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 petition
for a writ of certiorari is granted...
 

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 “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 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.

STEVENS, J., dissenting
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]

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 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.”   National Socialist Party of America v.
Skokie, 434 U. S. 1327, 1328 (1977)

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. See, e.g., Fla. Stat. §§ 101.5614(5),
102.166 (2000). 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.” 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 correctly
ascertaining the will of the voters as paramount.

... 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.