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The federal appeals courts are not likely to be any more hospitable to Gov. George W. Bush’s attempts to stop Florida’s manual recount of presidential votes than a trial judge was on Monday. “I don’t believe intervention by a federal district court is appropriate,” said Judge Donald Middlebrooks of the U.S. District Court for the Southern District of Florida. A veritable village of attorneys — seven lawyers on the Republican side, and more than 23 attorneys on the other side representing Florida voters, four Florida counties, the state of Florida, the Florida Democratic Party, and local county officials — descended on Miami’s historic central courtroom. During a nearly three-hour hearing, the judge delved into the complexities and minutiae of voting recounts, asking pointed questions about the accuracy of various machines and recount techniques before concluding that a federal court had no jurisdiction to halt the manual recounts. “I’m not under any illusions that I am the final word on any of this,” Middlebrooks said. “I take great comfort from that.” Indeed, Bush lawyers hinted Monday they would ask the Atlanta-based 11th U.S. Circuit Court of Appeals to review the matter-a move that had not yet been taken. If the Bush campaign appeals, the 11th Circuit will be asked for the second time this year to referee a chaotic Florida legal battle with national implications. In June, a three-judge panel ruled against Miami relatives of Elian Gonzalez, clearing the way for the child to go back to Cuba with his father. In the Gonzalez case, the 11th Circuit displayed a conservative, hands-off approach to second-guessing political decisions. That same philosophy may very well foretell tough going for Republicans trying to stop the Florida recount. Case law from the 11th Circuit — which covers Florida, Alabama, and Georgia –shows the court’s reluctance to get involved in state elections, even when civil rights violations are at stake. But the Republicans point out that the 11th Circuit does not have a blanket rule against federal intervention. In a 1995 case out of Alabama, the 11th Circuit weighed a state’s right to run its own elections against voters’ claims that the state’s process was unfair. The case stemmed from a close election for the chief justice seat on the Alabama Supreme Court. The Republican candidate, Perry Hooper, appeared to have defeated the sitting chief justice, a Democrat, by a margin of 200 to 300 votes. But another 1,000 to 2,000 absentee ballots were left to be counted, and trends showed that Democrats typically benefitted from absentee votes. Republicans argued that many of the absentee ballots had not been notarized or witnessed by two people, a violation of state law. Nevertheless, a state judge ordered the secretary of state to count the ballots anyway, saying they substantially complied with the state law. The Republicans then filed a civil rights suit in federal court and won a temporary restraining order preventing the state from counting the absentee ballots. The state appealed and the 11th Circuit, while saying it was reluctant to get involved, did so anyway. After a few rounds of back-and-forth litigation with the Alabama Supreme Court, the 11th Circuit upheld the federal district judge’s decision to void the questionable absentee ballots. Hooper, the Republican candidate, was deemed the winner after the absentee ballots were tossed. The 11th Circuit’s struggle with federal intervention was on display in an early round of the case, Roe v. Alabama, when a panel voted 2-1 to uphold the temporary restraining order. In dissent, Judge J.L. Edmondson wrote: “Federal courts are not the bosses in state election disputes unless extraordinary circumstances affecting the integrity of the state’s election process are clearly present in a high degree. This well-settled principle — that federal courts interfere in state elections as a last resort — is basic to federalism, and we should take it to heart.” Bert Jordan, the Birmingham lawyer who won Roe for the Republicans, recalls that the 11th Circuit focused on how counting the un-notarized absentee votes created a procedural problem in Alabama. Likewise, Jordan notes, the Bush team has emphasized the procedural problems with hand recounts in Florida, a tactic he believes could get the attention of the 11th Circuit. Monday in Miami, Republicans and Democrats tangled over the issue of whether the manual recount was unconstitutional. Alan Dershowitz, a Harvard law professor representing a group of Palm Beach County voters seeking a recount, at one point belittled the arguments of a Bush lawyer, saying that as every law student learns, differing treatment doesn’t always violate the constitution. But Bush’s lawyer, Theodore Olson, stuck to his argument. “The process is selective, standardless, subjective, unreliable, and inevitably biased,” said Olson, a partner in the D.C. office of Gibson, Dunn & Crutcher. Meanwhile, legal experts are predicting that one or more aspects of the Florida recount dispute will reach the U.S. Supreme Court before week’s end. “All roads lead to the Supreme Court on this one,” says American University Law Professor Jamin Raskin, an election law expert. In addition to the Bush campaign’s challenge to the hand recount, Raskin predicts that Democrats will challenge the Florida secretary of state’s decision to stick to today’s deadline for the certification of ballots. Both could get to the Supreme Court rapidly. But what the Supreme Court will do with the cases is far less clear. The current Court’s views on federalism could lead it to keep hands off. In a 1993 decision in Growe v. Emison, the Court said federal courts should defer to state courts in disputes over reapportionment, another election-related area of law. But in a more recent ruling, the Supreme Court struck down a state election procedure that the Court found interfered with the federal law that established the date for the election of members of Congress. In that ruling Foster v. Love, Justice David Souter wrote for the majority, “The Elections Clause of the Constitution invests the States with responsibility for the mechanics of congressional elections … but grants Congress the power to override state regulations by establishing uniform rules for federal elections.” The 11th Circuit could essentially “force the hand of the justices,” said Drake University Law Professor Thomas Baker. “If the 11th Circuit were to reverse the District Court,” Baker said, “that fact alone would make a Supreme Court grant almost predictable.” This article was reported by Jonathan Ringel and Tony Mauro in Washington, D.C., and by Deirdre Davidson in Miami.

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