U.S. Supreme Court Stops Florida Vote Recount
By TERENCE HUNT
.c The Associated Press
WASHINGTON (Dec. 9) - In a 5-4 decision, the U.S. Supreme Court ordered a temporary halt Saturday in the Florida vote count on which Al Gore pinned his best hopes of winning the White House. Justice Antonin Scalia said George W. Bush stands a ''substantial probability of success'' in a case that could settle the presidency.
The court's split was the most dramatic split in a long season of political division.
Bush heard of the development in a telephone call to his Texas ranch and was ''very pleased,'' an aide said.
Gore's top attorney, David Boies, expressed the campaign's disappointment. He speculated that if the vote were to go forward ''it looks like Vice President Gore and Senator (Joseph) Lieberman would win the popular vote in Florida just like they won it outside of Florida.''
Gore was awarded a weekend recount Friday by the Florida Supreme Court, prompting a flood of Republican lawyers to press an appeal. They were unsuccessful at the state level and federal appellate levels before the U.S. Supreme Court intervened.
Gore had looked to the weekend count to reverse Bush's certified victory in Florida. The state's 25 electoral votes will determine the 43rd president and end the deadlock stemming from the Nov. 7 election.
The court's decision froze the examination of thousands of ballots in dozens of Florida counties just hours after it had started. Most counties had not publicly released fresh vote totals and by midday Gore had picked up four votes, reducing Bush's lead to 189 according to an unofficial Associated Press count.
The high court ordered both sides to present oral arguments Monday on the underlying legal issues in recounting disputed ballots. Bush's top attorney, James A. Baker III noted that the court hadn't ruled on any of these issues in halting the vote, but there was language from one of the court's most conservative justices regarding the eventual result.
''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,'' wrote Justice Scalia in an unusual accompanying statement. The majority order itself was contained in one brief paragraph.
The five votes to halt Florida's weekend vote came from Chief Justice William Rehnquist and Justices Anthony Kennedy, Clarence Thomas, Sandra Day O'Connor and Scalia. Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter dissented.
Stevens, writing for the minority, said, ''To stop the counting of legal votes, the majority today departs from'' the rules of judicial restraint.
Saturday's decision was the latest turn in an election marathon of uncertainty and suspense.
Baker said Bush has been through an ordeal. ''One day you're up. One day you're down,'' he said. ''It's taken a lot of twists and turns.''
Across Florida, election activity came to a halt.
''No need for us to go any further,'' said Pam Iorio, supervisor of elections in Hillsborough County, one of dozens of counties involved in the recount effort.
''This is surreal,'' said Republican attorney Jim Post in Duval County, where officials had been deliberating how to proceed. ''This has been quite a roller coaster ride and I don't think it's over yet.''
Republican demonstrators, outside the vice president's mansion, chanted, ''Get out of Cheney's house'' and carried signs reading, ''Notice of eviction'' and ''It's over stupid.''
Gore attorney Ron Klain said the vice president was pleased with the recounts that were done and said they put the vice president on a path ''to make up the difference and to pull ahead.'' Spokesman Chris Lehane said the vice president looked forward to Monday's hearing ''because we are confident that our argument is based on the fundamental principle of one person, one vote.''
Before the court's intervention, a still ebullient Gore held a conference call with supporters. ''Years from now, we'll be telling our grandchildren about this,'' the vice president said. ''You all will be able to take pride in the fact that, despite great pressure, you fought valiantly for our democratic values.''
Returning to the confusion of dimpled, swinging and hanging chads, election officials had been examining thousands of ballots where counting machines failed to register a vote for president. They operated under the watchful eye of Republican and Democratic observers and under a gag order imposed by the state judge who imposed a deadline of 2 p.m. Sunday.
Bush attorneys implored the courts to stop the process, arguing that the month-old ballots had ''degraded'' to the point of being untrustworthy. Gore lawyers said the ''will of the voters'' must be heard. The vice president holds a small but distinct lead in the nationwide popular vote and Democrats believe he will overtake Bush in Florida if the recount is completed.
Gore has a slight lead in the electoral college but stalled short of the 270 vote majority. Bush will win the presidency if he holds the Florida's 25 electoral votes, awarded to him two weeks ago when the secretary of state certified a state count. That prompted Gore's successful challenge Friday before the divided state Supreme Court.
