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Republican voters in Florida’s Brevard County have, independently of George W. Bush’s presidential campaign, filed an emergency motion for an injunction in Atlanta’s 11th U.S. Circuit Court of Appeals to halt hand recounts of Florida’s presidential ballots and exclude all hand-counted ballots from the state’s certified vote totals. The voters are represented by two conservative public-interest law groups. In a separate action, Bush and vice presidential candidate Dick Cheney, together with Palm Beach County voters, have filed notice with the 11th Circuit that they intend to appeal another Florida federal judge’s order that refused to stop ongoing hand counts in four of Florida’s most populated counties. That order was handed down Monday by U.S. District Court Judge Donald M. Middlebrooks of Florida’s Southern District. The appeals court on Wednesday afternoon announced that the entire court, instead of the usual three-judge panel, will hear arguments in both cases. No hearing times had been set by Wednesday afternoon. Late Wednesday, the Democratic Party of Florida filed a motion to intervene in the Brevard case. The 11th Circuit had given the attorneys for the four county canvassing boards named in the Southern District appeal until 7 a.m. today to respond to the emergency motion, according to Heidi Meyer, an attorney with Bopp, Coleson & Bostrom in Terre Haute, Ind. Name partner James Bopp is general counsel for the James Madison Center for Free Speech in Washington, a public interest legal defense fund representing the Brevard County Bush voters. The center has financed challenges to election laws, and Bopp also has represented other groups, including the National Right to Life Committee. Along with the Madison Center, voters in the suit are represented by the Liberty Counsel, an Orlando, Fla., group that describes itself on its Web site as a “nonprofit religious civil liberties education and legal defense” organization. On Wednesday afternoon, counsel for the Florida Democratic Party — among them Atlanta’s Teresa Wynn Roseborough of Sutherland Asbill & Brennan and Miami’s Kendall Coffey, who represented Elian Gonzalez’ Miami relatives — filed a motion to intervene in the Brevard County voters’ suit. It already has entered as an intervenor into the case filed by the Bush campaign. David I. Adelman, another Sutherland Asbill partner, is also working with the Democratic Party in the litigation, according to the firm’s managing partner, James L. Henderson III. EMERGENCY MOTION On Wednesday morning, Brevard County voters Robert C. Touchston, Deborah Shepperd and Diana L. Touchton — all of whom had cast their ballots for Bush — filed an emergency motion asking the appeals court for an injunction barring Florida officials from including any hand-counted ballots in certified presidential vote totals. They also asked to expedite the appeal, Touchston v. McDermott, et al., No. 00-15985 (11th Cir., Nov. 15, 2000). Voters in Brevard County, according to the emergency appeal, “are predominantly registered in the Republican Party and voted overwhelmingly for Gov. Bush in the 2000 general election. Any manual recount in Brevard County could be expected to produce a greater number of additional votes cast for Governor Bush than for Vice President [Al] Gore.” The Bush voters — represented by attorneys from the James Madison Center and the Liberty Counsel — filed the emergency motion after U.S. District Judge John Antoon II of Florida’s Middle District in Orlando refused on Tuesday afternoon to issue a temporary restraining order to stop hand counts of presidential ballots in Volusia, Palm Beach, Broward and Miami-Dade counties. The Touchstons and Shepperd moved for a temporary restraining order in U.S. District Court in Florida’s Middle District just hours after a similar request by the Bush campaign was turned down by Middlebrooks in Florida’s Southern District. They lost. Antoon’s order says that federal courts should not intervene in local, individualized election processes. Federal courts, he wrote, may intervene only in statewide, systemic denials of equal voting rights. FOUR-HOUR HEARING Tuesday’s TRO hearing lasted four hours and was “fairly cordial,” according to Mathew Staver, attorney with the Liberty Counsel. He compared the hearing to sitting in the CNN newsroom, because an attorney for one of the four involved Florida counties stayed on his cell phone most of the time, relaying news updates on actions to stop recounts in other parts of the state that could have mooted the case before Antoon. Antoon issued his order at about 6 p.m. on Tuesday, Staver says, and he and co-counsel Bopp hand-delivered their notice of emergency appeal just minutes later. Staver differentiates the Touchston case from the case involving Bush, Cheney and the Palm Beach County voters. The Bush case, he says, contends that manual recounts are inherently inaccurate. The Touchston suit, by contrast, challenges the Florida recount because of what it claims is the state’s inconsistent methodology, both of selecting counties for recounts and in manually counting votes. In their emergency motion, his clients, the Brevard County Bush voters, claim that hand counts elsewhere in Florida illegally dilute their votes “by allowing partisan political candidates in statewide elections to selectively seek a manual recount only in heavily populated counties where the machine-tabulated vote