Divided 5-4, U.S. Supreme Court Orders Halt to Florida Recounts
As deeply split as the nation itself, the U.S. Supreme Court abruptly halted Florida’s presidential recount Saturday and signaled its intention to finally resolve the nation’s prolonged election stalemate.
Minutes after a federal appeals court rejected a petition by Texas Gov. George W. Bush, the high court voted, 5 to 4, to stop the tabulations, which represented Vice President Al Gore’s best hope of erasing Bush’s tiny Florida lead.
The order came hours after dozens of counties began their hand tallying of about 43,000 ballots. The two sides bickered over how much ground the vice president gained before the counting ceased.
Writing for the high court, Justice Antonin Scalia said Bush stands a “substantial probability of success” in overturning Friday’s decision by the Florida Supreme Court, which ordered a recount of selected presidential ballots. Oral arguments were set for Monday.
“Count first and rule upon legality afterwards is not a recipe for producing election results that have the public acceptance stability requires,” Scalia wrote.
He appended his statement to the court’s paragraph-long order, an unusual response to a sharp dissent by Justice John Paul Stevens, who said the majority “acted unwisely” in cutting off the counting.
“Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election,” Stevens said.
Some Florida election officials were also discouraged by the decision. “As a supervisor of elections, I have a bias that all votes should be counted--and counted accurately,” said Leon County’s Ion Sancho.
With its sudden intervention, the Supreme Court produced yet another day of extraordinary mood swings and hair-trigger reversals of fortune. Republicans were exultant and Democrats outraged, exactly the opposite of their feelings the day before.
With their 5-4 vote, the justices also showed themselves just as closely divided as the American people, whose ballots split the U.S. Senate 50-50 and left the presidential election hanging, unresolved, more than a month after election day.
In the majority were Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Anthony M. Kennedy, Clarence Thomas and Scalia, the court’s most conservative justice. Joining the Stevens dissent were Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, who comprise the court’s moderate-to-liberal wing.
In Texas, at his hideaway ranch, Bush called the ruling “great news.” His chief Florida counsel, James A. Baker III, said the Bush team was “extremely gratified that the United States Supreme Court has . . . seen what we think are some very serious deficiencies in the way the process has been conducted.”
Gore stayed out of sight. His lead attorney in Tallahassee, David Boies, said that although he had not spoken with the vice president, “I’m sure he’s very disappointed.”
Boies asserted that if the counting continued, “it looks like Vice President Gore and Sen. [Joseph I.] Lieberman [of Connecticut] would win the popular vote in Florida, just like they won it outside of Florida.”
Gore won the popular vote nationwide by about 330,000 votes out of 104 million cast. But members of the electoral college choose the president, and the vice president is three votes shy of the 270 needed. Bush, with 246 electoral votes, can claim the White House if he wins Florida’s 25 make-or-break electoral votes.
Weighing on all parties is Tuesday’s constitutional deadline for seating electors. Members of the electoral college will then meet on Dec. 18. Unless the Supreme Court reverses itself and allows the counting to resume Monday, it is highly unlikely the task will be completed by Tuesday’s cutoff.
Like virtually everything else associated with the election, the results of Saturday’s partial tally were the subject of bitter dispute.
Ron Klain, a Gore advisor, said the campaign’s running count showed the vice president netting 58 votes from 13 counties that had partially finished or completed their canvass.
“Five of those counties were heavily Republican counties, so we believe that the progress made in the count thus far indicated that we were clearly on a path for Vice President Gore and Sen. Lieberman to make up the difference and to pull ahead,” Klain said.
But an unofficial Associated Press tally of partial recounts showed Gore netting just 16 votes statewide. Asked about other counties where some canvassing boards were reporting gains for Bush, Klain stuck to his number of 58.
The total would bring Bush’s lead down to either 96 or 135 votes out of about 6 million cast statewide, depending upon which results, if any, are certified from a contested hand count of Palm Beach County’s votes. After Klain spoke to reporters, Republicans immediately cried foul. They said the Gore team violated an order from Leon County Circuit Judge Terry P. Lewis not to release totals until after the deadline of 2 p.m. today that he had set for finishing the recount.
“We are very concerned about the violation of the court order here,” said GOP Gov. Marc Racicot of Montana. He said the Bush team had its own numbers, but he declined to release them. “We’re not going to try to do anything surreptitious that would violate the court’s order,” Racicot said.
Republican Gov. George Pataki of New York, who like Racicot was in Tallahassee to monitor the recounting, accused the Gore team of leaking its number “to help the vice president” and try to influence the U.S. Supreme Court.
The partisan rancor spilled over to Washington as well, where demonstrators marched outside Gore’s official residence, carrying signs saying, “It’s over stupid” and “Notice of eviction.”
On Capitol Hill, Republicans were pleased by the Supreme Court ruling, but low-key in their response. Democrats reacted with dazed disappointment.