In Tallahassee, Florida's Supreme Court held its ground Saturday, refusing Bush's appeal to stop the count. That decision was negated by the Supreme Court ruling in Washington. The state court had split 4-3 Friday in ordering a new look at about 45,000 so-called undervotes.
Bush also took his case to a federal appeals court in Atlanta, which also refused a stay.
Bush running mate Dick Cheney took his wife Lynne to lunch and a movie, ''Proof of Life,'' and got word that the Supreme Court had acted when aides' cellphones started going off in the theater.
Thirty-two days after the election, there was plenty of uncertainty in a race that had seemed likely to end Friday with a Bush victory. The court-ordered count resurrected Gore's hopes and threw the race into uncharted political and legal territory that could make Congress the final arbiter of who will be the nation's 43rd president.
Democrats and Republicans flooded into Florida to monitor the count and jockey for television time. Bush sent campaign chairman Don Evans and chief strategist Karl Rove to Tallahassee. President Clinton, at the White House, applauded the Florida Supreme Court's ruling.
''The more people feel there was an accurate count, the more legitimacy will be conferred on whoever the eventual winner is,'' he said.
New York Gov. George Pataki, a Republican, said that reexamining tens of thousands of votes ''is certainly not just chaotic but completely wrong and it cries out for someone - and it has to be the federal courts - to say this is not right.''
Gore campaign manager Donna Brazile said Republicans were trying to ''incite chaos ... even before they get back to the counting.''
Gore spoke to three-dozen Democratic contributors and supporters and, according to an aide, he said, ''a vote is not just a piece of paper, a punched card or a chad. It is a human voice and we must not let those voices be silenced - not for today, not for tomorrow, not for as long as this country stands for the principle that the people must be heard and heeded.''
Implementing the Florida Supreme Court's order, Leon County Circuit Judge Terry Lewis had set a 2 p.m. Sunday deadline for completing the recount. that would have given the court time to certify Florida's electors by Tuesday, the deadline for states to name the electoral slates.
However, the Republican-controlled Florida Legislature also is prepared to vote by midweek on its own slate of electors, loyal to Bush. If Gore prevails in the state count, there could be two slates of electors, creating a constitutional clash where Congress - deeply divided itself - would be forced to pick.
At the start of the day, Bush led Gore by 193 votes statewide out of 6 million ballots cast.
There were 9,000 undervotes in Democratic-leaning Miami-Dade, offering Gore his best chance to leapfrog ahead. The Republicans said the only way to avoid double counting of votes in Miami-Dade would be to conduct a full manual recount of all 600,000 ballots there.
In Duval County, where nearly 5,000 ballots were to be counted, officials awaited a shipment of computer hardware and software to help them sort through roughly 265,000 votes and find the ones needed to be recounted.
In Washington, Bush and Gore flooded the Supreme Court with motions. Bush's lawyers filed an appeal Friday to stop the count, and Gore's attorneys responded Saturday morning. Bush lawyers returned to the court to answer Gore's team.
''If this confusing, inconsistent and largely standardless process is not stayed pending this court's review, the integrity of this presidential election could be seriously undermined,'' Bush argued.
''Whatever tabulations result from his process will be incurable in the public consciousness and, once announced, cannot be retracted,'' no matter how flawed, Bush lawyers said.
In reply, Gore's lawyers said, ''Their surprising assertion is that a candidate for public office can be irreparably harmed by the process of discerning and tabulating the will of the voters.''
While most of the Florida counties with questionable ballots supported Bush, analysts in both camps said Gore stands to gain from scattered recounts. That's because Democratic voters tend to live in areas using antiquated voting machines that misread the most ballots.
Bush Ahead in Miami
Saturday, Dec. 9, 2000 4:24 p.m.
Barry Jackson, an aide to Rep. John Boehner and a Republican observer of the Miami-Dade recount, told Fox News this afternoon that Bush had a net gain of 42 votes after approximately half the 9,000 contested ballots had been counted.
According to Jackson, Bush gained 92 votes, Gore 50.
