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Lawyers for the Bush campaign and Republican voters are clear about what they want: a halt to manual recounting of Florida ballots and invalidation of any vote totals that include hand-counted ballots. “ “Eight days after Florida’s presidential vote, the entire nation is witnessing the disintegration of a process that was designed to elect America’s president,” wrote attorneys for the Republicans in Appeals Court briefs. “The Florida manual recounts process is being used to eliminate any possibility of an orderly, rational, and final end to the election.” Briefs were filed by two GOP groups with lawsuits on appeal before the 11th Circuit: one by the Bush campaign, and another by GOP voters who claim that the manual recounts violate their constitutional rights. In its appeal, the Bush campaign describes the manual recount process as “unfair, standardless, rife with the potential for abuse and mischief, and highly suspicious.” Those recounts — which have been made under standards that often shifted from day to day and even hour to hour — “cry out for judicial review,” the Republicans argue. Florida’s election laws establish “no standards whatsoever to guide or constrain the [county election] canvassing boards in determining when or how to count a particular ballot,” the brief states. ‘ELASTIC PROCESS’ The brief continues, “The next president may be determined, not by the votes counted and recounted by neutral, tested equipment made for the express purpose of tabulating and recounting ballots, but by an ephemeral, elusive, and infinitely elastic process that allows officials to change, and change again, without reference to established law, in the course of the process itself.” The recounts, so far, have been limited to four of Florida’s most populous, predominantly Democratic counties. Those counties, where Vice President Al Gore garnered an average of 60 percent or more of the popular vote, were selected for hand recounts by the Gore campaign within 72 hours of the Nov. 7 election. The Bush brief raises several key constitutional issues, among them: � Denial of equal protection. Voters outside those counties where hand-counts are in progress are suffering “intentional discrimination” by virtue of their geographic residence and a dilution of their votes by those counties where ballots are not only being counted by hand but are being “interpreted” by possibly partisan officials. � Denial of due process. The lack of any uniform standard in determining what constitutes a valid ballot has allowed officials in each contested county to make arbitrary decisions “about such matters as whether to count a vote because a ray of light shines through a hole or because only one, rather than two, corners of a chad [the paper tab that is punched out of a ballot to mark a vote] remains attached to a ballot.” � Denial of the First Amendment rights of free expression to voters whose ballots, or intentions, are subsequently “interpreted” by a county canvassing board. In addition, the “unbridled discretion” of county canvassers to determine whether their respective counties initiate manual recounts also gives government officials an ability to use selective recounts that “effectively lift some voices above others.” “This election,” Republicans claim, “is utterly lacking in meaningful standard.” COURT FINDING CHALLENGED Republicans also claim that U.S. District Court Judge Donald M. Middlebrooks of Florida’s Southern District in Miami was wrong when he determined that, while the Bush campaign had raised “serious arguments regarding the constitutionality of the hand-counts,” Florida state law had “adequate self-correcting mechanisms” that made intervention by the federal courts unnecessary. That conclusion, Republican attorneys argue, “is wholly unjustified in the context of a Presidential election in which those very remedial avenues are being abused and manipulated to sink the Florida election into an unrecognizable, unmanageable and unending morass of litigation.” And they vehemently disagree with Florida’s Democratic Party, which intervened Wednesday, that the federal courts have no right to interfere in a state election and should hold themselves aloof from the presidential fray. In fact, the federal courts have an obligation to intervene if Florida’s election law violates the U.S. Constitution, Republican lawyers hold. The manual recounts “are not the kind of run-of-the mill and isolated election irregularities that previously have been held not to rise to the level of constitutional error — such as inadvertently malfunctioning voting machines. … or a single mistaken use of confusing ballots,” the brief states. Rather, the counts being conducted by county canvassing boards at the insistence of the Florida Democratic Party “threaten to introduce systemic arbitrariness and unequal treatment into Florida’s electoral scheme for choosing presidential electors … . It is difficult to imagine a legal question of greater national significance.”

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