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One day after the U.S. Supreme Court told Florida’s highest court to rethink its decision extending the deadline for hand-counted presidential ballots, the 11th Circuit Court of Appeals in Atlanta will hear arguments on a related — but much broader — issue. Arguments are scheduled for 9 a.m. today in two separate, but similar, election cases, each challenging the constitutionality of Florida’s hand-counting of ballots. The court will sit en banc and will permit lawyers an hour for each argument — twice the normal time allotted. One appeal, Siegel v. LePore, No. 00-15981 (11th Cir. Nov. 15, 2000), was filed by the Bush campaign and several Palm Beach County voters. The other, Touchston v. McDermott, No. 00-15985 (11th Cir. Nov. 14, 2000), was brought by Republican voters in Florida’s Brevard County with the help of several conservative public interest law groups. The central difference between the two suits is this: The Brevard County case asks the court to find Florida’s election law permitting hand counts unconstitutional. The Bush suit only questions the constitutionality of the hand count in the current presidential balloting. Both appeals claim that the Florida hand counts deny equal protection under federal voting laws to voters who live outside counties where the manual counts were conducted. They say the process gives additional weight to hand-counted ballots and subjects them to interpretation by possibly partisan election officials and dilutes the votes that were tabulated by machine elsewhere in Florida. The suits complain that Florida law sets no standard for when or how manual counts should be conducted. Bush campaign lawyers in Siegel have argued in their brief that the manual recount process is “unfair, standardless, rife with the potential for abuse and mischief, and highly suspicious.” After the Nov. 7 election, Vice President Al Gore asked for recounts in four populous and predominately Democratic Florida counties. In a Nov. 17 order, the Court of Appeals denied emergency motions filed by the Bush campaign and the Brevard voters for an injunction to halt the hand-counting and invalidate any vote totals that included hand-counted ballots. But the court denied that motion, although it did so without prejudice, leaving both appellants free to ask for an injunction again. The en banc order said that while states have the primary authority to resolve most election controversies, federal courts “may act to preserve and decide claims of violations of the Constitution of the United States in certain circumstances, especially where a state remedy is inadequate.” As attorneys prepared for today’s oral arguments, the Court of Appeals granted the state of Florida’s motion to intervene in an order issued Friday. And, in a supplemental brief filed Monday, lawyers for Florida’s Democratic Party (FDP), an intervenor in the appeals, argued that the parties in the Brevard case, Touchston, should be realigned. Specifically, they want Florida Secretary of State Katherine Harris, who is listed as a defendant/appellee in the suit because of her official position, to be made a plaintiff/appellant. Harris, they claim, has consistently taken legal stances that show her interests are more aligned with the plaintiffs — Republican voters — than with the other defendants. Harris, active in Bush’s Florida campaign, has “maintained positions hostile to the interests of FDP throughout the course of each and every lawsuit relating to the outcome of the election,” the brief says.

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