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Most legal experts say it is unlikely the 11th U.S. Circuit Court of Appeals in Atlanta will enter the fray over Florida’s hand-counted presidential ballots. But if the court does decide to take on the issue, all the legal action in Florida’s state court would suddenly shift to the federal court, and probably, to the U.S. Supreme Court. “The federal courts are the arbiters of the Constitution, and their edicts overrule the state courts,” says M. Laughlin McDonald, an attorney with the Georgia Chapter of the American Civil Liberties Union. “The federal courts are the ultimate interpreters.” McDonald says chances of the appeals court’s intervention are remote. “It would create the kind of chaos which no court would willingly recreate. … You could have the same defendants being required to act in different ways by the state and federal courts. I think the U.S. Supreme Court would have an obligation to sort things out.” Nonetheless, the 11th Circuit’s 12 judges are preparing to hear two appeals en banc — one from George W. Bush’s campaign and a separate appeal from Brevard County, Fla., Bush voters who are represented by lawyers attached to two conservative public interest legal defense funds. Both appeals, which arrived at the 11th Circuit Wednesday, ask the court to issue a temporary restraining order to halt manual recounts of ballots in three Florida counties. The Brevard voters’ appeal, backed by the James Madison Center for Free Speech in Washington, and Florida’s Liberty Council, also asked the court to remand the case to Florida’s district courts with orders to prevent county canvassing boards from including in their certified presidential vote totals any ballots that were recounted by hand. By Thursday morning, Florida’s State Democratic Party had received permission to intervene in both appeals. Responses to the Brevard County voters’ appeal had been filed by two of the four Florida defendants — Volusia County, which completed its manual recount Tuesday, and Broward County, which is still recounting its ballots by hand. And Florida’s Secretary of State had filed a response objecting to federal court intervention. Two other counties, Palm Beach County and Miami-Dade County, missed a 7 a.m. deadline for responses. Defendants in the Bush appeal have until 7 a.m. today to file answers to that emergency motion. The appeals have also attracted the attention of other states. State attorneys general of Iowa, New Mexico, Oregon and Connecticut submitted a friend of the court brief on behalf of the Florida defendants.

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