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If you thought the 11th U.S. Circuit Court of Appeals in Atlanta had bowed out of the election legal morass, think again. A Court of Appeals order, issued late Friday, has left the judges with considerable maneuvering room to intervene, should the Florida Supreme Court fail to resolve questions surrounding the embattled presidential ballots. In its order, the Appeals Court also recognized that ultimate review by the U.S. Supreme Court remains a possibility. Last week, attorneys for five Brevard County, Fla., voters who cast their ballots for George W. Bush filed an emergency motion with the 11th Circuit asking the court to either halt the manual ballot recounts in Florida or forbid Florida officials from certifying any election results that contained manual recounts. On Friday afternoon, the Florida Supreme Court did exactly what the 11th Circuit had been asked to do when it postponed certification of the presidential election in Florida until after it had a chance to consider the issue. Perhaps as a result, two hours after the Florida Supreme Court issued its order, the 11th Circuit released its own order denying an emergency motion for an injunction by Republican voters. But according to the order, the 11th Circuit addressed only the question of an emergency injunction after conferring en banc “on several occasions.” It also denied the injunction “without prejudice,” leaving the judges free to resurrect it if they wish. In addition, two nearly identical appeals — one from Bush voters and one from the Bush campaign — remain alive. The Appeals Court acknowledged that the U.S. Constitution and federal law governing the appointment of presidential electors “indicate” that states have the primary authority to determine how presidential electors are selected and have the authority to resolve “most” controversies concerning the electors’ appointment. But the court left the door open for intervention, stating, “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,” according to the en banc order. The 11th Circuit judges seem to indicate they had received reassurances that the Florida Supreme Court will address the issue. The judges stated in their order, “It has been represented to us that the state courts will address and resolve any necessary federal constitutional issues presented to them, including the issues raised by plaintiffs in this case … . If so, then state procedures are not in any way inadequate to preserve for ultimate review in the United States Supreme Court any federal questions arising out of such orders. Thus, at this time, we need not address the likelihood of success on the merits; nor do we address now the merits of the underlying appeal.” A ruling by the Florida State Supreme Court was still pending at press time Tuesday. Meanwhile, attorneys for the Bush campaign on Monday filed an emergency motion for an expedited briefing schedule asking that all briefs be submitted by noon today. Bush attorneys are also asking the 11th Circuit to schedule oral arguments next week. According to their brief, attorneys defending Dade, Broward and Volusia counties, and the Florida State Attorney General’s office have already agreed to an expedited schedule. “The significant possibility that the issues in this case may have to be brought to the Supreme Court of the United States make immediate handling and resolution of this case by this Court essential,” Bush campaign attorneys wrote. Attorneys from the James Madison Center for Free Speech in Washington, D.C., and the Liberty Counsel in Florida have also asked the 11th Circuit to consolidate their appeal on behalf of Republican voters with that of the Bush campaign. That appeal asked that none of the manual recounts, including those already submitted to the Florida Secretary of State, be included in the state’s certified election totals. On Monday, Bush attorneys objected, saying in their brief that they feared consolidation would delay a hearing in the case. In a formal notification filed Monday, Madison Center lawyers stated their belief that the 11th Circuit “must expeditiously resolve the merits of this case,” and outlined a possible scenario that could require 11th Circuit intervention. If the Florida Supreme Court reverses a circuit court judge’s decision upholding Florida Secretary of State Katherine Harris’s right to reject amended results from manual vote recounts, and Harris must accept those new vote totals, “Vice President Gore will win on the basis of the results of the manual recounts,” the notification unequivocally states. “Thus, the manual recount votes will be determinative of the election result.” Meanwhile, Alabama Attorney General Bill Pryor filed a “friend of the court” brief Monday on behalf of the Republicans. Pryor submitted the brief because of what he described as striking similarities between the two pending Florida appeals and an Alabama case, Roe v. Alabama, in which the 11th Circuit intervened five years ago. That case involved the counting of absentee ballots in the 1994 election for Chief Justice of Alabama’s Supreme Court. “That case resulted in a series of three decisions from this Court regarding the fundamental unfairness of the changing ballot-counting procedures after an election has occurred,” the amici brief states. Pryor personally represented Alabama, the state attorney general and the secretary of state during that litigation. Alabama election laws have relied on Roe v. Alabama when enforcing the state’s election laws, according to the brief. “It is difficult to see how the order of the district court [in Florida] in this case can be affirmed without overruling or fundamentally altering Roe v. Alabama. Having relied on the decisions in Roe v. Alabama for several years, amici have a profound interest in seeing those decisions upheld and consistently applied … . The order of the district court denying [the Republicans'] motion for temporary restraining order and preliminary injunction must be reversed because the district court failed to follow Roe v. Alabama.”

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