favored the [Democratic] candidate.” The appeal motion states, “The Vice President has sought to have a manual recount in only four of Florida’s 67 counties.” But in those counties, the motion claims, the presidential ballots were not so evenly divided that a recount was required to discern the winner. Instead, the counties in which Gore demanded a hand recount “are all among the most densely populated counties in Florida and in each one of them he received a significantly higher proportion of the vote than did his principle opponent, Governor Bush. While the machine count and automatic machine recount revealed that the statewide vote was split nearly evenly between the two, the unofficial results from the second recounts in the four counties selected by Mr. Gore reveal that in those counties Mr. Gore received approximately 61 out of every 100 votes cast,” the motion claims. In counties that the vice president won overwhelmingly, the Gore campaign has asked for hand recounts “based not upon a failure of the voting tabulation system to accurately count votes, but rather on a desire to mine votes,” the motion states. In addition, the motion says, the alleged lack of consistent standards in deciding where manual recounts would be conducted and how to identify a valid ballot during a manual recount “results in different rules being applied, allows a subjective intent test, and allows ballots cast contrary to voting instructions to be counted, all of which result in a lack of due process.” As a result, voters in counties not selected for a manual recount were denied equal protection under federal voting laws and “will be irreparably harmed,” the motion states. Without uniform treatment of ballots across the state, a candidate can “dilute the votes in the rest of the state by, in effect, stuffing the statewide ballot box.” Voters throughout the state are subject to machine-tabulation errors, the motion claims. But voters in those counties outside the recount have no legal recourse under Florida law to demand a hand count in their own precincts. Furthermore, the motion claims that Florida’s county canvassing boards have absolute discretion as to whether to grant or deny a request for a manual recount. “This statutory framework places at the disposal of partisan political candidates the means to dilute and debase the votes of those voters who do not reside in the selected counties and who did not cast their ballots for the candidate requesting the recount,” it states. Florida law, according to the emergency motion, also “creates a two-tiered system that weights the votes cast in some parts of the state more heavily than votes cast in other parts of the state.” That violates the equal protection clause of the U.S. Constitution’s Fourteenth Amendment, the motion claims. ‘SUBJECTIVE’ TESTS The motion also accuses election canvassing boards in the four counties of using “vague, subjective, arbitrary and capricious tests” to determine a voter’s preference even though the voter failed to cast a ballot correctly by punching cleanly through the ballot. Staver says his clients want those laws declared unconstitutional. Among those tests adopted by at least one canvassing board was a “sunlight test” where, when a ballot was held up to the light, “if the sun came through the indentation it would be counted,” even if the hole was not punched out, the Bush voters claimed. But, their motion argues that such incompleted ballots could be interpreted two ways — that “the voter was so frail and/or clumsy that he was not able to punch through the ballot, even though the voter intended to do so, or 2) the voter had second thoughts and reconsidered his vote … with the result that the voter never intended to vote for the candidate at all.” Antoon rejected similar arguments that attorneys for the Brevard County voters made in his courtroom during a four-hour hearing Tuesday afternoon, noting they were virtually identical to those made by the Bush campaign in front of Middlebrooks a day earlier. “In that case, Judge Middlebrooks entered an order that this Court considers well-reasoned and comprehensive,” Antoon wrote. He also wrote that of all the issues in the presidential election, his court was concerned with only the question of whether federal courts should intervene in this type of case. His conclusion: They shouldn’t. Citing a 1986 11th Circuit opinion, Curry vs. Baker, Antoon wrote that federal courts will not intervene to examine the validity of individual ballots or supervise the administrative details of a local election. Rather, federal courts are concerned with state laws and practices that create patterns of systemic denial of voting equality. Quoting Curry, he wrote, “But in the absence of ‘systematically discriminatory laws, isolated events that adversely affect individuals are not presumed to be [constitutional violations.]‘… . In summary, Plaintiffs have failed to set forth a valid basis for intervention by federal courts. They have not alleged that the Florida law is discriminatory, that citizens are being deprived of the right to vote, or that there has been fraudulent interference with the vote.” Staver says the order doesn’t mean that the plaintiffs now must show on appeal a systematic state pattern and practice of denial of voting equality. He casts the case as one about voter dilution, and says federal courts have intervened in such cases in the past.

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