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Two Florida counties and Florida’s Secretary of State raise differing arguments for why the 11th U.S. Circuit Court of Appeals should deny a petition to halt hand recounts of the Nov. 7 presidential ballots. In that petition, the plaintiffs, three Brevard County Republican voters represented by attorneys from the conservative James Madison Center for Free Speech in Washington, and the Liberty Counsel in Florida, claim the Florida election law that permits a candidate to request manual recounts in selected counties is unconstitutional. They say it dilutes their votes and allows a candidate to “mine” for votes, and want an injunction barring manual recounts. Volusia County, one of four counties named as defendants, contends that the issue is moot because its hand recount — which resulted in a net gain for Vice President Al Gore of 98 votes — has already been completed and certified by Florida Secretary of State Katherine Harris. Broward County, where a manual recount is under way, argues that the Florida election process is Florida’s concern and not a matter in which federal courts should intervene. Two other counties named as defendants, Palm Beach County and Miami-Dade County, didn’t file responses to the suit. Harris contends that the state’s laws are constitutional and should not permit a candidate to mine for votes. � Volusia’s argument is simple and succinct: The request to enjoin a manual recount there is moot. Volusia completed its recount and submitted it to the Secretary of State before the statutory Nov. 14 deadline. Harris accepted the results as official. No recount is in progress or planned. The petitioners’ arguments about subjective standards for counting punched ballots don’t apply to Volusia, because the county doesn’t use punched ballots. The federal courts should not intervene because voters have state remedies to contest an election if they believe illegal votes were cast or legal votes were rejected. Although Volusia County’s hand-counted vote tallies were included in its certified election results, the Brevard County Bush voters are also asking the 11th Circuit to strip from the county’s voting totals any hand-counted ballots. Volusia County’s brief did not address that question. � Broward County’s brief outlines a different situation than that of Volusia: Broward’s Canvassing Board first conducted a limited manual recount that gave Gore four additional votes. The board then voted Nov. 15 to proceed with a countywide recount, finding that previously untabulated ballots could affect the election outcome. The recount is under way. � The county argues that: The recount procedure is provided for under Florida law as a necessary precedent to appointing electors for the Electoral College. Two federal judges already have held that the petitioners’ claims are matters of state concern and that federal courts should not intervene. A 1972 U.S. Supreme Court decision, Roudebush v. Hartke, 405 U.S. 15, found that the availability of a recount was within the scope of broad powers delegated to the states by the U.S. Constitution. Only in extraordinary circumstances, such as a state law whose very design infringes on voting rights, does a challenge to a state election rise to the level of constitutional deprivation. The petitioners haven’t met the requirements necessary to obtain an injunction: a likelihood of success on the merits; a showing that they will suffer irreparable injury without an injunction; and a showing that their alleged injury outweighs the harm of granting an injunction. If some court eventually determines that a manual recount was improper, the results can simply be ignored. On the other hand, if the recount is stopped, Harris is likely to exercise her discretion not to certify the results, “and those votes may never be counted.” Harris had advised counties conducting manual recounts after the Nov. 14 statutory deadline to provide written statements justifying such recounts. In her brief, she now says she has advised county canvassing boards, including Broward’s, that no votes counted manually after the deadline will be certified. Like Broward County, Harris argues the petitioners haven’t made a sufficient showing that an injunction is warranted, even though early Wednesday she made a nearly identical request to the Florida State Supreme Court in an attempt to halt hand counts. The Supreme Court dismissed her emergency petition Wednesday. “The Secretary has imposed upon herself legal limitations regarding the circumstances under which she will permit manual counts to be taken. So long as these limitations are respected, no constitutional harm will be suffered.” But she raises additional arguments in opposition to an injunction: She has interpreted her discretion to consider late recounts as limited and not extending “to a selective recount for the purpose of favoring a particular candidate-as would be the case in this election” if the counties selected by Gore were permitted to conduct a recount after the deadline. Given that interpretation, Florida’s election statutes are constitutional and should not permit a candidate mining for votes.

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