Supreme Court Orders StopTo Florida Recounts
Saturday, December 9, 2000
In a crushing blow to Democrat Al Gore, the U.S. Supreme Court granted on Saturday a request from GOP opponent George W. Bush to halt the manual recounts of votes that were underway in 64 Florida counties until the high court hears arguments Monday on the constitutionality of the process.
Saturday: Hillsborough County elections workers in Tampa, Fla., break the seal on ballots just before the U.S. Supreme Court halted the manual recount.
The court indicated Bush's chances for winning that battle are good.
"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," Justice Antonin Scalia wrote in the brief majority decision.
James A. Baker III, Bush's campaign advisor, expressed happiness with the announcement and pointed to the division over the recount decision even among the state Supreme Court justices.
"We're very pleased that we will have the opportunity to argue the merits of our case before the United States Supreme Court," Baker said. "As the three dissenting justices of the Florida Supreme Court emphasized, their four colleagues risked violating federal law and the United States Constitution by developing an alternative and flawed recount system."
Gore lawyers Ron Klain and David Boies also made comments during a subsequent press conference, expressing their disappointment in the high court's ruling but remaining optimistic and confident they'll prevail Monday.
Boies, who at one point made a verbal slip and referred to the Texas governor as "President Bush," speculated about how Gore took the news and emphasized the importance of allowing Florida state law to ultimately decide the election.
"I am sure that the vice president of the United States is very disappointed that the vote count has been interrupted," Boies said. "This is a matter of state law. State law is deserving of deference. The United States Supreme Court ought not to step in to change that ... and tell a state court, 'You've got to change the rules of the game.'"
Despite ruling just one week ago that these election matters should be left to the Florida Supreme Court and were not for federal scrutiny, the land's highest court changed course in deciding that the hotly disputed counts should stop for now.
The standard for granting such a stay was high, as justices had to determine the recounts were causing "irreparable harm." In the deeply divided ruling, handed down just before 3 p.m. ET, five of the nine justices did find that standard had been met and said the process was irreparably hurting Bush's certified win in the state. The other four dissented vehemently.
"To stop the counting of legal votes, the majority today departs from" the rules of judicial restraint, Justice John Paul Stevens wrote on behalf of the dissenters.
The ruling came as local election boards in scattered locations in Florida toiled to honor a state Supreme Court order for a manual recount of an estimated 45,000 ballots.
Joining Scalia, Chief Justice William Rehnquist and Justices Anthony Kennedy, Clarence Thomas and Sandra Day O'Connor voted to halt the counts. In addition to Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter dissented.
The majority's order was contained in one brief paragraph.
Lawyers for Bush and Gore were commanded to appear for oral arguments on Monday morning the day before the informal deadline for appointment of the state's 25 electoral votes.
The high court issued its edict a few moments after the U.S. 11th Circuit Court of Appeals in Atlanta denied Bush's emergency motion to stop the recount but ordered Florida officials not to change previously certified results declaring him the winner by 537 votes. Bush had also pressed the Florida Supreme Court to stop the recount, but they also refused.
About 50 Bush supporters outside the Leon County library shouted, "Give it up Gore" and sang, "Nah, nah, nah, nah, hey, hey, hey, goodbye" when they learned of the Supreme Court decision. In Orange County, the canvassing board ordered workers to quit counting but advised they should sit tight until further word.
Recounts Are Stopped in Their Tracks
Up until the ruling was handed down, Florida election officials in 64 counties had been doggedly working through what promised for many to be another round-the-clock weekend Saturday, recounting 45,000 contested presidential votes after the state's highest court ordered the process to resume immediately.
While protesters on both sides chanted outside their offices, local canvassing boards in 64 of the state's 67 counties threw open ballot boxes at 8 a.m. Saturday and tackled the arduous task of inspecting cards whose votes didn't register on the machines, or "undervotes." Gore has challenged the exclusion of such votes in the disputed presidential election, which still hasn't yielded a clear successor to Bill Clinton.
The Florida Supreme Court order required the examination of as many as 45,000 of the so-called undervotes in all but Palm Beach, Broward and Volusia counties, where those ballots that didn't register a choice have already been examined. Early Saturday afternoon, Bush led Gore by less than 200 votes statewide out of six million ballots cast, and that lead was slowly dwindling.
