Bush V. Gore - Stay of The Florida Recount

Stay of The Florida Recount

By December 8, 2000, there had been multiple court decisions regarding the presidential election in Florida and on that date the Florida Supreme Court, by a 4-3 vote, ordered a statewide manual recount. On December 9, the U.S. Supreme Court voted 5 to 4 to stay the Florida recount, because according to Justice Scalia:

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. The issue is not, as the dissent puts it, whether "ounting every legally cast vote ca 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 vote." The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner 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 democratic stability requires.

The dissenters opined: "Counting every legally cast vote cannot constitute irreparable harm... Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." The four dissenting justices argued that stopping the recount was an "unwise" violation of "three venerable rules of judicial restraint", namely respecting the opinions of state supreme courts, cautiously exercising jurisdiction when "another branch of the Federal Government" has a large measure of responsibility to resolve the issue, and avoiding making peremptory conclusions on federal constitutional law prior to a full presentation on the issue.