Every other week, the 13 Democrats in Florida’s congressional delegation meet over Zoom. They have a lot to talk about these days: COVID-19 relief negotiations, Donald Trump’s increasingly desperate provocations, the brutal hurricane season, Russian and Iranian campaigns to sway the presidential election. But recently another topic’s been on the “front burner,” in the words of Tampa congresswoman Kathy Castor: the multilayered, and sometimes hyperlocal, legal maneuvering over Floridians’ votes. That’s in no small part because they’re still haunted by the state’s last election-deciding presidential recount two decades on. It’s also because they’re desperate to avoid another one with Florida as likely as ever to play a decisive role in the race for the White House and Trump’s campaign openly trying to make it harder to vote. At the very least, they want to be fully ready if absolutely necessary.
So does Joe Biden.
In recent weeks the Democratic nominee and his party have been training outsize financial and legal resources on Florida to either avert or prepare for a recount, which would automatically be triggered if the final margin between Biden and Donald Trump is half a percentage point or less. Biden’s team has 4,000 lawyers on standby or working already in Florida. On the ground, Democratic attorneys have examined the ballot designs in each of Florida’s 67 counties to make sure they know about potential problem areas for voters in advance. (Remember 2000’s “butterfly ballots” in Palm Beach County?) And in every county they’ve also been closely monitoring the daily work of the canvassing boards, the local officials who’ve been counting the state’s early votes for three weeks now. The goal: to make sure as many votes count as possible, which they hope would provide Biden a clear margin of victory, ideally next Tuesday night.
Biden has been lawyering up nationwide, too. In recent months he brought his informal adviser Bob Bauer, a former Obama White House general counsel, officially onto the campaign team to work with general counsel Dana Remus, another former Obama White House lawyer. At the same time, Biden tapped former Attorney General Eric Holder to coordinate legal strategies and messages between Democratic groups and officials and tasked former solicitors general Donald Verrilli and Walter Dellinger with preparing to combat Trump’s efforts to sow doubt on the results or to stop votes from being counted. Biden’s campaign has also dispatched a team led by the party’s leading election lawyer, Marc Elias, to get ready for Election Day litigation over GOP voter suppression, a continuation of his preelection lawsuits across the country.
Florida is hardly the only state that’s likely to be close or potentially messy. But this show of local and national legal force is, in part, a preemptive strike against the kind of legal chaos that went on for more than a month in Florida after Election Day 2000, between George W. Bush and Al Gore, that ended with the Supreme Court stopping the recount and handing the state and the presidency to Bush. It’s also intended as a bulwark against whatever Trump — who’s been warning, baselessly, of voter fraud for years, who’s encouraged some people to vote twice, and who’s resisted the legitimacy of votes counted after November 3 — does next. “We do not underestimate what Donald Trump might be thinking of trying to do, but we are also very confident in our legal response to whatever that would be,” Biden deputy general counsel Patrick Moore told me.
Any responsible campaign would look at Trump’s threats and at Florida, the perennial toss-up, where Biden leads by around two points in the FiveThirtyEight polling average, and conclude that preparing like this is reasonable. The Trump team, too, has lawyers at the ready in the state, and Republicans have been battling Democrats on voting-rights cases across the country for months. In many cases the local lawyers mobilized by the national Democratic team have been playing a similar role for the party for years, and a Biden aide said the campaign had hired twice as many “voter protection” staffers as Hillary Clinton’s had four years ago, while a Democratic National Committee official pointed out that the party had put such operatives on the ground in battleground states earlier than ever before.
Yet publicly, Biden and his campaign team seldom directly engage with Trump’s attacks on the integrity of the election, finding them not only dangerous but also politically treacherous to respond to without inadvertently elevating them. They frequently insist Trump would have no choice to concede if Biden wins the election clearly. In private, many Florida Democrats — who are used to hearing the national party insist they are ready to take legal challenges over vote counting to the Supreme Court — say they’re still nervous about the coming days, especially considering justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett all assisted the Bush team’s recount work in 2000.
“The Biden team clearly understands that in the Trump organization they’re not just going up against someone who challenges the rule of law, but who does not believe in the rule of law,” said Fernand Amandi, a veteran Florida pollster and strategist. The state’s election laws have undergone significant reforms and streamlining since 2000’s recount, and even since 2018’s recounts in several races. But, Amandi continued, “This is more than just a bare-knuckle fight. This is jungle politics here, where only one comes out alive. At the very least, they’re going to need the greatest assemblage of lawyers since the [O.J.] Simpson defense team.”
Elias, for one, is a veteran of recounts, including the one over Bill Nelson’s Senate seat two years ago, though Nelson lost. And Ron Klain, one of Biden’s closest advisers and his potential White House chief of staff, was the general counsel for Gore’s recount. “I kind of liken it to the fact that, because we have so many hurricanes and tropical storms, we have a very effective emergency management system that is county-based. And since the 2000 election, we’ve focused on strengthening our election operations as well,” said Castor, the congresswoman.
Still, in 2000 Democrats were caught off guard politically more than legally due to Republicans’ aggressive national messaging, which complicated Gore’s efforts to demand a full, fair recount. This time, Biden-aligned liberal political groups and super-PACs have already been discussing their possible role in providing him cover by driving home a message demanding a fair count, according to Democrats familiar with the conversations. “We’ve had four years of the president’s constant efforts to undermine the people’s faith in our institutions and, in a really concerted way over the past few months, an effort to try to undermine peoples’ faith in our elections,” said Boca Raton congressman Ted Deutch. “So this isn’t something that he’s springing on us: He’s told us what he intends, and if there was any question, when he couldn’t even commit to a peaceful transfer of power, he put it in broad daylight.” When I emailed Donna Brazile, Gore’s campaign manager, about the party’s lessons learned from that year, she replied, simply, “Yes, the party is better prepared today than in 2000.”
Not that anyone wants it to get that far. Democrats are still focused on turning out as many marginal voters as possible in Florida, including with multiple last-second visits from Biden, Barack Obama, and Kamala Harris, and with an advertising blitz funded largely by Michael Bloomberg that’s completely overwhelmed the state’s airwaves. Deutch, for one, predicted Biden would win Florida and that this result would be known on Election Night. But Trump, of course, is equally reliant on the state he won by one percentage point in 2016: On Thursday he and Biden both rallied in Tampa, one of the state’s electoral prizes, as part of broader visits to the state.
“Even with all the technological advancements, and in electoral infrastructure, our elections are still decided by a hair,” said Castor. She pointed out that 2018’s Senate race — which ended in Nelson’s defeat to Rick Scott — may have gone the other way if not for Broward County’s ballot design that cost the Democrat almost his entire losing margin. “Even with all the investments, crap happens.”