irreparable injury

[Tom Grey]

Mike McConnell and Mark Scarberry have defended the stay order on the
ground that it is preferable for the Court not to know how the recount came
out before deciding on its legality. As Mike puts it, "To wait until after
the recount has been completed, and then to decide, is tantamount to
choosing the President rather than choosing the procedure."

But the grant of the stay WAS in effect the choice of the President. It
drove the nail into Gore's coffin, taking away his last realistic chance,
the possibility that he might be determined to be the winner of the Florida
popular vote within the safe harbor period set by 3 USC 5. The Justices
could never have had the luxury of ruling on the merits of the appeal while
preserving either the reality or the appearance of being behind a veil of
ignorance. Everyone always knew that a ruling one way meant a Bush victory,
whereas a ruling the other way returned the contest to Florida and Congress
for eventual resolution.

Mark additionally argues that the Florida recount is simply a lawless
charade, so that allowing it to go ahead is equivalent to a judge's letting
a legally insufficient criminal case go to a jury stacked to return a
guilty verdict. I agree that if the recount had that character, a stay
might be appropriate. There would be essentially no equities on one side,
so that the slight legal  equities on the other side (recall, the "legal"
judgment will shortly thereafter be voided and condemned as lacking all
basis) would indeed predominate. So, yes (and Mike says this too), the
merits cannot be completely separated from the irreparable injury issue.

But in response, I simply ask Mark and Mike to consider the level of
partisan certitude that is required to apply this characterization as a
matter of law to the Florida recount.

The merits of the present federal case have never been briefed or argued. A
reading of the briefs makes clear that the Article II argument is much
weaker here (to me, vanishingly weak), and the particular Rehnquist/Scalia
point relied on in the Palm Beach Co case is not present at all. The Equal
Protection argument is the one I expect the Five to rely on in issuing
their now essentially pre-ordained ruling on the merits. I ask lawyers to
read the briefs of the parties on this question (Bush, 40-45; Gore, 35-47)
and then conclude that the exchange comes out easily or obviously on the
Bush side, much less makes out the Florida ruling to be the kind of sham
that would be required for Mark's argument to work.

I thought the combined effect of the remedial difficulties and the virtues
of bringing the state's electoral vote within the Title 3 safe harbor made
a substantial "balance of equities" case against the recount as a matter of
state law.  As a matter of Equal Protection law, though, the Gore arguments
seem persuasive to me. The Bush arguments require the application of the
dilution concept derived from the Reapportionment Cases to a context that
would, if consistently carried out, too deeply entangle the federal courts
in the county option aspects of state election law. (Mike has proposed a
clever way of making this a ruling for this train and trip only, by relying
on the consolidation of the contest cases in a single state court; it is a
useful expedient for a Court wishing to isolate the ruling and confine its
otherwise unfortunate doctrinal implications.)

I discuss these matters not to attempt to persuade anyone about the merits
being debated this morning, but only to make clear that the underlying case
can't plausibly be seen in the light that would be required to defend the
finding of irreparable injury. Much less could it have plausibly been seen
with this degree on legal certitude on Saturday, when the stay was issued.

Defense of the stay on the grounds urged by Mark requires a view of the
merits of the case for the recount that essentially denies either the
competence or the good faith of those on the other side. This is the source
of the rage that it has provoked in those of us who were struggling hard to
see the basic Bush drive to frustrate the hand recounts as mistaken rather
than simply an exercise in conscious cynicism.

I for one could have unhappily but resignedly accepted the result of this
election as delivered by a partisan majority of the Florida legislature and
the House.  When it is resolved -- as it now has been -- by a partisan
Supreme Court majority operating lawlessly under the trappings of law, the
result is in my own mind fatally poisoned. I wouldn't think this subjective
reaction worth passing on to the list, except that I have heard the same
reaction again and again from other lawyers since the stay was issued.


>The attacks on the Court's irreparable injury finding have been so strong
>and one-sided that I wish to comment on it. I think it is at least a close
>case, and certainly within the range of reasonable decisionmaking.
>
>When deciding about whether a particular procedure should be used, it is
>much, much to be preferred that the decisionmaker not know how it will come
>out.  Obviously, many Gore supporters think a recount will favor their guy,
>but the Miami Herald Saturday morning, and a seemingly independent Harvard
>statistician, have predicted that it might even increase Bush's margin of
>victory. (My personal reading of the evidence is that it all depends on
>which standard is used, but I do not claim to be an expert.) If the Supreme
>Court is going to decide whether the recount is lawful, I think it is a very
>good thing that the Court does not know whom the recount will favor. To wait
>until after the recount has been completed, and then to decide, is
>tantamount to choosing the President rather than choosing the procedure.
>
>Add to this the merits factor. In cases where the decision whether or not to
>grant preliminary relief is very high stakes, the preliminary injunction
>decision tends, as a practical matter, to collapse into the merits. I
>strongly suspect that the Justices have thought about this case, followed
>the arguments, and know where they are going to come out. Under those
>circumstances, the question of irreparability takes second seat to the
>merits.
>
>
>
>Michael McConnell
>University of Utah College of Law
>332 South 1400 East Rm. 101
>Salt Lake City, UT 84112
>
>
> >
> >


-- Tom Grey     Stanford Law School    tgrey at law.stanford.edu