WASHINGTON — The Supreme Court’s decision in Bush v. Gore 20 years ago was supposed to work like the tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.
“Our consideration is limited to the present circumstances,” the majority wrote. In other words: The decision was a ticket for one ride only, handing the presidency to George W. Bush and then disappearing. In the two decades that followed, only a single Supreme Court opinion ever cited the case, and that was a passing reference in a footnote to a 2013 dissent from Justice Clarence Thomas.
On Monday, Justice Brett M. Kavanaugh breathed new life into the decision, which on December 12, 2000 shut down a recount in Florida ordered by the state Supreme Court. He said the decision could play a role in deciding an election dispute now before the court and other potential challenges to election rulings from state courts.
Justice Kavanaugh’s remarks came in a concurring opinion explaining why the court, by a 5-to-3 vote, had been right to refuse to extend a deadline for counting absentee ballots in Wisconsin. Federal judges, he wrote, should not change state voting rules close to elections.
Then, in a long footnote, Justice Kavanaugh addressed a different question, one not before the court. Citing Bush v. Gore, he said federal courts do have a role to play in supervising state courts in some election disputes. Ordinarily state Supreme Courts have the last word on issues of state law.
“As Chief Justice Rehnquist persuasively explained in Bush v. Gore,” Justice Kavanaugh wrote, referring to a concurring opinion in that case, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”
“This is the most full-throated defense of the independent state legislative doctrine that we’ve had from the Supreme Court since the concurrence of Bush v. Gore,” said Nathaniel Persily, a law professor and political scientist at Stanford. “What that presages for postelection litigation this year is that in the event there is conflict with state courts and state legislatures, there are several justices on the Supreme Court who are leaning toward the legislatures.”
That would seem to benefit of Republicans in November, should any conflicts arise. Republicans control the state legislatures in many if not all of the major battleground states, including Michigan, Wisconsin, Florida, Pennsylvania, Arizona, Georgia, Ohio, Iowa, Texas and North Carolina.
Justice Kavanaugh’s view has not been widely accepted. Even in Bush v. Gore, it commanded only three votes, those of Chief Justice Rehnquist and Justices Antonin Scalia and Clarence Thomas. The other members of the majority, Justices Sandra Day O’Connor and Anthony M. Kennedy, did not join the chief justice’s concurrence. The unsigned majority opinion relied on equal protection principles and contained the admonition that it was “limited to the present circumstances.”
In dissent, Justice John Paul Stevens wrote: “When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the federal Constitution may require federal judicial intervention in state elections. This is not such an occasion.”
Dissenting in the case from Wisconsin on Monday, Justice Elena Kagan wrote that allowing state lawmakers free rein when the right to vote was at stake was a grave mistake.
“If there is one area where deference to legislators should not shade into acquiescence, it is election law,” she wrote. “For in that field politicians’ incentives often conflict with voters’ interests — that is, whenever suppressing votes benefits the lawmakers who make the rules.”
The most immediate impact of Justice Kavanaugh’s position could be in a case involving a request from the Pennsylvania Republican Party to block a ruling from the state’s highest court extending the deadline for receiving mailed ballots by three days. Last week, before the arrival of Justice Amy Coney Barrett, the court deadlocked 4 to 4 in the case, which allowed the extension to remain in place.
On one side of the divide were Chief Justice Roberts and the court’s three-member liberal wing. On the other were Justices Kavanaugh, Thomas, Neil M. Gorsuch and Justice Samuel A. Alito Jr. Neither side gave reasons.
The Pennsylvania Supreme Court had ruled that the three-day extension was required by the coronavirus pandemic and delays in mail service, and it ordered the counting of ballots clearly mailed on or before Election Day and of those with missing or illegible postmarks “unless a preponderance of the evidence demonstrates that it was mailed after Election Day.”
Anticipating Justice Barrett’s arrival, Pennsylvania Republicans have returned to the Supreme Court, now asking it to hear a full-blown appeal in the case with extraordinary speed and to issue a decision before Election Day. Justice Barrett’s vote will almost certainly be decisive.
In his concurring opinion on Monday, Justice Kavanaugh discussed the Supreme Court’s role in supervising state courts in election disputes.
“A federal court’s alteration of state election laws such as Wisconsin’s differs in some respects from a state court’s (or state agency’s) alteration of state election laws,” he acknowledged. “That said, under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections.”
“A state court may not depart from the state election code enacted by the legislature,” Justice Kavanaugh wrote.
In dissent on Monday, Justice Kagan detected an inconsistency in Justice Kavanaugh’s reasoning. She noted that he had criticized what he called a “federal-judges-know-best vision of election administration” when federal judges altered state election rules but had endorsed “an important federal judicial role in reviewing state-court decisions about state law.”
“It is hard to know,” Justice Kagan wrote, “how to reconcile those two views about the federal judiciary’s role in voting-rights cases.”
Chief Justice Roberts filed a brief concurrence in the Wisconsin case, parting ways from Justice Kavanaugh.
“While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes,” he wrote. “Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.”
The Florida recount that gave rise to Bush v. Gore has had extra resonance for both sides this election, the most litigated in recent history, with more than 400 suits filed.
Even 20 years later, Democrats still harbor bitter memories from the court’s 2000 decision, given that it ended a hand recount that aides in the Gore campaign believed might have delivered a different result.
In an odd coincidence, Justice Kavanaugh worked on the recount litigations in Florida, on the Republican side, as a young lawyer. So did Justice Barrett and Chief Justice Roberts.
Jim Ruttenberg and Nick Corasaniti contributed reporting.