Bush v. Gore/Certiorari/Concurrence

by Antonin Scalia

Justice Scalia, concurring.

Though it is not customary for the Court to issue an opinion in connection with its grant of a stay, I believe a brief response is necessary to Justice Stevens' dissent. I will not address the merits of the case, since they will shortly be before us in the petition for certiorari that we have granted. 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 petitioners have a substantial probability of success.

On the question of irreparable harm, however, a few words are appropriate. The issue is not, as the dissent puts it, whether "[c]ounting every legally cast vote ca[n] 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[s]." 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. Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters' intent–dimpled chads, hanging chads, etc.–vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits. If petitioners are correct that counting in this fashion is unlawful, permitting the count to proceed on that erroneous basis will prevent an accurate recount from being conducted on a proper basis later, since it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.

For these reasons I have joined the Court's issuance of a stay, with a highly accelerated timetable for resolving this case on the merits.