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.
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.”
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