CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 3/16/2023 1

2018 Recount Deadlines in Florida 

Jim Bonfiglio Campaign v. Detzner (4:18-cv-527) 

and Bill Nelson for U.S. Senate v. Detzner (4:18-cv-536) 

(Mark E. Walker, N.D. Fla.) 

After a state judge indicated that she would provide a candidate with 

relief in an action seeking a deadline extension for a recount in one 

county, but before the state judge actually ruled, the state’s secretary 

of state removed the action to federal court. After taking evidence 

from county defendants, the federal judge issued an order declaring 

that county election officials had discretion to recount the plaintiffs’ 

race for the state legislature ahead of statewide races, because the 

plaintiffs’ race could be recounted more quickly. Based on evidence 

in this case, the district judge determined in a second removed case 

involving a U.S. senate race that court relief was not required. 

Subject: Recounts. Topics: Recounts; removal; intervention; 

matters for state courts. 

State actions seeking deadline extensions for recounts—in a state legislature 

race and in a U.S. senate race—were removed to federal court, and the recounts were completed on time with limited relief provided by the federal 

judge. 

The State Legislature Race 

One week after the November 6, 2018, general election, Florida’s secretary of 

state removed an action filed on the previous day in Florida’s circuit court for 

Leon County, the county that includes the state capital: a candidate for the 

state legislature and his campaign sought a recount extension for Palm Beach 

County.1 Initial election returns showed the plaintiff candidate trailing his opponent by thirty-seven votes out of more than eighty thousand votes cast.2

Following a case-management conference in state court on November 13, 

the state judge indicated that she would grant the plaintiffs relief, but the secretary removed the case that afternoon before she could do so.3

Judge Mark E. Walker ordered the defendants, which also included Palm 

Beach County’s canvassing board and its supervisor of elections, to respond 

1. Notice of Removal, Jim Bonfiglio Campaign v. Detzner, No. 4:18-cv-527 (N.D. Fla. Nov. 

13, 2018), D.E. 1; see Daniel Chang, Alex Daugherty & Maya Kaufman, Dade Finishes Its Machine Recount as Broward Starts Process, Miami Herald, Nov. 14, 2018, at 1A; Jeffrey Schweers, 

Seven Lawsuits and Counting: Tallahassee Is Ground Zero, Tallahassee Democrat, Nov. 14, 

2018, at A6; David Smiley, Kyra Gurney, Steve Bousquet & Emily L. Mahoney, It’s “Prayer 

Mode” as Legal Decisions and Deadlines Loom, Miami Herald, Nov. 15, 2018, at 1A. 

2. Opinion at 1–2, Jim Bonfiglio Campaign, No. 4:18-cv-527 (N.D. Fla. Nov. 16, 2018), D.E. 

53 [hereinafter Jim Bonfiglio Campaign Opinion]. 

3. Id. at 2–3; see Frances Robles & Patricia Mazzei, Aging Machines and Legal Wrench 

Could Make Recount “a Little Messy,” N.Y. Times, Nov. 15, 2018, at A16. 
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by 5:00 p.m. on November 14 to the plaintiffs’ request for immediate declaratory and injunctive relief.4

 Judge Walker granted motions to intervene filed by 

the National Republican Senatorial Committee5 and the campaigns for the 

Democratic Party’s gubernatorial6 and senate nominees7 (races that were also 

facing recounts). 

Following the briefing, Judge Walker determined that he needed evidence 

from the county defendants “on the status and expected completion dates of 

the various ordered recounts,” so he set an evidentiary hearing for November 

15 at 4:00 p.m.8

The hearing lasted from 5:12 to 6:23.9 Judge Walker heard testimony from 

Palm Beach County’s supervisor of elections, but he did not require her to fly 

to Tallahassee at a time when the time pressure on her work was the very subject of the lawsuit.10 Nor did he require her to provide testimony from a local 

courthouse.11 An advantage of her providing testimony from her election site 

was that she could pause during her testimony to obtain additional information from her staff.12 The plaintiffs’ lawyer was with the witness, and the 

other lawyers were in the courtroom.13

On November 16, Judge Walker granted the plaintiffs limited interim relief.14 Reluctant to rewrite statutory deadlines, Judge Walker nevertheless recognized that “the extremely limited functionality of Palm Beach County’s tabulating machines” would make it difficult for the county to complete recounts 

for the plaintiffs’ race and three statewide races in time.15 The relief that Judge 

4. Order, Jim Bonfiglio Campaign, No. 4:18-cv-527 (N.D. Fla. Nov. 13, 2018), D.E. 4. 

Tim Reagan interviewed Judge Walker for this report by telephone on December 12, 2018. 

5. Order, Jim Bonfiglio Campaign, No. 4:18-cv-527 (N.D. Fla. Nov. 13, 2018), D.E. 5; see 

Intervention Motion, id. (Nov. 13, 2018), D.E. 2. 

6. Order, id. (Nov. 14, 2018), D.E. 17; see Intervention Motion, id. (Nov. 14, 2018), D.E. 

13. 

7. Order, id. (Nov. 15, 2018), D.E. 36; see Intervention Motion, id. (Nov. 14, 2018), D.E. 

32. 

8. Order, id. (Nov. 15, 2018), D.E. 42; see Minutes, id. (Nov. 15, 2018), D.E. 49 (noting that 

the hearing ran from 5:12 to 6:23 p.m.). 

