by Joe Shea
American Reporter Correspondent
December 10, 2000
WASHINGTON, Dec. 10, 2000 -- In an unusual display of the "judicial activism" they often deplore, five justices of the U.S. Supreme Court apparently decided the 2000 presidential election between Vice President Al Gore and Texas Gov. George W. Bush on Saturday, when they granted a temporary injunction against a manual recount of "undervotes" ordered by the Florida Supreme Court on Friday. (The full text of the decision is below).
The Florida recount had barely begun - although 13 counties actually completed it - and had already reduced the margin of victory to less than 100 votes when, at the request of Gov. Bush's lawyers, the high court stepped in and by a 5-4 vote ordered the counting stopped.
The court set a 90-minute hearing for11 a.m. EST Monday, one day before electors must be certified to Congress from all 50 states. Briefs were to be filed by 4 p.m. Sunday.
The court's discussion of an emergency motion by Gov. Bush was probably one of the most bitter ever recorded in modern times, and openly telegraphed the position of each justice on the case that will be decided by them sometimes after Monday's arguments. That is without precedent, legal observers say.
"Abandoning all pretense of unanimity, the U.S. Supreme Court's liberal and conservative members openly attacked each other yesterday over whether to stop the manual recounting of ballots in Florida," said a front page analysis in Sunday's Washington Post.
"Now we know. They are just like the rest of us, split right down the middle, divided into two hostile groups," said the venerable R.W. Apple on the front page of Sunday's New York Times.
"Their credibility is so diminished, and their moral posture is so diminished, it will take years to repair," said Vermont's Democratic U.S. Sen. Patrick J. Leahy, the ranking member of the Senate Judiciary Committee.
Writing for the minority, Associate Justice John Paul Stevens said the court's order could "be tantamount to a decision on the merits. ... Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." In other words, by doing so on the eve of the electors' certification, the court's conservative majority - not the votes of Florida citizens - determines the winner.
The court's decision to intervene in an electoral process that would have identified the true winner of Florida's 25 electoral votes and, with them, the White House, is an act that has the potential to undermine the national consensus that underwrites the Constitution of the United States. It comes at a time when tens of millions of new Americans are just beginning to grasp the concept of a constitutional democracy for the first time.
Undoubtedly, many of those Americans are shocked and dismayed to see America's highest court acting like less reputable bodies in Burma or Cuba - nations they left behind because courts could take away such rights without recourse. Those citizens, having come from nations where civil wars are common, may be easy fodder for those who might want to foment discord amid a breakdown of the federal system, whether real or perceived. Indeed, one of the first signs spotted when demonstrations over their counts began in Florida more than a month ago said "Let the civil war begin."
While it is often thought that extreme right-wing conservatives are better prepared to fight such a war, they may also be relatively few in number compared to the tens of millions of poor minority Americans who can be persuaded to take up bricks, if not arms, in defense of the United States. In any case, it now appears that election-related violence is likely to erupt at any time, and may be beyond the ability of either candidate to easily contain.
Even if the high court ultimately allows the count to go forward and Vice President Gore wins more votes than Gov. Bush, it's not clear that a new slate of electors representing the state would be accepted by a Republican Congress or that the state's governor - Bush's brother Jeb - would allow the votes to be certified.
Mr. Gore could still win, however, if the Supreme Court finds that the Dec. 12 deadline for certification will not be nullified if electoral slates are amended prior to Dec. 18, when Congress must act on the results and name a president, and then permits the undervote recount to finish.
The most remote possibility is that a judgment against voters in Seminole and Martin counties would be reversed on appeal in the federal courts and give the Vice President victory.
Absent that, the end is very near for the Gore campaign. Yet it is far from resolved that he truly lost the tightest presidential race in history.
The majority offered an opinion by Justice Antonin Scalia, in which Chief Justice William H. Rehnquist, Justice Sandra Day O'Connor, Justice Clarence Thomas and Justice Anthony M. Kennedy concurred.
Writing a dissent to the stay was Justice John Paul Stevens, in which Justice David Souter, Justice Ruth Bader Ginsburg and Justice Stephen G. Breyer concurred:
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 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, Dec. 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 the briefs prepared in compliance with Rule 33.1. The case is set for oral argument on Monday, Dec. 11, 2000, at 11 a.m., and a total of 1 1/2 hours allotted for oral argument.
BY JUSTICE SCALIA, Concurring
Though it is not customary for the court to issue an opinion in connection with its grant of stay, I believe a brief response is necessary to Justice Stevens's dissent. I will not address the merits of this 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 the 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.
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 recount 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.