Supreme Court, in 5-4 vote, halts recount, stinging Gore

The U.S. Supreme Court, its deep division on full public display, stopped the vote counting in Florida yesterday and set the stage for a 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 Florida Supreme Court that required new hand counts of presidential ballots. The justices' action immediately jeopardized Vice President Al Gore's chances of overtaking Bush.

The justices also agreed to hear Bush's challenge to the state decision. It set a hearing, to run 90 minutes, for 11 a.m. tomorrow - a sign of jeopardy for the Florida court's ruling.

One justice in the majority, Antonin Scalia, suggested that the action meant 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. Albert Gore 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 Texas governor was "very pleased" by the court's action but warned that the dizzying month of ups and downs was not over because the court has not ruled on the merits of the case.

Gore's lead attorney, David Boies, said he remained optimistic that the vice president would ultimately prevail but that the Supreme Court's action yesterday 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 25 presidential electors, enough to give either candidate the White House.

Bush's lawyers asked the court to stop the counting, saying it threatened to "imperil" his "proper receipt" of Florida's electoral votes and could wipe out his certified victory. Gore's attorneys resisted, arguing that Bush had suffered no legal harm from the counting and that if he did he could return to court with his constitutional challenge.

The Texas governor's statewide margin stood at 154 after the Florida Supreme Court ruling Friday afternoon. The two campaigns were in dispute about who had made gains during the recount yesterday before the Supreme Court brought it to a halt.

The Supreme Court agreed to hear the Bush appeal even before it had been technically filed. The court treated the Texas governor's "emergency application" for a temporary stop to the counting as if it were the appeal itself, and granted it, as Bush's attorneys had suggested in a one-sentence footnote.

All nine justices were at work at the court yesterday. They issued their order five hours after Gore's lawyers had filed their response to Bush's request for a halt to the count.

The vice president's legal strategists had not expected the court to do anything until after a formal Bush appeal was filed last night.

Both sides stressed that what the justices had done was not a final decision in the case. The possibility remained that, after hearing the case, the court might yet uphold the Florida Supreme Court ruling or else decline to disturb it - either of which would permit the counting to resume.

That outcome appeared to be a long shot. Even Gore's attorneys said privately, before the court acted, that their cause would be in considerable trouble 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 ultimate claim 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 50 pages of legal writing, to be filed this afternoon, plus 45 minutes of oral argument tomorrow.

Bush's lawyers had the same space and time allotments to try to hold together a clearly sympathetic and controlling five-justice bloc - apparently an easier task.

If the court, in a final ruling that is expected after the hearing tomorrow or on Tuesday, strikes down the Florida Supreme Court decision, it probably would 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 on Nov. 18 and 537 on Nov. 25 - to make him the winner of Florida's 25 electoral votes, and with them, the presidency by one vote more than the simple majority of 270 that is required. Bush trails Gore in the electoral count vote by 267 to 246.

Friday's 4-3 ruling by the Florida Supreme Court had endangered Bush's lead in the state, first because it substantially reduced Bush's margin - down to 154 votes - and second because it set off a new round of counting about 40,000 Florida ballots with the prospect that Gore could win.

That risk to Bush will end if the U.S. Supreme Court overturns the state court decision. Another effect of such a ruling would be to make it unnecessary for the Republican-controlled Florida Legislature to name a slate of Bush electors as a way of bringing the state's presidential balloting to an end. The Legislature will be in special session tomorrow to consider its options.

Yesterday's order by the U.S. Supreme Court contained no explanation as to why a majority was blocking continued counting or why it was willing to hear Bush's challenge. It seldom explains such actions.

But, in a break with custom, Scalia offered an explanation without saying whether the other four in the majority agreed with him. Scalia did note that it "is not customary for the court to issue an opinion in connection with its grant 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 dissenting justices, and particularly to their argument that Bush was not in danger of suffering any legal harm at this stage.

In response, Scalia first used his opinion to note that the majority, by acting as it did, showed it believes "that the petitioner [Bush] has a substantial probability of success." That is one of the tests that a party before the court must meet in order to get a temporary order blocking a lower court ruling.

Scalia then turned to the issue of potential harm to Bush from continued counting. One of the issues in the case, he said, is whether the votes being counted had been cast legally by Florida voters.

If they were not, he said, their counting "does threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election."

"Count first and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires," Scalia said.

He said another issue in the case was the use of varying standards to decide how to count disputed ballots, a lack of legal uniformity that Bush contends violates a whole series of constitutional rights his and those of Florida voters who support him.

In the majority that approved the order, along with Scalia, were Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Sandra Day O'Connor and Clarence Thomas, the court's four other most conservative members.

Justice John Paul Stevens, the court's senior associate justice, spoke for the four dissenters, the court's bloc of liberals and moderates that also includes Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.

Stevens accused the majority of departing from "three venerable rules of judicial restraint that have guided the court throughout its history."

Those, he said, were showing respect for state supreme courts' opinions on state law, taking a narrow approach to its own authority when cases involved another branch of the federal government - here, the presidency - and giving opinions on federal constitutional issues "not fairly presented" to the lower court.

Turning to the question of whether Bush's presidential cause had been harmed, the dissenters said no. "Counting every legally cast vote cannot constitute irreparable harm," he said. Stevens added that an order blocking further counting might cause Gore and the public harm because that "would be tantamount to a decision in favor of" Bush.

The dissenters said that "preventing the recount from being completed will inevitably 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 referred to the Court is granted, and it is ordered that the mandate of the Florida Supreme Court, case No. SC00-2431, is hereby stayed pending further order of the court.

In addition, the application for stay is treated as a petition for a writ of certiorari, and the petition for a writ of certiorari is granted. The briefs of the parties, not to exceed 50 pages, are to be filed with the Clerk and 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 as possible 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 three venerable rules of judicial restraint that have guided the Court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the States.

On questions whose resolution is committed at least in large measure to another branch of the Federal Government, we have construed our own jurisdiction narrowly and exercised it cautiously.

On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an 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 substantial showing of a likelihood of irreparable harm. In this case, applicants have failed to carry that heavy burden. Counting every legally cast vote cannot constitute irreparable harm.

On the other hand, there is a danger that a stay may cause irreparable harm to the respondents and, more importantly, the public at large because of the risk that "the entry of the stay would be tantamount to a decision on the merits in favor of the applicants." Preventing the re-count from being completed 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 every eligible voter has a full and fair opportunity to cast a ballot and that every ballot so cast is counted.

In fact, the statutory provision relating to damaged and defective ballots states that "no vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board."

In its opinion, the Florida Supreme Court gave weight to that legislative command. Its ruling was consistent with earlier Florida cases that have repeatedly described the interest in correctly ascertaining the will of the voters as paramount. Its ruling also appears to be consistent with the prevailing view in other States.

As a more fundamental matter, the Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote 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 connection with its grant of a stay, I believe a brief response is necessary to Justice Stevens's dissent. I will not address the merits of the case, since they will shortly 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 majority of the court, while not deciding the issues presented, believe that the petitioner 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 cast vote can constitute irreparable harm."

One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, "legally cast votes."

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.

Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.

Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters' intent -- dimpled chads, hanging chads, etc. -- vary from county to county, as the Florida 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 an accurate recount from being conducted on a proper basis later, since it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.

For these reasons I have joined the Court's issuance of stay, with a highly accelerated timetable for resolving this case on the merits.