From Brian's thread:
Text of USSC Stay:
Cite as: 531 U. S. ____ (2000) 1 Cite as: 531 U. S. ____ (2000) 1
SCALIA, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 00-949 (00A504)
_________________ GEORGE W. BUSH ET AL. v. ALBERT GORE, JR. ET AL.
ON APPLICATION FOR STAY
[December 9, 2000]
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 peti-tion
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 pre-
pared 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 1 1 /2 hours is allotted for oral argument.
JUSTICE SCALIA, concurring.
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’ 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 de-
ciding 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 “[c]ounting every legally cast vote ca[n]
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
vote[s].” 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,v 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 inter-
pretedby the Circuit Court, permits. If petitioner is cor-rect
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 ren
-ders a subsequent recount inaccurate.
For these reasons I have joined the Court’ s issuance vofstay, with a highly accelerated timetable for
resolving this case on the merits.v v Cite as: 531 U. S. ____ (2000) 1
v STEVENS, J., dissentingv v SUPREME COURT OF THE UNITED STATES
_________________v v No. 00-949 (00A504)v
_________________
GEORGE W. BUSH ET AL. v. ALBERT GORE, JR. ET AL.
ON APPLICATION FOR STAY
[December 9, 2000]
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE BREYER join, dissenting.
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 questionsv whose resolution is committed at least in
large measure to
another branch of the Federal Government, we have con-strued
our own jurisdiction narrowly and exercised it
cautiously. On federal constitutional questions that werev not fairly presented to the court whose
judgment is being
reviewed, we have prudently declined to express an opin-ion.
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 unlessv 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 atv 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.” National Socialist Party of America v.
Skokie, 434 U. S. 1327, 1328 (1977) (STEVENS, J., in
chambers). Preventing the recount from being completed will inevitably cast a cloud on the legitimacy
of the elec-tion. It is certainly not clear that the Florida decision violated federal law. The Florida Code
provides elaborate proce-dures for ensuring that every eligible voter has a full and fair opportunity to
cast a ballot and that every ballot so cast is counted. See, e.g., Fla. Stat. §§ 101.5614(5), 102.166
(2000). In fact, the statutory provision relating to damaged and defective ballots states that “[n]o 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.” Fla. Stat. § 101.5614(5) (2000). 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 cor-rectly ascertaining the will of the voters as paramount. See
State ex rel. Chappell v. Martinez, 536 So. 2d 1007 (1998); Boardman v. Esteva, 323 So. 2d 259 (1976);
McAl-pin v. State ex rel. Avriett, 19 So. 2d 420 (1944); State ex rel. Peacock v. Latham, 169 So. 597,
598 (1936); State ex rel. Carpenter v. Barber, 198 So. 49 (1940). Its ruling also appears to be consistent
with the prevailing view in other States. See, e.g., Pullen v. Milligan, __ Ill.2d __, 561 N. E. 2d 585, 611
(Ill. 1990). 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. See Reynolds
v. Sims, 377 U. S. 533, 544–555 (1964); cf. Hartke v. Roudebush, 321 F. Supp. 1370, 1378–1379. (SD
Ind. 1970) (STEVENS, J., dissenting); accord Roudebush v. Hartke, 405 U. S. 15 (1972). Accordingly, I
respectfully dissent. |
