Judges deny Bush's attempt to exclude hand recounts

By Kristen Wyatt, Associated Press, 12/7/2000

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

The authors this time were eight of the 12 judges on the 11th US Circuit Court of Appeals, and they turned down George W. Bush's request to toss out hand recounts that had been sanctioned by the Florida Supreme Court and certified by election officials.

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

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 US Supreme Court before it, left itself the room to overturn past or future rulings by Florida courts.

The judges rejected claims by Florida election officials who had argued that 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 US Supreme Court followed a similar path Monday when it vacated a Florida Supreme Court ruling permitting the hand recounts. Rather than overturn the case, the justices asked the Florida court to clarify its rationale.

The ruling yesterday referred to a Florida district court's rejection of a Bush request to stop the 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 judges appointed by Democrats and three judges named by Republicans. 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,'' said a Gore spokesman, Doug Hattaway.

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

''We believe that there is an injury to a voter when his or her vote is diminished, and that requires a court to act,'' Bopp said.

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.