Here are some excerpts from an opinion Scalia pinned to the US Supreme Court's stay of the Florida Supreme Court order to manually canvass the uncanvassed votes from across the state:

"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].”"

Florida law sees these as legally cast votes and indeed they have been counted as such in 14 counties.  Moreover, votes like the ones that were, until recently, being counted in Florida are considered legal in dozens of states across the Union, including Texas.  Is it not remarkable that Bush's lawyers want to classify as illegal in Florida votes that would be legal in his own state?  Moreover, these ballots would have been counted long ago in Texas in an election this close.  Apparently Scalia forget to read Florida's Election Code before questioning the "legality" of these votes and their statutory right to be canvassed.  Section 101.5614(5) clearly states "If any paper ballot is damaged or defective so that it cannot be counted properly by the automatic
tabulating equipment, the ballot shall be counted manually at  the counting center by the canvassing board....No vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board."

Scalia then makes the most intellectually hollow argument of his entire opinion:
"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."

Scalia's motivation here is clear.  Protect Bush from the public relations disaster that might ensue if enough additional votes were found amongst those legal Florida votes to put Gore ahead.  Counting the votes does not make them part of the public record; only when those votes are added to the official state tally are they recognized as official votes.  The 11th Circuit Court in Atlanta, which ruled on Bush's request for a stay about an hour before the Supreme Court, argued exactly that in its 8-4 denial of the stay request.  For similar reasons, that same Circuit Court refused to stay the manual counting of ballots in South Florida Counties several weeks ago.  Even after the manual counts in South Florida finished and some of the totals added to the state's certified results, the Atlanta Circuit Court ruled that it would not decide on the legitimacy of Bush's case against manually counted votes until he could show harm as a result of those counts (i.e., until it costs him the lead).  At the very least,  it does not hurt anyone to have the votes counted (except maybe in the court of public opinion) until such votes are added to the certified total.  It may not even constitute harm unless it costs you the lead according to the Federal Court in Atlanta.

When courts do rule that illegal votes have been counted and/or included in the official certification, the courts have always either prevented those votes from being included in the official totals (much like Judge Sauls did with Palm Beach's late votes) or they remove them from the total.   Scalia's decision here is politically motivated not legally motivated; he believes the  counting should stop not because the court will lack the legal authority to deem such counting illegal or not permissible in the state's official tally (that of course is what the Court is being asked to consider), but that the counting should stop because the results may generate bad PR for Bush.

Scalia's argument continues:
"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."

The standard by which the State Supreme Court ordered that these votes be canvassed is the one found in Florida's Election Code.  That standard is the election law that Scalia himself seems so obsessed with defending from any interpretations, clarifications, or modifications.  His judicial position creates a Catch-22 for Florida.  If election officials do use the statutory standard, then they may be violating the 14th Amendment in Scalia's mind because it is too liberal a standard.  However, if the courts try to change it or clarify it, then Scalia would jump all over them for changing the election laws after the election (i.e., a violation of Title 3 Section 5 of the US Code).  It seems Scalia's point here is a transparent effort to discredit this final count by discrediting the counting standard.  If he was truly concerned about possible violations of the 14th Amendments Equal Protection Clause due to varying standards from county to county, then his concern would not be limited to just the manual counts.  Varying standards across counties has been the norm starting with the different voting systems with differing levels of reliability used in different counties on election night, then continuing with the automatic recount, the absentee ballot count, and the manual recounts (click here for more information about how all the ways Florida violated the equal protection clause during the vote count).  Scalia's equal protection concerns in this matter are made even more ridiculous because by his own interpretation of that standard, the very federal law that allows states to provide their own methods for picking electors is a violation of the constitution's equal protection standard because it allows for variations in the treatment of voters and the counting of those votes across states and across counties.  The only logic conclusion for Scalia's 14th Amendment concerns is a repeal of Title 3 Section 5 and the enactment of nationally standardized system.  Although I believe that a nationalized system is exactly what we need, I have a hard time believing that a state's rights guru like Scalia would truly advocate such a system.  However, it is an intellectually untenable position to be both outraged by any attempt to violate Title 3 section 5 (i.e., the one that prohibits any change election laws after election day) and outraged by 14th Amendment violations.  His own position neither allows for a change in the law to correct for any possible 14th Amendment conflicts nor does it recognize that the very nature of Title 3 Section 5 creates variations in the way voters and votes are treated depending upon where they live.
 

Now compare Scalia's argument to the dissenting opinion filed by STEVENS, and joined by SOUTER, GINSBURG, and BREYER.

"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 the respondents—and, more importantly, the public at large—because of the risk that “the entry of the stay
would be tantamount to a decision on the merits in favor of the applicants.” National Socialist Party of America v. Skokie, 434 U. S. 1327, 1328 (1977) (STEVENS, J., in?2 BUSH v. GORE STEVENS, J., dissenting chambers).

They continue:
"Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election. It is certainly not clear that the Florida decision violated federal law. The Florida Code provides elaborate proce-dures for ensuring that every eligible voter has a full and fair opportunity to cast a ballot and that every ballot so cast is counted. See, e.g., Fla. Stat. §§
101.5614(5), 102.166 (2000). In fact, the statutory provision relating to damaged and defective ballots states that “[n]o vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing
board.” Fla. Stat. § 101.5614(5) (2000). In its opinion, the Florida Supreme Court gave weight to that legislative command. Its ruling was consistent with earlier Florida cases that have repeatedly described the interest in cor-rectly ascertaining the will of the voters as paramount."

As these Justices are indicating, the majority's stay creates a "win no matter what" situation for Bush and a "lose no matter what" situation for Gore.  In other words, even if Bush ends up losing his appeal, by the time the Justices decide the case on Dec. 12, it will be too late to do any more counting (that is somewhat debatable, but most scholars agree that Dec. 12 is pretty much the end of the game).  So if Bush wins, he wins, and if Bush loses, he wins.