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Court says no to Bush appeal on recounts

The 11th Circuit says the hand recounts already certified by the state should be part of the overall count.

©Associated Press

© St. Petersburg Times, published December 7, 2000

ATLANTA -- For the second time in three days, the federal judiciary crafted a narrow ruling that avoided trampling on Florida courts while reserving the right to settle the disputed presidential election in the future.

The authors this time were eight of the 12 judges on the 11th U.S. Circuit Court of Appeals, and they turned down George W. Bush's request to halt hand recounts already sanctioned by the Florida Supreme Court and certified by state election officials.

The judges ruled that Bush failed to prove he was imminently harmed by recounts completed last month that trimmed his lead in Florida's contested presidential race.

But the judges added, "The court does not at this time decide the merits of plaintiffs constitutional arguments."

In so doing, the appeals court, like the U.S. Supreme Court before it, left itself the room to overturn past or future rulings by Florida courts and determine a winner themselves.

The judges rejected claims by Florida election officials who argued the case was moot because the manual recounts were finished.

Al Gore and other Democrats are "currently contesting the election results in various lawsuits in numerous Florida state courts," they said in their ruling. "In view of the complex and ever-shifting circumstances of the case, we cannot say with any confidence that no live controversy is before us."

The U.S. Supreme Court followed a similar path Monday when they vacated a Florida Supreme Court ruling that permitted the hand recounts. Rather than overturn the case, the justices asked the Florida court to clarify its rational.

Wednesday's ruling referred to a Florida district court's rejection of a Bush request to stop last month's recounts after a short hearing with little evidence presented. The appellate judges said it would be wrong for a federal appeals court to use such a case to decide large issues such as the constitutionality of Florida election laws.

The ruling was signed by all five Democrat-appointed judges and three Republican-appointed judges. Four Republicans -- including three appointed by Bush's father, former President George Bush -- dissented.

Gore's campaign hailed the ruling, saying it cleared the way for Florida's Supreme Court to decide the election by counting additional ballots requested by the vice president.

"We're very pleased that the court rejected the Bush campaign's effort to throw out hand counts," Gore spokesman Doug Hattaway said.

James Bopp Jr., attorney for the James Madison Center for Free Speech, which represents Bush voters from Brevard County, said he would appeal to the U.S. Supreme Court.

The ruling said Bush and his supporters were "suffering no serious harm, let alone irreparable harm" because he was certified the winner of Florida's electoral votes.

"Moreover, even if manual recounts were to resume pursuant to a state court order, it is wholly speculative as to whether the results of those recounts may eventually place Vice President Gore ahead," the ruling said.

The dissenting judges said the recounts were unfair because they were only in selected counties and because there were no statewide standards for counting ballots.

"Even if the Republican Party or its candidate had requested manual recounts in every punch card county, the process would still have ended up treating some punch card voters differently based upon the counties in which they lived. The Constitution forbids that," Judge Ed Carnes wrote in the dissent.

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