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Two Georgia lawyers on opposite sides of the political fence predict that Gov. George W. Bush partisans will lose their case pending in the 11th U.S. Circuit Court of Appeals in Atlanta. Both assert that the federal courts have no business intervening in this election dispute. “I can’t imagine the court will do anything other than affirm,” says M. Laughlin McDonald of the Georgia Chapter of the American Civil Liberties Union. “Just on the merits, the arguments are poor.” L. Lynn Hogue, president and CEO of the Southeastern Legal Foundation, an Atlanta-based conservative public interest law firm, agrees. Bush’s case is “probably weak,” he says. McDonald says the federal court has no jurisdiction over “garden variety” election complaints — and this is one of them, despite its national implications. Hogue’s position is that election count issues should be resolved by procedures established by Florida. Hogue says the decision that Bush is appealing, issued by Judge Donald M. Middlebrooks in the U.S. District Court for the Southern District of Florida, is “a victory for our system of federalism, for the Electoral College, and for the integrity of state balloting and counting processes.” Bush probably was “goaded into” the appeal by his supporters, he says. McDonald, whose organization considers itself nonpartisan, authored an amicus brief, filed Tuesday, in a Florida state court action that claims that “voting irregularities” have usurped voters’ rights. The ACLU has weighed in on numerous voting rights cases. In 1986 the ACLU convinced a Georgia court to order a new election in a Sumter County school board election on the grounds that five voters received ballots for the wrong district. The Bush supporters’ motion for an emergency injunction argues, among other things, that no standards exist for setting out when to recognize a valid ballot during a manual recount. This allows those counting the ballots to make subjective decisions about voter intent, they argue. But McDonald says this argument is flawed. “They claim the standard for determining the will of the voter is too vague,” he says. “But you can’t get more precise,” he says. McDonald also points to another weakness in the Bush supporters’ motion. “They’ve got a real problem arguing that this is in fact the kind of challenge that ought to be in federal court,” he says. LITIGATION: GOOD OR BAD? McDonald suggests the parties will each make whatever legal maneuvers it takes to win the election for their candidate. “There is no question that these parties are driven by partisan concerns,” he says. Some commentators worry that all of the legal maneuvering undermines the legitimacy of the process, but McDonald doesn’t see a problem with that. “That’s the system we’ve got. It’s a lot better than civil revolt and coups for damned sure,” he says. “We have people lose, and fights are bitter and acrimonious, and friendships are destroyed — but ultimately we acquiesce to the will of the voters and that suggests that the system is quite sophisticated.” Hogue’s view is very different. “There is no chance that an election settled in the courts will be acceptable to the electorate, and the harm that it does to our system of government is incalculable,” he says. “The suggestion that courts are the right place to settle elections is the very antithesis of our scheme of government. Courts would be transformed from the ‘least dangerous’ branch of government into a mighty engine for subordinating the public will to that of a handful of unelected judges.”

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