“It’s not exactly a surprise,” said John Feehery, a spokesman for House Speaker J. Dennis Hastert (R-Ill.), who called the Florida recount order “a court case begging to be overturned.”
For their part, Democrats seemed resigned to an unfavorable Supreme Court decision and the end of Gore’s candidacy, although some suggested a swing vote on the court, such as O’Connor, might be persuaded to uphold the recount.
“This is the ultimate proof that every vote counts,” said Sen. Robert Torricelli (D-N.J.). “It appears that Sandra Day O’Connor is going to choose the next president of the United States.”
Before the court stepped in, election workers were surveying so-called undervotes, or ballots on which counting machines failed to register a presidential preference--either because of mechanical malfunction or because voters made no choice.
With each county following its own procedures, the recounting was rife with confusion. Puzzled and sometimes put-upon election officials faxed Judge Lewis, who was overseeing the recount, to seek guidance or vent their frustrations.
Perhaps the most critical work was conducted inside the Leon County Public Library, where eight judges counted Miami-Dade County ballots for five hours before the Supreme Court ordered a halt. They had finished nearly 4,000 of the 9,000 ballots when word of the decision arrived.
Although Gore hoped to reap some of his biggest gains in Democratic-leaning Miami-Dade County, most of the ballots had been set aside with no vote for either Gore or Bush, said Dave Lang, a Leon County court spokesman.
As the judges left the building, walked silently to their cars and drove away, several score of dejected Gore volunteers milled about the parking lot. Some two dozen raucous Bush supporters shouted and blew whistles.
Shouts of “President Bush!” and “Out the Door Gore!” replaced their earlier cries of “Kangaroo Court!” and “Stop Stealing the Votes!”
At the library loading dock, armed sheriff’s deputies tossed the sealed boxes of ballots into a high-security van normally used to transport prisoners. “They’re taking them back to put them in our vault,” Lang said.
The high court’s dramatic intercession capped yet another round of furious legal skirmishing that began soon after dawn Saturday in both state and federal courts.
Lawyers for Bush asked the Florida justices to stop the recount until they could get a determination from the U.S. Supreme Court on whether it should continue.
But the Gore team fired back, urging the state high court to allow the tallying to go on until the U.S. Supreme Court acted--which it did about seven hours into the count.
The state Supreme Court denied the Bush effort to stop the recounts in a 4-3 decision that split along the same lines as Friday’s ruling.
The Bush team also sought to stop, or at least slow down, the recounting by filing legal motions in Leon County Circuit Court as well, asking Lewis to stop the recounting that started at 8 a.m.
The Bush team called the state Supreme Court’s decision “a naked usurpation of legislative authority.” Their request for an “emergency hearing” became moot once the high court in Washington gave them what they wanted.
Just before the high court ruled, the U.S. 11th Circuit Court of Appeals in Atlanta turned down a request by Bush lawyers for a halt to the recounts. However, the panel ruled that any new tally could not be certified as Florida’s final result until the U.S. Supreme Court gave its permission.
The state has the most liberal public records laws in the nation and a bevy of news organizations and other individuals already have filed formal requests seeking to examine Florida’s contested presidential ballots.
On Saturday, however, Rep. Jennifer Dunn (R-Wash.), a Bush backer, said on CNN that this would never happen. She predicted that after the court proceedings are over, “the ballots will be sealed.”
If that occurred, it would eliminate any chance of a recount showing that Gore had in fact won the state’s popular vote.
Times staff writers Michael Finnegan in Tallahassee and Janet Hook in Washington contributed to this story.
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What Lies Ahead
Entering its sixth week of uncertainty, the presidential election takes a new turn almost daily. But here’s what appears to be upcoming.
Monday, Dec. 11: The U.S. Supreme Court hears George W. Bushs petition to stop further hand counts in Florida, and Floridas Republican-controlled Legislature reconvenes in a special session to appoint electors loyal to Bush.
Tuesday, Dec. 12: Analysts debate whether this date is the deadline, or a guideline, for states to name their electors to the electoral college if they want to shield them from subsequent challenges. After this date, Congress may not be obligated to accept a states electors.
After Florida certified Bush as the state’s winner, Florida Gov. Jeb Bush, the candidates younger brother, reported a slate of Republican electors to the National Archives and Records Administration on Nov. 26. But just in case that slate is not seated, because of ongoing legal challenges, Florida’s House is expected to approve legislation Tuesday granting the states 25 electoral votes to Bush.
Wednesday, Dec. 13: Florida’s Senate is expected to pass similar legislation appointing electors for Bush.
Dec. 18: Electors from every state meet in their respective capitals to cast their votes for president and vice president. To win, candidates need at least 270 of the 538 possible votes. Some analysts say states need not name their electors until this date.
Jan. 6: Congress is scheduled to meet in a joint session to officially tally the results of the electoral college vote. If the tally produces no clear presidential winner, the House convenes soon after and votes, one vote per state, for president. An unsettled vice presidential contest would be decided by the Senate.
Jan. 20: The new president and vice president are inaugurated.
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