theory poses greater risks to Democrats than Republicans, at least in the near term. Over the past decade or so, Republicans have done an impressive job of taking over state legislatures. In the key swing states of North Carolina and Pennsylvania, there is a Democratic governor, a liberal majority on the state supreme court, and a Republican-controlled legislature. Biden's lawyers surely would prefer their odds in the supreme courts of those states than in a U.S. Supreme Court that's more conservative than it's been in decades.