Thousands of votes cast in those regions might not have been registered by machines becoming undervotes because the holes weren't completely punctured. At issue have been widely reported problems with the punchcard ballots used in some Florida counties, because a voter can punch the card but fail to push the little cardboard "chad" all the way out.
The judge charged with overseeing the new recounts had set a deadline of 2 p.m. Sunday to wrap up the work across the state.
Bush, certified last weekend as the winner of the crucial state of Florida, scurried to Washington Friday to try to get the recounts stopped by the Supreme Court. Gore followed suit Saturday, asking the high court to allow the recounts to go forward. But the Court sided with Bush.
The Gore team argued interference by the high court could hurt the electoral process and said it's surprising Bush claims he might suffer if the counts go forward.
The Bush camp contended the state Supreme Court ruling mandating the recounts is unconstitutional and if it stands, the American election system could suffer "material harm."
"This is what happens when, for the first time in modern history, a candidate resorts to lawsuits to try to overcome the outcome of an election for president," said former Secretary of State James A. Baker III, the head of Bush's legal team. "It is very sad. It is sad for Florida. It is sad for the nation. And it is sad for democracy."
The latest, surprising turn of events caps the fifth topsy-turvy week in the Election 2000 saga.
Friday's Florida Supreme Court decision overturned a Wednesday ruling by Circuit Judge N. Sanders Sauls, who immediately recused himself from the case without explanation. The case was reassigned to Judge Terry Lewis, who told lawyers for the two campaigns in Tallahassee that he had read the state court's ruling "and I intend to follow it."
Because the presidential race was so close, Florida's 25 electoral votes are crucial to either candidate's chance of victory. Florida is required to certify its slate of electors Tuesday, and the Republican-controlled Legislature is poised to ensure that those electors are pledged to Bush when lawmakers meet in special session next week.
Congress might ultimately be forced to decide whether to accept votes chosen through the court battle in Gore's favor, or a slate picked by the Legislature for Bush.
The Electoral College compiles the votes of all 50 states on Dec. 18 and those votes are to be counted by Congress on Jan. 6, two weeks before Inauguration Day.
The Associated Press contributed to this report
A nation polarized
Dec. 6, 2000 / 10 Kislev, 5761
http://www.jewishworldreview.com -- WE'VE HAD close presidential elections before, but this one is emblematic of dangerous, unbridgeable and growing gaps among the American people. Some of this can be seen by examining a map showing U.S. counties won by George Bush and those won by Al Gore.
In general, the densely populated counties along the East and West coasts, Midwestern counties mostly along the Mississippi River and a smattering of counties in the southwest were won by Gore. But if the election were to be decided by who won the greatest number of the nation's 3,142 counties, Bush would have bested Gore by at least 2,500 counties.
While who won how many counties is irrelevant to the presidential selection process, it says something about the degree of national polarization. What are the characteristics of counties won by Bush versus those won by Gore? The values, politics and religion of the counties in the southern, western and rural sections of the country, won by Bush are not like those in the mostly coastal, highly populated counties won by Gore. The Bush counties are: more conservative and respectful of traditional values, pro-life, and more religious, and they have less social pathology such as high crime, illegitimacy and deviancy. Counties won by Gore tend to be just the opposite.
By no means do Americans who voted for Bush enthusiastically and unequivocally support the values expressed in our Declaration of Independence and Constitution, but they are not nearly as parasitic, interventionist and contemptuous of the principles of liberty as Gore supporters.
The constitutional provisions created by the Framers to protect us against the interventionist and parasitic classes have long been under siege and are severely weakened. The Bill of Rights, election of senators by state legislators and other protections against mob rule have been weakened or eliminated. Limitations on the power of the central government, through the enumerated powers and separation of power doctrines, have also been severely compromised. Constitutional protections against parasitic plunder, through its prohibition against direct taxation (no income tax), have been abolished.
Thomas Jefferson gave voice to our most important protection in his First Inaugural Address in 1801, saying, "If there be any among us who wish to dissolve the Union or to change its republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."
The right of secession was taken for granted in the founding of our country, and it wasn't only a Southern idea. Timothy Pickering of Massachusetts was George Washington's chief of staff, his secretary of war and secretary of state, and later a Massachusetts congressman and senator. In 1803, Pickering wrote, "The principles of our Revolution (of 1776) point to the remedy -- a separation -- for the people of he East cannot reconcile their habits, views and interests with those of the South and West."
