Not so fast

US Supreme Court halts count, orders hearing tomorrow

By Michael Kranish and John Aloysius Farrell, Globe Staff, 12/10/2000

ALLAHASSEE - A recount of 45,000 disputed ballots that had revived the presidential hopes of Al Gore came to an abrupt halt yesterday afternoon, after a sharply divided US Supreme Court approved George W. Bush's request for an emergency stay.

The order from Washington - which included a concurring opinion that suggested the high court is inclined to end the recount entirely - was issued as the vice president's aides said he was gradually picking up the votes needed to win the presidency.

The US Supreme Court ordered oral arguments to be heard in the case tomorrow, one day before the deadline for Florida to select its presidential electors.

Unless the counting is allowed to continue, it appears highly unlikely that Gore could overcome Bush's slender margin.

Just 23 hours after the Florida Supreme Court voted 4-3 to order a statewide manual recount of disputed ballots, the US Supreme Court voted 5-4 to hear Bush's request to stop the recount. In the interim, the US Supreme Court halted the count until the oral arguments are heard, thus freezing a process that had begun across the state yesterday morning.

''The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election,'' Justice Antonin Scalia wrote in a concurring opinion issued yesterday afternoon.

Bush's main Florida adviser, James A. Baker III, while saying the Texas governor was pleased with the ruling, stressed that the drama was not over yet. Asked at a press conference in Tallahassee whether the stay was tantamount to a ruling in favor of Bush, Baker responded: ''Of course not. They haven't ruled on the merits. This is a stay.''

David Boies, the Gore lawyer, appeared minutes later and said he was optimistic that the nation's high court would eventually rule in Gore's favor. But Boies clearly was fearful that the stay would leave too little time to count the ballots, even if the US Supreme Court rules in Gore's favor.

''I think the timing issue is probably the single most disappointing thing about what the Supreme Court has done,'' he said. ''There's no doubt that by delaying it, it has created a very serious issue as to whether that count can fully be completed or not by Dec. 12.''

Boies, who for days has been highlighting the importance of the Dec. 12 deadline, yesterday backed off, saying the deadline for selecting electors was not a ''magical date.'' Boies noted that Dec. 18 is the date by which electors actually cast their votes, suggesting that the high court could allow the count to continue until then.

''I think there's no doubt that Dec. 18 is the final deadline,'' Boies said.

Another Gore lawyer, Ron Klain, said he expected the US Supreme Court to provide ''guidance'' about the importance of the Dec. 12 date.

''Obviously it's a decision by the justices that there is some chance that Governor Bush will prevail,'' Klain said. ''But that isn't a decision that he will prevail.''

While the Gore lawyers sought to put the best face on the stay, the US Supreme Court ruling put a damper on what had been a festive mood in the vice president's camp. As the counting progressed across the state, the Gore team had grown increasingly confident that they would pick up the 155 votes needed to pull ahead of Bush. Bush's lead of 537 votes had been trimmed to 154 when the Florida Supreme Court on Friday added ballots already counted in Miami-Dade and Palm Beach counties. Bush lawyers, however, disputed that figure, saying the Texas governor's lead was 193.

In any case, that lead was shrinking yesterday before the recount was halted, said Gore aides, who reported that the vice president had picked up 58 votes in 13 counties. But there was no official tally, and Bush aides said the governor had picked up votes.

In granting the stay, the five majority justices found that Bush would have suffered irreparable harm if the counting had continued. The dissenters came to the opposite conclusion, saying the stay would do irreparable harm to Gore.

The Supreme Court broke along philosophical lines in its ruling. The conservative bloc - Chief Justice William Rehnquist and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Sandra Day O'Connor - voted to stop the recounts. The more liberal bloc - Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and David Souter - dissented.

In addition to ordering its stay of the recounts, the Supreme Court granted Bush's request for a writ of certiorari, meaning it put the case on its docket. In a one-paragraph order, the court set 90 minutes aside on Monday morning, beginning at 11 a.m., to hear arguments in the case.

The court's order was accompanied by a terse but strong concurring opinion by Scalia that seemed to carry the weight of doom for Gore's presidential hopes.

Scalia not only defended the majority's opinion, he also suggested that the five-member conservative bloc would stick together through the rest of the case and would ultimately overturn the Florida Supreme Court's ruling.

''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,'' Scalia wrote.

While there is still a chance that one of the justices - Kennedy and O'Connor have been the swing votes in the past - will change his or her mind after oral arguments tomorrow, Scalia's blunt assessment may have been the day's worst news for Gore.

''I have to take Scalia's word for it,'' said Michael Glennon, a constitutional scholar at the University of California at Davis. ''If he tells us that Bush will eventually win, then it is probable that Bush will eventually prevail on the merits.''

Scalia showed great sympathy for Bush in his opinion. The justice said that Bush's legal team had met the court's high standard for granting a stay - that it prove there was risk of ''irreparable harm'' - when listing the political damage that the on-again, off-again recounts were doing to the legitimacy of a Bush presidency.

''Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,'' Scalia wrote.

But the four dissenting justices, led by Stevens, said the stay order violates the high court's normal respect for state courts.

''To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history,'' Stevens wrote. ''On questions of state law, we have consistently respected the opinions of the highest courts of the states.''

Stevens also cast doubt on the rationale for issuing the stay.

''Counting every legally cast vote cannot constitute irreparable harm,'' Stevens said. ''Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.

''The Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted,'' Stevens wrote.

The Supreme Court issued its order a few moments after Gore and Bush earned a split decision from the 11th Circuit US Court of Appeals in Atlanta. The Atlanta court declined to stop the recounts, but ordered Florida officials not to alter the official, state-certified results that had declared Bush the winner by 537 votes.

Earlier in the day, the Florida Supreme Court rebuffed Bush's request to halt temporarily the imposition of its order.

Thirty-two days after Election Day, the US Supreme Court's action was the latest in a series of topsy-turvy events that have thrown momentum back and forth between the candidates. On Friday, the Florida Supreme Court had narrowly ruled in Gore's favor, overturning a Monday decision by a circuit judge who had rejected the vice president's request for a recount.

The order from Washington gradually made its way to counting centers across the state. At the Leon County Public Library, where the Miami-Dade County ballots were being tabulated, about 100 supporters of Bush and Gore were stunned by the latest news from the US Supreme Court.

''Give it up, Gore,'' the Bush backers chanted, taunting a smaller contingent of Gore backers. The Gore supporters held signs that said, ''Gov. Bush. What are you scared of? Don't you trust the people?''

Bill Engledow, a Bush backer from Georgia with a megaphone, pulled a pocket edition of the US Constitution from his pocket and read aloud the section that says legislatures have the power to pick presidential electors. It is the same section that was cited by the Florida Supreme Court chief justice, Charles T. Wells, in his dissent from his court's majority order to begin the recount.

Gore supporters were stunned by news of the US Supreme Court decision. ''Leave it to the state court,'' said Melody McGuire of Tallahassee.

But the state Legislature, dominated by Republicans, does not want to leave it to the state court. Republican leaders, who view the state court as usurping legislative powers and rewriting the law, are prepared on Tuesday and Wednesday to use their power to pick a slate of electors pledged to the Texas governor.

The Legislature was concerned that the court challenges surrounding the usual slate of electors would create a challenge to the body's legitimacy. With the US Supreme Court decision to halt the count, and the fate of the slate of electors unclear, the Legislature appears all the more likely to pick its own slate.

Kranish reported from Tallahassee; Farrell from Washington.