Edition: U.S. / Global

CONTESTING THE VOTE: THE COURT RULING; Bush Had Sought Stay -- Hearing Is Tomorrow

Published: December 10, 2000

In a sudden and devastating blow to Vice President Al Gore's presidential hopes, the United States Supreme Court voted 5 to 4 today to stop the vote counting that had begun hours earlier in Florida. The court set Monday morning for arguments on Gov. George W. Bush's appeal of the Florida Supreme Court ruling that ordered manual recounts across the state of ballots that initially showed no vote for president.

With the clock ticking inexorably toward a Dec. 12 deadline for certifying electors, the Supreme Court's order, issued shortly before 3 p.m., could have the effect of erasing the Democrat's chances that the Florida Supreme Court had so dramatically revived barely 24 hours earlier with its 4-to-3 ruling.

Even if by some chance the United States Supreme Court eventually rules in the vice president's favor, the ruling could come too late. While not conceding ultimate defeat, David Boies, Mr. Gore's chief lawyer, said today that ''if we had world enough and time,'' a short-term stay would make little difference, but that there was now a ''very serious issue'' as to whether the vote counting could be finished in time even if the court's eventual ruling allowed it to resume.

Briefs are due at the court at 4 o'clock Sunday afternoon -- two hours after the recount was originally supposed to have been completed -- with 90 minutes of argument set for 11 a.m. Monday. Partial returns from the few hours of vote counting before the court intervened showed that Mr. Gore was making progress, according to Democrats in Florida, toward erasing his deficit of fewer than 200 votes.

The justices who voted to grant the stay were Chief Justice William H. Rehnquist and his four conservative colleagues: Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

The dissenters were the court's four most liberal members: Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The bitter division on the court, awkwardly papered over only last Monday with an order to the Florida Supreme Court to clarify an earlier ruling, burst into the open with the action this afternoon.

Justice Stevens filed a two-page dissenting opinion, which the other three dissenters joined. ''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,'' Justice Stevens said.

The majority did not issue an opinion in support of its order, but Justice Scalia said he felt obliged to issue a statement in response to the Stevens dissent. [Text, Page 45.]

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

Justice Scalia said that ''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.''

On one level, that statement was simple boilerplate: any party seeking a stay from the United States Supreme Court, or any other court, ordinarily has to show a substantial probability of success. But in this case, the granting of the stay demonstrated a probability was likely even higher than ''substantial,'' because any of the five justices in the majority who harbored doubts about the eventual outcome probably would have allowed the vote counting to continue while the court considered the case.

In his dissenting opinion, Justice Stevens said there was a risk that granting the stay was equivalent to deciding this case in favor of Mr. Bush. ''Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.''

Mr. Boies said today that the brief the Gore team would file on Sunday would argue strongly that the United States Supreme Court should not interfere with a state Supreme Court's interpretation of state law. Throughout this dispute the Democratic legal team has not hesitated to point out the paradox of the Republican side, usually so solicitous of state sovereignty, seeking federal court intervention to stop the recounts. The Bush team was the first to bring a lawsuit in this case, filing an emergency motion on Nov. 11 in Federal District Court in Miami to stop the recounts that were then under way.

And today it was Mr. Gore's lawyer, Mr. Boies, who asserted ''this is a matter of state law, state law is deserving of deference,'' a view traditionally ascribed to conservatives.

Governor Bush had filed the urgent application for a stay on Friday night, hours after the Florida Supreme Court reversed a lower state court and ordered statewide manual recounting of tens of thousands of ballots.

In his dissenting opinion, Justice Stevens identified three principles he said the order today had violated: respect for rulings by state courts on questions of state law; the cautious exercise of the United States Supreme Court's jurisdiction on matters that largely concern other branches of government; and declining to exercise jurisdiction over federal questions ''that were not fairly presented to the court whose judgment is being reviewed.''

''The majority has acted unwisely,'' he said.

The court acted to take jurisdiction of the case without waiting for Governor Bush's lawyers to file a formal appeal of the Florida Supreme Court's ruling. The justices acted on the basis of the 40-page application for a stay that the Bush lawyers filed late Friday.

Under the Supreme Court's rules, a stay requires the votes of five justices and, in addition to a likelihood of success, requires the applicant to show that ''irreparable injury'' would result unless the court intervened on an emergency basis, without waiting to review the merits of a case.

In seeking to meet that standard, Mr. Bush's stay application said the Florida Supreme Court ruling ''imperils Governor Bush's proper receipt of Florida's 25 electoral votes'' by raising ''a reasonable possibility that the votes will be called into doubt -- or purport to be withdrawn -- at a time when the Dec. 12 deadline for naming Florida's electors'' would make any later judicial relief futile.

In their brief opposing the stay, Mr. Gore's lawyers said the assertion that ''a candidate for public office can be irreparably harmed by the process of discerning and tabulating the will of the voters'' was surprising and ''remarkable.''

The question of irreparable harm was evidently the question in contention for the justices today. In his concurring statement, Justice Scalia said that ''the counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner,'' Governor Bush, ''by casting a cloud upon what he claims to be the legitimacy of his election.''

Justice Stevens, in his dissent, said that while ''counting every legally cast vote cannot constitute irreparable harm,'' there was a danger that the stay itself would cause irreparable harm not only to Mr. Gore but ''more importantly, the public at large'' because, given the deadlines, it would amount to a decision on the merits.

''Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election,'' Justice Stevens said.

He added: ''As a more fundamental matter, the Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted.''

The case, Bush v. Gore, No. 00-949, presents obscure statutory and constitutional issues that, while they will form the basis of the eventual decision, will inevitably be overshadowed in the eyes of history by the political import of what occurred today.

Rarely in the United States Supreme Court's modern history have the justices' often-expressed concerns about preserving the court as an institution above and outside of raw politics foundered so visibly. Rarely, if ever, has the court faced such a supercharged political moment across dividing lines of such evident anger and mistrust.

Monday was to have been the start of a four-week year-end recess, celebrated with the trimming of the court's 22-foot blue spruce Christmas tree scheduled for Wednesday, and a party at which the chief justice traditionally leads his colleagues and court employees in a singalong. The mood this year is likely to be not quite so festive.

Photo: Demonstrators supporting Al Gore gathered outside the Supreme Court in Washington yesterday several hours after the court stayed the recounts. (Paul Hosefros/The New York Times)(pg. 45)