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Despite 5-4 Supreme Court Vote On Stay, Outcome Uncertain In Bush V. Gore
Dana Chasin

This week, the American experiment called democracy will be put to the test as never before, when the U.S. Supreme Court hears and decides the case of George W. Bush v. Albert Gore, Jr., No. 00-949. Last Friday, the Florida Supreme Court ordered an immediate statewide hand recount of 45,000 "under-votes" -- ballots that did not register votes in the two machine counts following the November 7 Presidential election. The U.S. Supreme Court voted 5-4 to "stay," or halt this hand recount about seven hours after it began on Saturday morning and set oral argument in Bush v. Gore for 11 a.m. this morning.

The five justices who voted to grant the stay were Chief Justice William Rehnquist and Justices O'Connor, Kennedy, Thomas, and Scalia. Justice Scalia offered a one-man written "concurrence" purporting to foreshadow the Court's ultimate disposition of Bush v. Gore. Justice John Paul Stevens wrote a dissent on behalf of himself and Justices Ginsburg, Souter, and Breyer.

Never before in American history has the Supreme Court halted a vote count of Presidential ballots with the election outcome in the balance. The Court's ruling sets up a collision between the Federal and the Florida judiciary. Since Federal law requires states to appoint their slates of Presidential electors by tomorrow, Tuesday, if these slates are to be challenge-proof in Congress, the ruling fairly begs the Florida legislature to appoint electors before Bush v. Gore -- the case, not the election - is decided. So it also pits the GOP-dominated Florida legislature, which is poised to appoint a Bush slate of electors, against the state's judiciary, which ordered and began the immediate hand recount in part to beat tomorrow's deadline.

Under these circumstances, calling a halt to the effort to get every Presidential vote counted in Florida deserves an explanation. And to his credit, Scalia tried. But, to use an unflattering but fitting analogy, we listen to Scalia's explanation the way a parent might to a child's justification for its outrageous behavior: "OK, but this had better be good." It isn't. As Justice Stevens wrote in an unusually blistering dissent, "the majority has acted unwisely."

Scalia opens with an attempt to pre-empt or at least prejudge the outcome of Bush v. Gore. The grant of stay, he wrote, "suggests that a majority of the Court believes that [Bush] has a substantial probability of success" in getting five Justices to agree to shut the vote counting process down for good. Scalia may turn out to be right in the end, but he appears to reject the possibility a Court majority may yet listen to the oral argument, consider it, deliberate about it in good faith and fair-mindedly -- and permit the vote count to resume.

This awkward effort to bind his brethren in writing to their preliminary positions in the case does not prepare us for Scalia's liberties with facts and logic that follow.

The key ingredient for a stay application in Federal court is a showing by the applicant that "irreparable harm" will result if the stay is not granted. Scalia asserts that the counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush] and to the country, by casting a cloud upon what he claims to be the legitimacy of his election [emphasis added].

In other words, permitting the count would cast a cloud upon Bush's own presumptive (or delusional), claim that he has already been elected! The irreparable harm appears to be to Bush's own frail constitution (as opposed to the sturdier one that defines our system of government) or perhaps only to Bush's fragile fantasy.

Scalia might have a point if his concern that the votes to be counted may be of "questionable legality" were not grounded in his view that "letting the standard for determination of voters' intent … vary from county to county" is constitutionally questionable.

Not only did the Florida counties use different methods of voting, from punch card to SAT-style "optiscan", but the ballot design varied around the state, from the standard single-column ballot to the notorious butterfly. Ballots and voting methods vary from county to county in Florida, as in most states, and have done so forever, never before raising any constitutional question. Since the ballots and voting methods vary, the standard for determination of voters' intent must also necessarily vary from county to county.

Perhaps Scalia was not actually writing for the majority in his "concurrence" as much as he was indulging in jurisprudential free-lancing. But let us be charitable to him and to the Court majority and assume that it voted for the stay because it wanted to hear from the parties themselves in Bush v. Gore before ruling the hand recount unlawful and stopping it for good.

The justices supporting a resumption of the vote count have a strong and arguably righteous claim. Justice Stevens points out that there is a countervailing, if not overriding, irreparable harm threatened: "Counting every legally cast vote cannot constitute irreparable harm" while halting the vote may inflict harm on Gore as well as "the public at large" because, given the December 12 deadline mentioned above, "a stay may be tantamount to a decision on the merits in favor of [Bush]. Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."

Can this cloud be dispelled and the election's legitimacy salvaged? It can, if the parties and institutions involved -- the courts, legislatures, candidates and their campaigns -- bear three facts in mind when acting and commenting on the matter of Bush v. Gore.

First, there is no certainty about the outcome of the hand recounts. Saturday's abortive recounts yielded some confounding preliminary, unofficial results - gains for Gore in some conservative rural counties; gains for Bush in Miami-Dade (perhaps because the Cuban-American community vote was finally being recounted).

Second, the December 12 deadline is not the last opportunity for Florida to appoint electors and be represented in the electoral college vote on December 18; slates appointed after Tuesday are legal, though technically subject to challenge by Congress. In the face of a slate appointment based on a tallying upon the completion of the hand count, Congress may accord deference to Florida's result and not challenge the slate, whether for Bush or Gore. While democracy delayed is democracy denied, in practical terms, one less week of transition is a small price to pay to count the vote and determine and give effect to the intent and will of the voters.

Third, given Florida's sunshine laws, the day will most assuredly come -- maybe before the inauguration of our next President, but quite possibly not - when all of Florida's ballots are counted and the tally reported in ever paper in the country. The only way to ensure that the man inaugurated on January 20, 2001 is the actual winner of the election is for all the legal votes to be counted as soon as possible.

The Supreme Court of the United States, bearing these facts in mind, may yet part company with Scalia's logic, reconstitute a majority around Stevens' position, and allow the recount to continue and the legitimate winner of the Presidential election to prevail. Crazier things have happened.

DANA CHASIN is President of the Empire State Democratic Initiative (ESDI), a statewide membership organization providing opportunities to younger citizens of New York State to participate in the political process.