St. Petersburg Times Online: Election 2000
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U.S. Supreme Court
Souter Stevens
Majority opinion Dissenting opinion
“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."
– Justice Antonin Scalia
"...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."
– Justice John Paul Stevens


U.S. Supreme Court orders counting stopped


© St. Petersburg Times, published December 10, 2000

TALLAHASSEE -- One divided court trumped another Saturday.

A day after the Florida Supreme Court ordered a recount of thousands of presidential ballots, the U.S. Supreme Court brought those frantic efforts to a screeching halt.

Text of the ruling
In a 5-4 ruling, the nation's highest court granted George W. Bush's request to immediately stop the recounts that had been ordered by the similarly split state court. Lawyers for Bush and Al Gore will file briefs with the U.S. Supreme Court this afternoon, and oral arguments are set for Monday.

"It's one day you're up, one day you're down," said former Secretary of State James Baker, who is monitoring the Florida election turmoil for Bush.

The lightning strike by the court leaves elections officials across Florida in limbo, uncertain when or if the recounts will resume.

In Tallahassee, where eight judges were less than halfway through a recount of 9,000 votes from Miami-Dade County, the ballots were quickly placed in two cardboard boxes and resealed with red tape. Seven sheriff's deputies took them away to a vault, where they will remain under armed guard.

Saturday's developments also may harden the resolve of the Republican-led Florida Legislature to appoint new electors for Bush in a special session this week as an insurance policy against the swirling legal battles.

Only a prompt U.S. Supreme Court opinion that permanently stopped the recounts and effectively declared Bush the winner would reassure Republican lawmakers that legislative action isn't needed to protect Florida's 25 votes in the Electoral College.

The federal deadline for states to appoint electors is Tuesday, and the Electoral College meets in the 50 state capitals on Dec. 18. While Gore leads in the national popular vote, the winner of Florida's electoral votes will win the presidency.

Saturday began with Gore supporters excited about the prospects that the vice president could overcome Bush's tiny lead with the recounts. It ended with the Texas governor's supporters back on top of the emotional roller coaster after the U.S. Supreme Court's order.

Baker called the ruling "very, very gratifying to us." Ron Klain, Gore's senior campaign attorney, called it disappointing and predicted the court will allow the recounts to continue.

"We were clearly on a path for Vice President Gore and Sen. Lieberman to make up the difference and pull ahead," said Klain, estimating that Gore had gained 58 net votes from 13 counties that were finished or nearly finished with their recounts.

Gore began the day just 154 votes behind Bush out of nearly 6-million cast. Florida's certified vote totals give Bush a 537-vote lead, but the Florida Supreme Court awarded Gore previously counted votes in Miami-Dade and Palm Beach counties.

Whether any of those vote totals matter will be determined by the U.S. Supreme Court, which was divided along ideological lines on whether to hear Bush's appeal.

The 5-4 order was accompanied by unusual opposing opinions by Justice John Paul Stevens and Justice Antonin Scalia.

In a sharply worded dissent, Stevens complained that the majority acted "unwisely" and was interfering with Florida's state courts and laws.

"As a more fundamental matter," he wrote, "the Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted."

Stevens said Gore could be irreparably harmed by delaying the recounts but that Bush would not suffer similar damage if they continued.

"Counting every legally cast vote cannot constitute irreparable harm," the justice wrote. "Preventing the recount will inevitably cast a cloud on the legitimacy of the election."

That prompted Scalia, one of the court's most conservative justices, to respond in support of suspending the recounts. He wrote that Bush would be harmed by a recount of questionable votes 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 wrote.

He pointedly noted that the court's order to delay the recounts and hear Bush's appeal means the majority believes Bush has a "substantial probability of success" in winning his argument and the presidency.

Joining Scalia in the majority were Chief Justice William Rehnquist and Justices Anthony Kennedy, Clarence Thomas and Sandra Day O'Connor.

Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter joined Stevens in dissent.

When the order was released about 2:40 p.m., it froze elections officials across Florida in mid count.

In Tallahassee, Bush supporters began cheering "President Bush!" at the public library where the Miami-Dade ballots were being recounted. A Bush attorney stormed into the library and proclaimed: "I'm with the Bush-Cheney team. I'm here to stop the vote."

Lawyers for both candidates got precious little sleep Friday night as Bush's team papered courts from Tallahassee to Washington with appeals to stop the counting, and the Gore side responded.

By Saturday morning, dozens of Democrats on charter planes from Washington landed in Tallahassee, Orlando and Jacksonville, fanning across the state in rental cars to serve as observers in the recount.

Republicans brought in out-of-state forces as well. Bush campaign chairman Don Evans and strategist Karl Rove flew to Tallahassee after Baker called for help.

Before many Americans finished their first cup of coffee Saturday morning, objections or appeals were being considered by Leon Circuit Judge Terry Lewis, the Florida Supreme Court, the 11th U.S. Circuit Court of Appeals in Atlanta and the U.S. Supreme Court in Washington.

The first rejection came before noon and was not a surprise. By the same 4-3 split in Friday's landmark opinion ordering the recounts, the state Supreme Court refused a Bush request to put the recounts on hold until the U.S. Supreme Court acted.

Lewis, the trial judge overseeing the recounts, ignored Bush's objections that his Friday night order outlining plans for the recount "makes an impossible situation even worse." The Republican's lawyers complained that the Leon Circuit Court judge had violated Bush's due process protections, failed to set any standards for reviewing the ballots and left the job in the hands of untrained and possibly biased counters.

The objections also renewed Bush's charges that the Miami-Dade ballots have been handled so many times they aren't worth reviewing.

"The evidence is not sufficiently trustworthy for any election, and certainly not for the election of the president of the United States," Bush's lawyers argued.

But by 9 a.m., the Miami-Dade ballots were being counted at the library in downtown Tallahassee. Other counties also were gearing up to manually recount more than 40,000 ballots that had not registered a vote for president when they were mechanically counted.

Lewis assumed the unenviable task of overseeing the recount by default. Leon Circuit Judge N. Sanders Sauls, who rejected Gore's challenge and was overruled by the state Supreme Court, recused himself. Under a rotation system, it was Judge Nikki Clark's turn to take the job, but she declined.

So the soft-spoken judge who already has presided over two high-profile lawsuits involving the presidential election found himself back in the spotlight. He held a hearing late Friday night to lay out his ground rules, which included a deadline of 2 p.m. today for finishing a job that now is on hold.

Gore, who had been prepared to concede Friday night if the Florida Supreme Court had not granted the recounts, was upbeat in a conference call with supporters.

"Years from now," he told them, "we'll be telling our grandchildren about this. You all will be able to take pride in the fact that, despite great pressure, you fought valiantly for our democratic values."

Shortly after 2:30 p.m., the 11th U.S. Circuit Court of Appeals in Atlanta raised the first red flag. The appeals court said the recounts could continue, but it prevented the state from certifying the results until the U.S. Supreme Court decided whether to hear Bush's appeal.

Less than five minutes later, the nation's highest court weighed in and put the race for president on hold 32 days after the election.

-- Information from the Associated Press was included in this report.

Federal judge rejects overseas ballot challenge

TALLAHASSEE -- A federal judge Saturday refused to throw out about 2,400 overseas ballots, most of them cast by military personnel, that were received up to 10 days after the Nov. 7 election.

The decision was immediately appealed to the 11th U.S. Circuit Court of Appeals in Atlanta, said Roger Bernstein, a lawyer representing six of 13 individual Democratic voters who brought the suit.

Republican George W. Bush received 1,575 votes among the contested ballots, compared with 836 for Democrat Al Gore. The difference is more than enough to change the outcome of the election if the ballots are thrown out.

- Associated Press

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