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The 11th U.S. Circuit Court of Appeals in Atlanta — the next stop for the Bush campaign to halt hand recounts of Florida’s presidential vote — has already affirmed its right to intervene in an election. The Bush campaign filed a notice of appeal with the 11th Circuit late Tuesday afternoon preserving the Republicans’ right to challenge a U.S. district court judge’s refusal to stop manual recounts of votes in Florida. A three-judge panel could take up the matter as early as today. The 11th Circuit has interpreted the definition of what constitutes a federal election broadly. In 1999 a three-judge panel, including former Florida Supreme Court Justice Rosemary Barkett, affirmed the right of the federal courts to wade in on allegations of vote-buying in a Georgia county commissioner’s race simply because there was an uncontested federal race on the same ballot. USA vs. McCranie, No. 97-9358 (11th Cir. March 12, 1999). The text of that ruling would appear to give the 11th Circuit ample precedent to pull on its legal boots and wade into the Florida presidential fracas, Siegel vs. LePore, No. 00-9009-civ (M.D. Fla., Nov. 13, 2000). “Whether federal jurisdiction exists in this type of fraudulent voting activities case is a question of first impression in this circuit,” wrote Judge Joel F. Dubina, who authored the McCranie opinion for the three-judge panel. “As a starting point, we observe that the federal vote buying statute … and the multiple voting statute … plainly prohibit voting fraud ‘in any general, special, or primary elections held solely or in part for the purpose of electing federal candidates.’ ” Citing a 1994 7th Circuit opinion, United States v. Cole, 41 F.3d 303 (7th Cir. 1994), Dubina noted, “The court held that federal jurisdiction exists even if the federal candidate is unopposed because fraud in a mixed election does have an impact ‘on the integrity of the election.’ “ That statement would seemingly lay to rest any protest that the presidential election in Florida is a state function that should be governed by the state, rather than the federal, courts. But McCranie involves blatant allegations of corruption. The 1996 candidates for the Dodge County Commission and for sheriff had set up tables inside the courthouse at opposite ends of the hall, where supporters on both sides openly bid for absentee votes. Buyers for both sides paid voters $20 to $40 after the voter cast his or her absentee ballot, according to the appellate opinion. Cash payments often occurred in the courthouse bathroom. The Bush campaign’s suit, on the other hand, states, “There is no allegation or evidence of voter fraud or of coercion or corruption,” in Florida, and that fraud is not the campaign’s reason for seeking to halt the recounts. But in McCranie, the appeals panel interpreted federal election statutes broadly. The Cole decision “correctly observed that the federal election fraud statutes were implemented to protect two aspects of a federal election: the actual results of the election and the integrity of the process of electing federal officials,” Dubina wrote. Citing a 5th Circuit case, United States v. Bowman, 636 F.2nd 1003 (5th Cir. Unit A. Feb. 1981) — which is binding on the 11th Circuit because it was then part of the 5th Circuit — Dubina noted, “The language in Bowman not only prohibits any fraudulent activity that affects the outcome of a federal election but also prohibits any activity that has the potential to affect ‘the integrity and purity’ of an election.” Nor has the appeals court shied in recent years from intervening in a close state election, regardless of whether a federal candidate appeared on the ballot. In 1995, a three-judge panel including former Florida District Court Judge Gerald B. Tjoflat, Stanley F. Birch Jr., and J.L. Edmondson, all of them appointed by Republican presidents, asserted jurisdiction in a legal brawl over the counting of absentee ballots in Alabama in the race for state treasurer and chief justice of the Alabama Supreme Court. Both races were hotly contested, and the candidates were no more than 200 to 300 votes apart. An Alabama circuit court judge had ordered that 1,000 to 2,000 absentee ballots that had been improperly filled out and were disqualified to be counted anyway. A federal judge in Alabama subsequently enjoined Alabama electoral officials from counting the contested ballots. His ruling was appealed. In a split vote, the appeals panel affirmed the lower court’s injunction preserving all the ballots and enjoining the Alabama secretary of state from certifying the election results. Then, it decided to pose a question to the Alabama Supreme Court as to whether certifying the contested absentee ballots was, in fact, legal. The appellate panel defended its decision, stating, “The unnecessary delay that would result were we to leave the plaintiffs to their state court remedy would be particularly insidious: It would extend the time that the two offices at issue remain in limbo, hindering those offices in the handling of state affairs. Time is, therefore, of the essence.” Edmondson, a Reagan appointee who penned the Elian Gonzalez decision earlier this year, dissented. “Nothing is known in this case about whether the alleged illegalities have affected or will affect the outcome of the pertinent elections. Yet, today we plow into Alabama’s election process and uphold a preliminary injunction that, in effect, overrules a pre-existing state court order which had directed that the contested votes be counted. And, instead, the federal courts (basically, stopping short the state election processes) order that the contested votes be not counted at all. This high level of federal activity seems unnecessary and, therefore, improper. So, I conclude that the district court abused its discretion. … I would not interfere with the counting of the contested ballots.” But two months later, the same panel remanded the case to the district court for trial on the merits with a list of 17 questions to address after the Alabama Supreme Court opined that the contested ballots were, in fact, legal. The district court judge eventually ruled that counting the contested ballots diluted the votes of those people who cast their votes in conformance with state law. He ordered the Alabama Secretary of State to certify the election results without the contested ballots. An appellate panel, this time composed of Floridians Tjoflat and Barkett, and Chief Judge R. Lanier Anderson III, affirmed the lower court ruling. That issue of voter dilution also has been raised in the Bush campaign’s federal suit. Because manual vote counts were instituted only in selected precincts and counties in Florida, allegedly without any uniformity in procedure or standards for ballot counting, the hand recounts would deny other voters outside those counties “the effective exercise of their right to vote and to have that vote counted in an equal and consistent fashion with all other voters in this election,” the complaint states. “If a manual recount gives effect to particular punched ballots or counts ambiguous ballots based on the canvassing board’s subjective interpretation of a voter’s intent, it has the effect of unconstitutionally diluting the votes of the other voters both in the affected counties and in the counties not subject to recount.” Continues the complaint, “Because the recount begun or about to begin by the defendants is limited to portions of only four counties, the voter plaintiffs who are not residents or voters in those four counties are being deprived of the rights accorded to voters by those counties and/or will have their votes diluted in violation of the 14th Amendment.”

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