Editing Bush v. Gore (section)

==Stay of the Florida recount==
{{See also|2000 United States presidential election recount in Florida|Supreme Court of Florida#2000 presidential election}}
[[File:Election2000news.jpg|thumb|left|Close-up view of [[satellite truck]]s parked by the [[Florida State Capitol]] during the [[2000 United States presidential election|2000 presidential election]] vote dispute]]
By December 8, 2000, there had been multiple court decisions about the presidential election in Florida.<ref>For example, the [[concurring opinion]] in ''Bush v. Gore'' cited the December 6, 2000, decision in ''Touchston v. McDermott'', [http://www.precydent.com/citation/234/F.3d/1133 234 F.3d 1130] {{webarchive|url=https://web.archive.org/web/20081209121021/http://www.precydent.com/citation/234/F.3d/1133|date=December 9, 2008}} (11th Cir. 2000).</ref> On that date, the Florida Supreme Court, by a 4–3 vote, ordered a statewide manual recount of undervotes.<ref>{{cite web |date=December 8, 2000 |title=Supreme Court of Florida No. SC00-2431 ''Gore v. Harris'' 772 S2d 1243 |url=https://caselaw.findlaw.com/fl-supreme-court/1489353.html |url-status=live |archive-url=https://web.archive.org/web/20230428193406/https://caselaw.findlaw.com/court/fl-supreme-court/1489353.html |archive-date=2023-04-28 |access-date=November 24, 2020 |work=Findlaw}}</ref> On December 9, ruling in response to an emergency request from Bush, the U.S. Supreme Court [[Stay of execution|stayed]] the recount. The Court also treated Bush's application for relief as a petition for a writ of ''[[certiorari]]'', [[s:Bush v. Gore/Certiorari/Order|granted that petition]], requested briefing from the parties by 4 p.m. on December 10, and scheduled oral argument for the morning of December 11.{{citation needed|date=December 2020}}

Although opinions are rarely issued in connection with grants of certiorari (a minimum of four of the nine justices must vote in favor of the grant), Scalia filed an opinion concurring in the Court's decision, writing that "a brief response is necessary to [Stevens's] dissent". According to Scalia,

{{blockquote|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. The issue is not, as the dissent puts it, whether "counting every legally cast vote can 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.<ref name=Dissent>{{ws|[[s:Bush v. Gore/Certiorari/Dissent|''Bush v. Gore'' on Application for Stay]]}}</ref>}}

[[File:FlaSupremeCrtBldgFeb08.JPG|thumb|right|Florida Supreme Court]]
Stevens's dissenting opinion was joined by Justices Souter, Ginsburg, and Breyer. According to Stevens,

{{blockquote|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. On questions of state law, we have consistently respected the opinions of the highest courts of the States. On questions whose resolution is committed at least in large measure to another branch of the Federal Government, we have construed our own jurisdiction narrowly and exercised it cautiously. On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely. … [A] stay should not be granted unless an applicant makes a substantial showing of a likelihood of irreparable harm. In this case, petitioners have failed to carry that heavy burden. Counting every legally cast vote cannot constitute irreparable harm. On the other hand, there is a danger that a stay may cause irreparable harm to respondents–and, more importantly, the public at large … . Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.<ref name=Dissent/>}}

A number{{which|date=January 2024}} of legal scholars have agreed with the dissenters' argument that Bush failed to carry the "heavy burden" of demonstrating a "likelihood of irreparable harm".<ref name="auto">{{cite journal |last1=Balkin |first1=Jack M. |date=2001 |title=Bush v. Gore and the Boundary between Law and Politics |url=https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4557&context=ylj |journal=The Yale Law Journal |volume=110 |issue=8 |pages=1407–1458 |doi=10.2307/797581 |issn=0044-0094 |jstor=797581 |archive-url=https://web.archive.org/web/20190426220243/https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4557&context=ylj |archive-date=2019-04-26}}</ref>