Bush's brief isn't due until this afternoon, so what the hell did the majority base their opinion on that Bush was likely to prevail on the merits? There is no way in hell that those justices know what Bush will argue and what Gore will counter. The Florida S.Ct.'s decision itself was clear. The Fl.S.Ct. was deciding Florida state law. There's is nothing for the US S.Ct. to decide here, unless you accept the proposition that they are willing to ignore federalist principles and stare decisis to get Bush into office.
I assume the Court decided on the basis of the papers the Bush team filed to request the stay. That argument that the Court didn't know what the arguments were is ridiculous. I assume the arguments were laid out in those papers and that the arguments are very similar to the ones the USSC heard last go 'round. The unfairness inherent in the FL SC ruling is obvious. For instance the Court awarded Gore the votes the original Miami Dade recount turned up in the heavily Dem. precincts but the new ruling does not require all votes to be counted, (such as in heavily Repub districts) but only as to"undervotes". I think that with the FL Sc moving the goal posts yet again and failing to take the USSC hint last time, the stay was not only justified but required. Where did the new deadline the Circ. Ct. impose for Sunday come from? Seems like the counting process is a pretty clear violation of several federal principles, ie, equal protection, due process, separation o powers and the US Code governing the fixing of election laws and procedures PRIOR to the time of the election.
Second point, what is the irreparable harm to Bush? Irreparable harm usually refers to things like death penalty cases where am innocent person will be dead if the execution is stayed pending judicial review. So, what is the irreparable harm to Bush, that it might be revealed that he didn't really get more votes in Florida? That is called an election and it is not irreparable harm. Gore, on the other hand, will be irreparably harmed by a cessation of the vote count. It is unlikely that a decision will be handed down in time for the count to continue.
The irreparable harm was succinctly stated by Scalia. You can't count now then determine later if the count is lawful. If the Court later rules the method is inherently unfair or unlawful BUT the "votes" determined in such an unlawful count are made public, the legitimacy of probable Bush's Presidency will be undermined. As we can see, the Gore team has no resepct for the law as shown by Ron Klain's violation of the Court's order regarding the publication of partial recounts therefore, the counts should be stayed pending the resolution of that matter.
As for Gore's irreparable harm, I don;t see the Dec. 12 date as a drop dea. The State of Hawaii did not posit electors as late as December 28 in 1960 AND the "recount" could certainly be done by Dec. 18, the date the electors meet to vote. |
