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The 11th U.S. Circuit Court of Appeals declined Wednesday to stop hand recounts of votes in Florida or strip them from certified vote tallies. But dissenting judges left the door open for such action if recounts are shown to harm George W. Bush. In a narrow ruling, the court affirmed the decisions of two federal district courts in Florida that last month refused to issue injunctions against election canvassing boards in four of Florida’s most populous counties to halt the recounts. The Appeals Court explained that the Bush campaign had not shown it had been “irreparably harmed” by Florida hand counts because he has been certified as Florida’s presidential winner. In a 29-page opinion, the court’s 12 judges — who sat en banc for three hours of oral arguments Tuesday morning on the Bush appeal and a similar, but independent appeal from Bush voters in Brevard County, Fla. — declined to convert the appeal into a hearing on the constitutional merits of either case. Siegel v. LePore, No. 00-15981; Touchston v. McDermott, No. 00-15985 (11th Cir. Dec. 6, 2000). “As we have emphasized on many occasions, the asserted injury ‘must be neither remote nor speculative, but actual and imminent,’ ” the majority opinion states. “ At the moment, the candidate plaintiffs (Gov. Bush and Secretary Dick Cheney) are suffering no serious harm, let alone irreparable harm, because they have been certified as the winners of Florida’s electoral votes, notwithstanding the inclusion of manually recounted ballots. Moreover, even if manual recounts were to resume pursuant to a state court order, it is wholly speculative as to whether the results of those recounts may eventually place Vice President [Al] Gore ahead.” The opinion drew sharp, lengthy dissents from four judges — Gerald B. Tjoflat, Stanley F. Birch Jr., Edward E. Carnes and Joel F. Dubina. They derided Florida’s hand counts as a clear constitutional violation of due process and equal protection. In his dissent, Tjoflat invited Republican voters to return to U.S. District Court in Florida to have the case considered on its merits. “Plaintiffs may return to the district court tomorrow and ask for a ruling on the merits of their claims,” he wrote. “If they do so and the district court rules, which is likely given the obvious need for immediate and decisive action, the case will return to this court and the decision that some are reluctant to make today will have to be made.” The ruling does little to resolve the overall dispute over recounts in Florida. The Florida Supreme Court takes up the issue today. Although the lower courts earlier had declined to intervene in what those judges regarded as purely a state prerogative, the 11th Circuit did affirm its ultimate right to intervene and determined that the case was not moot, even though manual recounts are complete. “In view of the complex and ever-shifting circumstances of this case, we cannot say with any confidence that no live controversy is before us. … Our conclusion that absention is inappropriate is strengthened by the fact that plaintiffs allege a constitutional violation of their voting rights.” But in four separate opinions, the dissenting judges challenged the majority’s decision to sidestep the merits of both appeals. The plaintiffs “have established a case of serious constitutional deprivation,” said Tjoflat, who attacked the majority view that the record before the court was sparse and needed more facts. “The pertinent facts are well known and uncontested,” he wrote. “Further proceedings in the district court are unnecessary. Plaintiffs’ constitutional injuries are real; they increase in magnitude daily. We should delay no further.” Even though a Leon County Circuit judge has denied Gore’s request to recount ballots in Miami-Dade and Palm Beach counties, Tjoflat noted that the case is pending before the Florida Supreme Court. “Thus the potential for further injury to the plaintiffs and those similarly situated is very real.” Tjoflat also suggested that the Florida Supreme Court’s recent ruling extending the secretary of state’s filing deadline for certified votes actually altered Florida’s election law “and interpreted the state election system in a way that was inconsistent with previous state practice” and created “a vote dilution problem … by the inevitable counting of markings on ballots that were not intended as votes.” Birch’s dissent focused on the lack of standards or guiding principles in Florida’s manual recount statute. The 1989 Florida legislature “abdicated its responsibility to prescribe meaningful guidelines for ensuring that any such manual recount would be conducted fairly, accurately, and uniformly,” Birch stated. “Florida’s manual recount scheme cannot pass constitutional muster.” As a result, Birch said, the law disenfranchised voters throughout the state by giving county canvassing boards the opportunity to discern a voter’s intent “without any objective statutory instructions to accomplish that laudable goal. The effect of such an unguided, standardless, subjective evaluation of ballots to ascertain voter intent is to cause votes to be counted (or not to be counted) based only upon the disparate and unguided subjective opinion of a partisan … canvassing board. Since their opinions as to voter intent are standardless, no meaningful judicial review is possible by a Florida court.” Noting the failure of the punch card system to count all the intended votes is “a problem inherent in that voting system,” Carnes said. “But manual recounts did not occur in all the punch card counties. Not by a long shot,” he wrote. “Instead, the Florida Democratic Party requested a manual recount in only three of 24 Florida counties that used punch card ballots.” “The voters who for whatever reason did not succeed in dislodging the chad next to their choice for President had their votes counted in Broward County and may eventually have their votes counted in the two other selected counties, but the voters in all of the other 21 punch card counties who applied the same pressure on the stylus and brought about the same effect, or lack of intended effect, on the chad connected with their choice for President did not have their votes counted.” Using data supplied by the defendant counties, the state of Florida and the Florida Democratic Party, Carnes pointed out that the selection of counties for hand recounts was not based on the rate of punch card error or upon the relative percentage of senior citizens or minorities in each county’s population. “Instead, the defining characteristic of the three punch card counties chosen to undertake a manual recount is that they are the three most populous counties in the state, all of which gave the party’s presidential nominee a higher percentage of the vote than his opponent.” Carnes noted that the Democratic Party didn’t ask for recounts even in Democratic-leaning counties if they were too small to affect the outcome of the presidential race. Those counties were too small to matter, he said, “when it came to the party’s goal of changing the results of a state-wide election.”

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