The U.S. Supreme Court, its deep division on full publicdisplay, stopped the vote counting in Florida yesterday and set the stage fora ruling that could make George W. Bush the next president.
By a vote of 5-4, the court blocked a 22-hour-old ruling by the FloridaSupreme Court that required new hand counts of presidential ballots. Thejustices' action immediately jeopardized Vice President Al Gore's chances ofovertaking Bush.
The justices also agreed to hear Bush's challenge to the state decision. Itset a hearing, to run 90 minutes, for 11 a.m. tomorrow - a sign of jeopardyfor the Florida court's ruling.
One justice in the majority, Antonin Scalia, suggested that the actionmeant a majority believes that Bush "has a substantial probability of success"in his challenge.
The four dissenters in the case - aptly named George W. Bush vs. AlbertGore Jr. - also said that the court's action runs the risk of being"tantamount to a decision" in favor of Bush.
James A. Baker III, Bush's chief strategist in Florida, said the Texasgovernor was "very pleased" by the court's action but warned that the dizzyingmonth of ups and downs was not over because the court has not ruled on themerits of the case.
Gore's lead attorney, David Boies, said he remained optimistic that thevice president would ultimately prevail but that the Supreme Court's actionyesterday makes it "much more difficult" to complete the count by Dec. 12.That is the date by which Florida is supposed to finish picking its 25presidential electors, enough to give either candidate the White House.
Bush's lawyers asked the court to stop the counting, saying it threatenedto "imperil" his "proper receipt" of Florida's electoral votes and could wipeout his certified victory. Gore's attorneys resisted, arguing that Bush hadsuffered no legal harm from the counting and that if he did he could return tocourt with his constitutional challenge.
The Texas governor's statewide margin stood at 154 after the FloridaSupreme Court ruling Friday afternoon. The two campaigns were in dispute aboutwho had made gains during the recount yesterday before the Supreme Courtbrought it to a halt.
The Supreme Court agreed to hear the Bush appeal even before it had beentechnically filed. The court treated the Texas governor's "emergencyapplication" for a temporary stop to the counting as if it were the appealitself, and granted it, as Bush's attorneys had suggested in a one-sentencefootnote.
All nine justices were at work at the court yesterday. They issued theirorder five hours after Gore's lawyers had filed their response to Bush'srequest for a halt to the count.
The vice president's legal strategists had not expected the court to doanything until after a formal Bush appeal was filed last night.
Both sides stressed that what the justices had done was not a finaldecision in the case. The possibility remained that, after hearing the case,the court might yet uphold the Florida Supreme Court ruling or else decline todisturb it - either of which would permit the counting to resume.
That outcome appeared to be a long shot. Even Gore's attorneys saidprivately, before the court acted, that their cause would be in considerabletrouble if the court ordered a stop - even a temporary halt - to the counting.They conceded it would be a sign of the court's tilting toward Bush's ultimateclaim that he would be harmed if the counting went on.
The immediate effects of the court's order were twofold:
In their attempt to salvage his candidacy, Gore's lawyers were down to 50pages of legal writing, to be filed this afternoon, plus 45 minutes of oralargument tomorrow.
Bush's lawyers had the same space and time allotments to try to holdtogether a clearly sympathetic and controlling five-justice bloc - apparentlyan easier task.
If the court, in a final ruling that is expected after the hearing tomorrowor on Tuesday, strikes down the Florida Supreme Court decision, it probablywould return the electoral situation in Florida back to Nov. 18 or Nov. 26.
On both days, Bush was ahead by a narrow margin, but enough - 930 votes onNov. 18 and 537 on Nov. 25 - to make him the winner of Florida's 25 electoralvotes, and with them, the presidency by one vote more than the simple majorityof 270 that is required. Bush trails Gore in the electoral count vote by 267to 246.
Friday's 4-3 ruling by the Florida Supreme Court had endangered Bush's leadin the state, first because it substantially reduced Bush's margin - down to154 votes - and second because it set off a new round of counting about 40,000Florida ballots with the prospect that Gore could win.
That risk to Bush will end if the U.S. Supreme Court overturns the statecourt decision. Another effect of such a ruling would be to make itunnecessary for the Republican-controlled Florida Legislature to name a slateof Bush electors as a way of bringing the state's presidential balloting to anend. The Legislature will be in special session tomorrow to consider itsoptions.
Yesterday's order by the U.S. Supreme Court contained no explanation as towhy a majority was blocking continued counting or why it was willing to hearBush's challenge. It seldom explains such actions.
But, in a break with custom, Scalia offered an explanation without sayingwhether the other four in the majority agreed with him. Scalia did note thatit "is not customary for the court to issue an opinion in connection with itsgrant of a stay" - that is, an order to stop an action.
Scalia went on, however, to say he felt a need to react to the dissentingjustices, and particularly to their argument that Bush was not in danger ofsuffering any legal harm at this stage.
In response, Scalia first used his opinion to note that the majority, byacting as it did, showed it believes "that the petitioner [Bush] has asubstantial probability of success." That is one of the tests that a partybefore the court must meet in order to get a temporary order blocking a lowercourt ruling.
Scalia then turned to the issue of potential harm to Bush from continuedcounting. One of the issues in the case, he said, is whether the votes beingcounted had been cast legally by Florida voters.
If they were not, he said, their counting "does threaten irreparable harmto petitioner, and to the country, by casting a cloud upon what he claims tobe the legitimacy of his election."
"Count first and rule upon legality afterwards, is not a recipe forproducing election results that have the public acceptance democraticstability requires," Scalia said.