9. Transcript, id. (Nov. 15, 2018, filed Nov. 15, 2018), D.E. 52 [hereinafter Jim Bonfiglio 

Campaign Transcript]. 

10. Interview with Hon. Mark E. Walker, Dec. 12, 2018. 

11. Id. 

12. Id. 

13. Jim Bonfiglio Campaign Transcript, supra note 9, at 4–6. 

14. Jim Bonfiglio Campaign Opinion, supra note 2. 

15. Id. at 2, 5–6 (noting that the statewide races were for senator, governor, and commissioner for agriculture); see Daniel Chang, Elizabeth Koh & Nicholas Nehamas, Legal Sparring 

Continues; Recounts Get Uneven Start, Miami Herald, Nov. 13, 2018, at 1A; David Smiley & 

Douglas Hanks, Game On: Recount Ordered in Three Statewide Races, Miami Herald, Nov. 11, 

2018, at A1. 

“Adding to the legal woes, Palm Beach County Supervisor of Elections Susan Bucher told 

[Secretary of State] Detzner that her voting equipment, certified by his office, can’t recount 

ballots in more than one race at one time.” Steve Bousquet, Memories of Chads Hang Over 

State as Lawyers Line Up, Miami Herald, Nov. 9, 2018, at 2A; see Robles & Mazzei, supra note 

3 (“Palm Beach County does not own the modern, high-speed tabulation machines required 
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Walker ordered was a declaration that the order in which the county conducted the recounts was within the sound discretion of the canvassing board; 

the recounts did not have to be conducted in the order in which the races appeared on the ballot; and evidence showed that the legislature race could be 

recounted more quickly than the others because it involved fewer precincts.16

The board did vote to reorder the recounts, and it completed the recount 

for the legislature race on time.17 The plaintiffs then voluntarily dismissed the 

action.18

The U.S. Senate Race 

On the morning of Friday, November 16, the secretary removed another action regarding the Palm Beach County recount, this one filed in state court on 

the previous day by the ultimately unsuccessful campaign to reelect U.S. Senator Bill Nelson.19 On the day that the case was removed, Judge Walker granted 

the National Republican Senatorial Committee’s motion to intervene in opposition to the case.20

Because of testimony on November 15 in the other case—in which Senator 

Nelson’s campaign had intervened—expressing informed optimism about the 

completion of the recount in Palm Beach County, Judge Walker ordered the 

parties to “file briefs no later than 4:00 p.m. on November 16, 2018 to clarify 

whether there is a live issue in this matter.”21

The campaign “respectfully request[ed] that the Court enter an order compelling Palm Beach County to release the results of the machine recount by no 

later than 6:00 p.m. so as to allow the parties to evaluate those numbers and to 

report to the Court whether a continuing controversy exists.”22 Judge Walker 

set the case for a telephonic hearing at 6:00 p.m.23

After conversations among counsel before the hearing and at the hearing, 

the plaintiff’s counsel expressed reassured confidence: “Based on the representations on the record, we are satisfied that Palm Beach County has represented 

that it will be using the machine recount figures, and we will wait for those 

results.”24 On Monday, Judge Walker noted, “During the hearing, the parties 

to conduct recounts in multiple races simultaneously”). 

16. Jim Bonfiglio Campaign Opinion, supra note 2, at 6–9. 

17. Order Supplement, Jim Bonfiglio Campaign v. Detzner, No. 4:18-cv-527 (N.D. Fla. 

Nov. 19, 2018), D.E. 56. 

18. Notice of Dismissal, id. (Nov. 19, 2018), D.E. 55. 

19. Notice of Removal, Bill Nelson for U.S. Senate v. Detzner, No. 4:18-cv-536 (N.D. Fla. 

Nov. 16, 2018), D.E. 1; Transcript at 3, 5, id. (Nov. 16, 2018, filed Nov. 16, 2018), D.E. 24 

[hereinafter Bill Nelson for U.S. Senate Transcript]. 

20. Order, id. (Nov. 16, 2018), D.E. 4; see Intervention Motion, id. (Nov. 16, 2018), D.E. 3. 

21. Order, id. (Nov. 16, 2018), D.E. 12. 

22. Response, id. (Nov. 16, 2018), D.E. 20. 

23. Order, id. (Nov. 16, 2018), D.E. 21; see Bill Nelson for U.S. Senate Transcript, supra 

note 19, at 3 (“THE COURT: . . . Given the timing of this action, as well as the deadlines that 

are implicated associated with the recount, I thought it appropriate to immediately set this 

matter for a hearing . . . .”); Minutes, Bill Nelson for U.S. Senate, No. 4:18-cv-536 (N.D. Fla. 

Nov. 16, 2018), D.E. 23. 

24. Bill Nelson for U.S. Senate Transcript, supra note 19, at 15. 
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indicated that Palm Beach County’s use of its machine recount totals was appropriate. Accordingly, this Court directs the parties to explain if there remains a justiciable issue in this matter.”25 Ten days later, the campaign voluntarily dismissed its case.26

25. Order, Bill Nelson for U.S. Senate, No. 4:18-cv-536 (N.D. Fla. Nov. 19, 2018), D.E. 26. 

26. Voluntary Dismissal, id. (Nov. 29, 2018), D.E. 28.