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Scalia and Stevens clash over recount stay in Bush v. Gore
(CNN) -- By a narrow margin of 5-4, the justices of the U.S. Supreme Court halted the recount of Florida ballots ordered by the Florida Supreme Court and once again agreed to step into the Florida election dispute, setting oral arguments for Monday in the aptly-named case of George W. Bush v. Albert Gore.
At issue in the appeal is whether the Florida Supreme Court should have ordered a hand count of 9,000 disputed "undervote" ballots in Miami-Dade County, and ordered all counties with "undervotes" not previously manually counted, to count them by hand.
An "undervote" is a ballot on which no vote for president was detected by counting machines. In doing so, the Florida Supreme Court reversed a lower court ruling rejecting Gore's election contest appeal.
In issuing the stay, the U.S. Supreme Court split along familiar lines, with Chief Justice William Rehnquist and justices Clarence Thomas, Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy concurring and justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer dissenting.
In breaking with the majority, Justice Stevens wrote a forceful dissenting opinion in which he said, "Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." He continued, "(T)he Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted."
Stevens' dissent prompted Justice Scalia to take the unusual step of issuing a concurring opinion in connection with the stay in which he responded, "The counting of votes that are of questionable legality does, in my view, threaten irreparable harm to petitioner [George W. Bush] 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 that democratic stability requires."
In what may foreshadow the ultimate outcome of the case, Scalia also 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."
Bush v. Gore marks the second time the U.S. Supreme Court has agreed to review a case stemming from the Florida election dispute. On Monday, December 3, in Bush v. Palm Beach County Canvassing Board, the court vacated and remanded for further proceedings a Florida Supreme Court decision allowing manual vote recounts to proceed after a November 14 ballot-certification deadline set by that state's legislature.
In an unsigned, seven-page opinion, the U.S. Supreme Court sent the case back to Florida's seven justices so they could better explain the legal basis for their ruling extending the certification deadline to November 26.
The Florida Supreme Court had not revisited that case Friday when, in a 4-3 ruling, it reversed Leon County Circuit Judge N. Sanders Sauls who had rejected the vice president's contest of Florida's election results.
"Although in all elections, the Legislature and the courts have recognized that the voter's intent is paramount, in close elections, the necessity of counting all legal votes becomes critical," the majority wrote in its opinion.
In his dissent, Florida Supreme Court Chief Justice Charles Wells wrote, "The majority's decision to return this case to the circuit court ... has no foundation in the law of Florida," he wrote. "I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis."
Judicial process will be prolonged at least until Monday at 11 a.m. EST when the U.S. Supreme Court hears oral arguments in Bush v. Gore.
U.S. Constitution, Article II
Ballots where 'voter intent' is clear must be counted, Florida high court says
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