Florida recount haunts Supreme Court as it tackles mail ballots

The Supreme Court this week considered cases from a trio of battleground states involving an issue that is central to this pandemic election: the treatment of mail ballots.

As it did so, many observers could not help but be reminded of a fraught US election from 20 years ago: The 2000 Florida recount, in which the Supreme Court’s extraordinary intervention delivered the White House to George W Bush.

“What happened in Bush vs Gore, we’re hearing an echo of it now in Pennsylvania,” said Matthew Seligman, a Supreme Court litigator and lecturer at Harvard Law School.

Mr Seligman was referring, specifically, to the fact that those cases have rekindled the same knotty Constitutional question that was at issue in Florida in 2000: whether a state’s legislature should have the ultimate authority over its election rules.

In Pennsylvania, in particular, that determination could have enormous consequences this year. It would mean the difference between counting only ballots that arrive by the election day deadline, as decreed by the state’s Republican-controlled legislature, or including ballots that arrive up to three days later, as ordered by the Pennsylvania Supreme Court.

It is one of the many ways that the watershed 2000 election — which caused many Americans to question the Supreme Court’s cherished reputation for impartiality — is rippling through this contest 20 years later.

Earlier this week, speaking about her fear of voter intimidation and election day violence, Sherilynn Ifill, president of the NAACP Legal Defence Fund, invoked the “Brooks Brothers riot,” in which well-attired Republican protesters rushed the office of the Miami-Dade election supervisor in November 2000 to force the shutdown of the recount.

“My fear is that this time there might be another Brooks Brothers riot without suits, with people carrying AR-15s,” Ms Ifill said. 

A striking reminder of that contest is the composition of the Supreme Court itself. Three of its conservative justices, John Roberts, Brett Kavanaugh and Amy Coney Barrett, worked on the Bush legal team during the Florida recount.

Brett Kavanaugh © Getty Images
Amy Coney Barrett © REUTERS

Their elevation may be explained, in part, by another phenomenon that election lawyers and political scientists attribute to Florida 2000: a growing litigiousness surrounding US presidential elections, what Mr Seligman calls “the legalisation of presidential elections”.

Twenty years ago, Democrats and Republicans scrambled to assemble legal teams after election day as Florida fell into dispute. This year, battalions of lawyers for both sides are already fighting hundreds of cases across the country that deal with voting issues. What was once a peripheral struggle, say legal experts, has now moved to the foreground.

“I definitely think the increased litigiousness of political parties [and] candidates today — and the widespread perception that elections can be won or lost in court — is a direct result of Florida 2000,” said Nicolas Riley of the Georgetown University Legal Center. “You can see that perception reflected in the sheer number of lawyers that the campaigns hire now, which has increased every election cycle since 2000.”

The most lasting legacy of Florida may be how Americans regard the Supreme Court, and whether it will again play a decisive role in a presidential election — something it had not previously done.

“The Supreme Court’s power and its role in American society depends on the fact that people think that it’s legitimate. And Bush vs Gore was a turning point for that,” Mr Seligman said, tracing a line from the Florida recount to a brewing debate today about packing a court that many believe has become overly partisan.

For that reason, David Boies, the eminent litigator who represented the Gore campaign 20 years ago, is convinced that justices are mindful of the damage done by Bush vs Gore and will do their utmost to avoid the fray.

“One of the legacies is the undesirability — to use as neutral a word as I can — for the Supreme Court to get involved . . . in trying to influence in a partisan way the outcome of elections, particularly presidential elections,” Mr Boies said.

He added: “Bush vs Gore was the first time that the United States Supreme Court — or the federal courts, generally — had ever intervened to decide a presidential election. And I think the almost uniform reaction among Constitutional scholars, both conservative and liberal, was that that had been a mistake.”

Still, several cases have already risen to the court. If the election is close, then additional challenges over mail ballots will almost certainly come its way after election day.

In Pennsylvania, one of the most hotly contested swing states, election officials have already issued orders to segregate late-arriving mail ballots in preparation for future litigation. The state’s divided government — with a Democratic governor and Republican-controlled assembly — have added to the tension. 

Pennsylvania Republicans had petitioned the US high court to overturn the state supreme court’s mail ballot extension before election day. Their request was denied, the second defeat for Republicans after Mr Roberts joined with the court’s three liberal justices last week.

Yet in Wisconsin, the court effectively blocked a similar mail ballot extension favoured by Democrats. Those two decisions revealed a crucial faultline among the Supreme Court’s dominant conservative wing.

Mr Roberts took a dim view of the Wisconsin extension because a federal judge had ordered it, and so, he reasoned, was interfering in state affairs. The Pennsylvania extension could stand, by contrast, because Mr Roberts was deferring to the right of state courts to interpret their own laws.

The same deference appeared to prevail in the North Carolina case, where a state elections board had extended ballot deadlines with the approval of a state court.

But Mr Roberts’ conservative colleagues wished to go further: They believe that state legislatures — not state courts — should have the final say over election procedures in any circumstance.

Mr Kavanaugh even cited an argument to that effect by William Rehnquist, then chief justice, in Bush vs Gore, writing that the Constitution “requires” federal courts such as the Supreme Court “to ensure that state courts do not rewrite state election laws”.

Mr Rehnquist failed to muster a majority in 2000 — although conservative justices found a separate rationale to halt a recount ordered by Florida’s Supreme Court with Mr Bush still ahead of vice-president Al Gore by 537 votes.

All this has stirred speculation about what will happen if such issues return in the coming days now that a fifth conservative justice, the recent Trump-appointee Amy Coney Barrett, is on the court. Whether she aligns with Mr Roberts or with the other conservatives could determine how willing the Supreme Court is to rerun Florida 2000 in present-day Pennsylvania. 

Ms Barrett is something of an enigma on election law issues. Though a staunch conservative, she has not previously written about or ruled on such questions.

“It would be foolhardy at this stage, before she has addressed any of these issues, to predict” where Barrett would come down, said Richard Pildes, a professor at the New York University School of Law.

Mr Boies, who experienced the heat of Florida first hand, remained hopeful that the Roberts court would keep its distance from the election. Justices would inevitably divide on ideological grounds, he acknowledged, but he believed they were mindful of the stakes and would be loath to tip the scales. 

“If the Republicans on the court wanted to try to use their position to help Republican candidates there are considerable opportunities for them to do that,” Mr Boies said, noting their 6-3 majority. But, he added: “I don’t think they will. I think both Republicans and Democrats on the court recognise that the court’s integrity, respect for the court, depends on the court not being seen as partisan.”

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