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Cite as: 531 U. S. ____ (2000) 1 SCALIA, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 00-949 (00A504) _________________ GEORGE W. BUSH ET AL. v. ALBERT GORE, JR. ET AL. ON APPLICATION FOR STAY [December 9, 2000] JUSTICE SCALIA, CONCURRING. 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, 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 petitioner is 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 stay, with a highly accelerated timetable for resolving this case on the merits. |
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