U.S. Supreme Court stops recounts

Divided justices favor Bush's request, and "chaos" in Florida grinds to a halt.

By Salon Staff

Published December 9, 2000 7:24PM (EST)

The U.S. Supreme Court granted Gov. George W. Bush a stay, saying the manual counting of Florida ballots should end, for now, capping a wild 24 hours of head-spinning legal decisions and apparently halting the renewed momentum of Vice President Al Gore's campaign. The court announced that it will hear oral arguments Monday.

The Supreme Court ruled 5-4 to grant the stay, and in the opinions attached to the court's order, there was a hint of the justices' division on how -- and whether -- the contested "undervotes" should be considered. It is in these ballots now where Gore's last chance seems to rest.

In a dissenting opinion, Justice John Paul Stevens (joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer) wrote: "The Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted." Furthermore, Stevens wrote: "Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."

In a concurring opinion, Justice Antonin Scalia (who was joined in the majority opinion by Justices Sandra Day O'Connor, William Rehnquist, Clarence Thomas and Anthony Kennedy), wrote: "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." Scalia continued, in reference to the "undervotes": 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."

The response from both campaigns was swift. On behalf of Bush, ex-Secretary of State James Baker showed surprising restraint in characterizing the decision: "I don't really want to put an interpretation on the brief statement granting the stay or the dissent," Baker said. "We will make our case Monday before the full court, which I think would be the appropriate thing to do."

He did take a jab at Gore, however, saying that it was sad that the election could ultimately be decided by the courts. Of course, it was the Bush campaign that first sought relief in the Florida courts in November to stop the manual recounts.

The Gore campaign, meanwhile, has already begun using the early results of the recount mandated by the Florida Supreme Court as evidence that Gore actually won Florida. Campaign spokesman Ron Klain, who started by bypassing the Supreme Court's action altogether, announced that "as far as they got before [the counties] stopped, we got a net of 58 votes in the 13 counties" that completed their recounts of "undervotes." "We felt very good about the progress of the counts," Klain added.

Gore's lead attorney, David Boies, echoed Klain's positive spin -- albeit with qualifier piled on top of qualifier. "If this count continues to go forward," Boies said, "it looks like, right now, although nobody can be absolutely certain, that Vice President Gore and Senator Lieberman would win the popular vote in Florida, just as they won the popular vote outside of Florida."

Boies characterized the U.S. Supreme Court's ruling as a conservative move to ensure that if Gore ended up winning Florida after the manual recount, the court would not then have to somehow rule that the victory did not count.

The ruling was announced shortly after the 11th Circuit Court of Appeals had denied the Bush request for a halt of the recount in Florida, where election supervisors were scrambling Saturday to follow the Florida Supreme Court's Friday ruling.

The Friday ruling had startled political observers -- and the American public -- by resurrecting Gore's chances after many had finally written him off.

It ordered a statewide hand recount of "undervotes" -- ballots on which no vote for president was picked up by machines during the mechanical vote -- which was to begin at 8 a.m. Saturday and in some counties did. But many counties were caught completely off-guard by the Florida Supreme Court ruling, flailing live on cable news networks as they tried to figure out how to count recorded "undervotes."

Many counties had not separated the undervotes from other votes during the first count -- or subsequent recounts. Duval County officials looked like they'd been caught settling into long winter's naps. (Don't they have cable in Duval County?) They announced that they would need to refeed all the county's nearly 300,000 ballots into counting machines to pull out the approximately 5,000 undervotes recorded there. The process could take an additional 12 hours, they said.

Meanwhile, as pundits and historians explained the mind-boggling scenarios to come -- which include Gore casting a tie-breaking vote for himself in the Senate, sending a final decision back to his opponent's brother, Florida Gov. Jeb Bush -- the spinners were out in full force.

Gore supporters followed a predictable line: The Florida Supreme Court justly ruled that every vote must count. Bush supporters said that the Florida Supreme Court had plunged us into "chaos."

Typical of the Gore side were the comments of spokesman Doug Hattaway, who assured CNN that "the fundamental principle at stake here is that every vote must count." Then Sen. Barbara Boxer, D-Calif., speaking on the steps of the Florida Capitol -- and near the howls of angry pro-Bush protesters -- said, "All we have wanted, those of us who support Al Gore, is a fair count of the votes ... and finally, yesterday, we had a decision that recognizes that there were many votes that have not been counted ever, not even once."

The Bush campaign, meanwhile, took its lead from the dissenting opinions on the Florida court, especially the one by Justice Major Harding, who wrote that the decision of the majority "is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos."

On Saturday, "chaos" reigned.

"It calls out for the U.S. Supreme Court to step into this chaotic situation and recognize that this is a violation of equal protection and other constitutional provisions," New York Gov. George Pataki, who flew to Florida to "observe" and spin, told CNN. "At this point to throw open tens of thousands of ballots to an arbitrary process is certainly not just chaotic but completely wrong."

Then, moments later on MSNBC, he characterized the process as "what I believe is a chaotic situation that is really inappropriate." He continued: "This is the type of chaotic situation, and you had Chief Justice Wells in his dissent talk about the chaos and the four justices [who] ignored the Florida laws that existed on Nov. 7; I think that's the type of situation that calls on the U.S. Supreme Court to act."

He was promptly followed by Jack Kemp, the former Republican vice presidential candidate, who complained to reporters that the court had "thrown the state of Florida into chaos." Then, on Fox News, former Florida Republican chairman Van Poole described the counts as "pure chaos."

Salon Staff

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