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The 11th U.S. Circuit Court of Appeals judges did Tuesday what the U.S. Supreme Court shied away from doing: They tackled the constitutionality of Florida’s presidential hand counts. The 11th Circuit ruling could put an end to the round robin of Florida court claims and appeals, most of them centered on hand-counted ballots. If the 11th Circuit rules that hand counts are unconstitutional, it would supersede all rulings from Florida courts, even the Florida State Supreme Court. The Democrats’ only recourse would be an appeal to the U.S. Supreme Court, which so far has been reluctant to intervene in the Florida vote. The 12 judges relentlessly questioned lawyers on two key issues during a three-hour session of the court. The key issues: whether a lack of uniform standards in recounting the ballots by hand resulted in a violation of due process and whether hand recounts gave too much weight to votes in the urban counties where Democrats requested them. Those questions are at the heart of two appeals by Republican voters from two federal courts in Florida. The Bush campaign united with sympathetic Florida voters in one appeal that originally sought an injunction to halt hand recounts in Palm Beach, Miami-Dade, Broward and Volusia counties and to exclude them from certified tallies. Siegel v. LePore, No. 00-15981 (11th Cir. Dec. 5, 2000). The second appeal, from Bush voters in Brevard County, Fla., sought to have the state law governing hand recounts declared unconstitutional. Touchston v. McDermott, No. 00-15985 (11th Cir. Dec. 5, 2000). James Bopp Jr. — an attorney with the James Madison Center for Free Speech, a conservative legal foundation in Washington, D.C. — represented those voters. In an appeal independent of the Bush campaign, Bopp argued that the Florida statute illegally allows a candidate to demand manual recounts only in areas that might favor him. A ruling for the Republicans could invalidate all of the hand counts, whether for Bush or for Gore, across the state. Certified totals would then revert to the original machine recounts that gave Bush a slight edge in Florida. The court appeared legitimately concerned about those constitutional questions. But Judges Charles R. Wilson and Rosemary Barkett also pressed attorneys for both the Republicans and Florida’s Democratic Party as to whether the federal courts can legitimately intervene and whether the Nov. 14 certification of Florida’s presidential ballots made the questions moot. The court could issue its opinion as early as today. “The Court recognizes the importance of this case,” said Chief Judge R. Lanier Anderson III. “We also recognize the urgent time frame. We have prepared ourselves with that in mind, not withstanding the superb lawyering in this case.” The court’s decision could be appealed to the U.S. Supreme Court. Last week the Supreme Court declined to consider the constitutionality of the hand counts until the 11th Circuit had considered these cases. Bush attorney Theodore B. Olson, of Gibson, Dunn & Crutcher in Washington, had barely begun his oral arguments when Wilson raised the first question. “Why isn’t this case moot?” A short time later, Barkett noted that Bush currently is Florida’s certified presidential winner. Why then, she asked, should the federal courts intervene now. “There is no, at this point, imminent harm,” she said. Nonetheless, most of the questions from the judges suggested that they would have few qualms about stepping in to ensure that the hand counts were constitutional and fair. Judge Stanley F. Birch Jr. appeared to scoff at the notion that the federal courts should remain aloof until after state remedies had been exhausted. “Wouldn’t the Constitution set a standard, as it did during the civil rights era? Are you saying the U.S. Constitution has no role in this sequence of events?” he asked Florida Assistant Attorney General Charles Fahlbusch, who argued on behalf of the state of Florida. Noting that Fahlbusch wanted the court to abstain, Judge Stanley Marcus said, “Our case law suggests that when the nature of the controversy involves the right to vote, we will not abstain. Why should we?” The Florida county canvassing boards’ apparent lack of standards for discerning voter intent during the hand counts provoked sharp questions from the court. “What is the first piece of evidence you would examine to determine a voter’s intent?” Judge Gerald B. Tjoflat demanded of Fahlbusch. He then answered his own question: “The instructions. You certainly would begin with them, would you not?” Those directions, posted at the Florida polls and on the voting machines, instructed voters to punch cleanly through the ballot and remove any hanging chads. But, Tjoflat said, “There’s nothing at all in Florida law that gives them [the county canvassing boards] counseling to determine voter intent. What authority has instructed the county canvassing boards what pieces of evidence to look at to determine voter intent?” In concert with Tjoflat, Birch challenged Democratic Party attorney Teresa Wynn Roseborough, a partner with Atlanta’s Sutherland Asbill & Brennan, to list the standards that county canvassing boards were to apply when determining voter intent during the hand counts. “The essence of justice has to be that everyone plays by the same rules. But where in that statutory scheme does it tell Florida canvassing boards to divine the intent of the voters? They don’t set any standards, do they?” Birch demanded. But Judge Frank M. Hull echoed Roseborough’s arguments that canvassing boards do have standards. “The three-member county canvassing board is actually a fact-finder,” she said. “When you charge a jury in a criminal case, you have to look at all the evidence and determine the intent, and that’s what the county boards have done.” The court also expressed concern about whether Florida voters’ ballots are given equal weight, regardless of the county in which they were cast. In close elections where recounts may be necessary, what prevents a state legislature from passing a law permitting recounts only in a state’s largest cities? Judge Edward E. Carnes asked. “That wouldn’t violate the right of the people to vote in sparsely populated counties?” And how do such circumstances differ from what the Democrats have been doing with the Florida hand counts? he demanded of Roseborough. “The fundamental unfairness” of counting some votes only by machine while others were interpreted as they were counted by hand clearly disturbed Carnes. When Roseborough insisted that the state has absolute authority to determine how it conducts elections, Carnes responded, “You can’t do that in an unconstitutional way.” The possible dilution of votes in counties where hand counts were not conducted is one element of irreparable harm, said Bopp, who argued for the Brevard County voters. But hand counts, in this case, harmed Bush as well, he said, by forcing him to prove why those votes should not be tallied. Bopp, who fielded comparatively few questions from the panel, said he doesn’t object to all manual recounts. Instead, he insisted the state must have a procedure for selecting the counties to be recounted and a procedure for establishing the intent of voters. “The manual recount system in Florida has placed everlasting doubt on who is the winner of this election,” he said. “Either side may forever say the outcome may have been affected by the manual recount.” Notably silent throughout the three-hour session was Judge J.L. Edmondson. Edmondson wrote a strong dissent five years ago in Roe v. Alabama in which he argued strenuously against federal involvement in state election procedures. It was Edmondson’s dissent that U.S. District Judge Donald Middlebrooks in Florida quoted when he refused to stop the Florida hand counts. Roseborough ended her argument in Touchston by quoting another passage from that same dissent, prompting a small smile from Edmondson: “This well-settled principle — that federal courts interfere in state elections as a last resort — is basic to federalism, and we should take it to heart.”

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