Irreconcilability faces us today. There's one group of Americans who does not wish to bother anyone but wishes to be left alone. Another group of Americans wants to plunder and control the lives of others. This latter group of Americans shows no sign of letting up, much less retreating. A return to rule of law and constitutional government or separation are the only peaceful solutions. Separation and independence don't require that liberty-loving Americans overthrow the federal government any more than it required George Washington to overthrow England or his successor secessionist, Jefferson Davis, to overthrow Washington, D.C.
So here's my question: Should we Americans continue to forcibly impose our wills and values on one another, or should we part company and be friends?
The ignored elephant
Dec. 7, 2000 / 11 Kislev, 5761
http://www.jewishworldreview.com -- ONE OF THE MOST IMPORTANT facts about the Florida election has been ignored in most of the media: There was nothing unusual, much less unique, about the election in Florida. It was like elections all over the country, year after year.
There are always ballots which cannot be counted for one reason or another -- millions of them nationwide. There were more of them in Republican counties in Florida than in the Democratic counties where so much noise, so much spin and so much litigation has been unleashed. These plain facts are like the elephant in the middle of the living room that everyone pretends not to see. What has been happening in Florida after the election is a contrived crisis, used to justify recounts and re-re-recounts, in a desperate hope of winning after losing.
A telemarketing firm was used by the Gore operatives to seek out voters who had any conceivable reason to be unhappy about the voting. If you contacted enough people who went to the Super Bowl, you would find some who were unhappy about their seats, the food, the sun in their eyes, or whatever. It is hardly surprising that the telemarketers came up with some voters who didn't bother to read the plain instructions, written in big letters -- and who therefore either messed up their ballots or were not sure afterwards whether they had done it right.
After collecting such voters in a few heavily Democratic counties, the Gore camp trumpeted this into a national crisis via the media. But utter silence reigned over similar voters in Republican counties, whose votes counted only if they were perforated correctly and read by the voting machine. Yet this has been done under the guise of "making sure that every vote counts"!
Worst of all, a very large segment of the public has bought the spin. Even Florida Supreme Court justice Barbara Pariente responded to charges that this was a grossly unfair way to conduct an election recount by asking why Governor Bush had not requested a similar recount in the rest of the state. In other words, why didn't he do something unprecedented too? More generally, why don't all candidates turn all close elections into legal extravaganzas after the fact?
In future elections, maybe they will. What made Justice Pariente's question so petty and prejudicial was that the issue before the Florida Supreme Court was not Gore versus Bush, but whether elections and recounts are to be conducted even-handedly and in accordance with the law. Even Florida's Democratic attorney general expressed misgivings about the legality of using "a two-tier system" of counting votes one way in a few Democratic counties while counting them differently in the rest of the state.
Anyone who criticized the Florida Supreme Court for its judicial activist order, depriving Secretary of State Katherine Harris of the discretion which the state law gave her, was denounced in much of the media for daring to question these state justices' actions -- until the U. S. Supreme Court unanimously vacated the state court order and asked to know what legal basis it had. A judicial coup d'etat is no more legitimate than a military coup d'etat.
The same U. S. Supreme Court opinion pointed out that the Florida legislature has authority under the U. S. Constitution to select the state's electors if it wishes. Yet media liberals continue to denounce the idea that the legislature could exercise its constitutional authority, instead of bowing to courts that exceed their authority. Too many people in the media treat judicial despotism as the rule of law, when it is the exact opposite of the rule of law.
The rule of law means that judges are as much under the law as anybody else. And the separation of powers -- on which our freedom and democracy ultimately depend -- means that the legislature's authority is no less than that of courts. The legislature's authority is in fact greater than that of courts in the particular areas where the constitution has granted them the specific authority to act, just as that of the courts is greater in other areas.
What a tragedy if this great constitutional edifice, so carefully constructed and followed for so long -- and defended with the bloods and lives of so many Americans over the generations -- can be undermined so easily with a contrived crisis, clever spin and brazen actions.
JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, A Personal Odyssey.
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