He said another issue in the case was the use of varying standards todecide how to count disputed ballots, a lack of legal uniformity that Bushcontends violates a whole series of constitutional rights his and those ofFlorida voters who support him.
In the majority that approved the order, along with Scalia, were ChiefJustice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra DayO'Connor and Clarence Thomas, the court's four other most conservativemembers.
Justice John Paul Stevens, the court's senior associate justice, spoke forthe four dissenters, the court's bloc of liberals and moderates that alsoincludes Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.
Stevens accused the majority of departing from "three venerable rules ofjudicial restraint that have guided the court throughout its history."
Those, he said, were showing respect for state supreme courts' opinions onstate law, taking a narrow approach to its own authority when cases involvedanother branch of the federal government - here, the presidency - and givingopinions on federal constitutional issues "not fairly presented" to the lowercourt.
Turning to the question of whether Bush's presidential cause had beenharmed, the dissenters said no. "Counting every legally cast vote cannotconstitute irreparable harm," he said. Stevens added that an order blockingfurther counting might cause Gore and the public harm because that "would betantamount to a decision in favor of" Bush.
The dissenters said that "preventing the recount from being completed willinevitably cast a cloud on the legitimacy of the election."
The Supreme Court's order
Order issued yesterday to stop manual recounts in Florida:
The application for stay presented to Justice Kennedy and by him referredto the Court is granted, and it is ordered that the mandate of the FloridaSupreme Court, case No. SC00-2431, is hereby stayed pending further order ofthe court.
In addition, the application for stay is treated as a petition for a writof certiorari, and the petition for a writ of certiorari is granted. Thebriefs of the parties, not to exceed 50 pages, are to be filed with the Clerkand served upon opposing counsel on or before 4 p.m. Sunday, December 10,2000. Rule 29.2 is suspended in this case.
Briefs may be filed in compliance with Rule 33.2 to be replaced as soon aspossible with briefs prepared in compliance with Rule 33.1.
The case is set for oral argument on Monday, December 11, 2000, at 11 a.m.,and a total of 11 / 2 hours is allotted for oral argument.
Statement by Justice John Paul Stevens, who dissented:
To stop the counting of legal votes, the majority today departs from threevenerable rules of judicial restraint that have guided the Court throughoutits history. On questions of state law, we have consistently respected theopinions of the highest courts of the States.
On questions whose resolution is committed at least in large measure toanother branch of the Federal Government, we have construed our ownjurisdiction narrowly and exercised it cautiously.
On federal constitutional questions that were not fairly presented to thecourt whose judgment is being reviewed, we have prudently declined to expressan opinion. The majority has acted unwisely.
Time does not permit a full discussion of the merits. It is clear, however,that a stay should not be granted unless an applicant makes a substantialshowing of a likelihood of irreparable harm. In this case, applicants havefailed to carry that heavy burden. Counting every legally cast vote cannotconstitute irreparable harm.
On the other hand, there is a danger that a stay may cause irreparable harmto the respondents and, more importantly, the public at large because of therisk that "the entry of the stay would be tantamount to a decision on themerits in favor of the applicants." Preventing the re-count from beingcompleted will inevitably cast a cloud on the legitimacy of the election.
It is certainly not clear that the Florida decision violated federal law.The Florida Code provides elaborate procedures for ensuring that everyeligible voter has a full and fair opportunity to cast a ballot and that everyballot so cast is counted.
In fact, the statutory provision relating to damaged and defective ballotsstates that "no vote shall be declared invalid or void if there is a clearindication of the intent of the voter as determined by the canvassing board."
In its opinion, the Florida Supreme Court gave weight to that legislativecommand. Its ruling was consistent with earlier Florida cases that haverepeatedly described the interest in correctly ascertaining the will of thevoters as paramount. Its ruling also appears to be consistent with theprevailing view in other States.
As a more fundamental matter, the Florida court's ruling reflects the basicprinciple, inherent in our Constitution and our democracy, that every legalvote should be counted.
Accordingly, I respectfully dissent.
Statement by Justice Antonin Scalia, who voted with the majority:
Though it is not customary for the Court to issue an opinion in connectionwith its grant of a stay, I believe a brief response is necessary to JusticeStevens's dissent. I will not address the merits of the case, since they willshortly be before us in the petition for certiorari that we have granted.
It suffices to say that the issuance of the stay suggests that a majorityof the court, while not deciding the issues presented, believe that thepetitioner has a substantial probability of success.
On the question of irreparable harm, however, a few words are appropriate.The issue is not, as the dissent puts it, whether "counting every legally castvote can constitute irreparable harm."
One of the principal issues in the appeal we have accepted is preciselywhether the votes that have been ordered to be counted are, under a reasonableinterpretation of Florida law, "legally cast votes."
The counting of votes that are of questionable legality does in my viewthreaten irreparable harm to petitioner, and to the country, by casting acloud upon what he claims to be the legitimacy of his election.
Count first, and rule upon legality afterwards, is not a recipe forproducing election results that have the public acceptance democraticstability requires.
Another issue in the case, moreover, is the propriety, indeed theconstitutionality, of letting the standard for determination of voters' intent-- dimpled chads, hanging chads, etc. -- vary from county to county, as theFlorida Supreme Court opinion, as interpreted by the Circuit Court, permits.
If petitioner is correct that counting in this fashion is unlawful,permitting the count to proceed on that erroneous basis will prevent anaccurate recount from being conducted on a proper basis later, since it isgenerally agreed that each manual recount produces a degradation of theballots, which renders a subsequent recount inaccurate.
For these reasons I have joined the Court's issuance of stay, with a highlyaccelerated timetable for resolving this case on the merits.