ASHINGTON - George W. Bush's next stop in his legal effort to halt a recount of votes in several Florida counties is a conservative US appeals court in Atlanta that is likely to be reluctant to impose federal authority over local control.
In addition, the Bush campaign appears to be on a track that may lead its case to the US Supreme Court, where Justices Antonin Scalia and Clarence Thomas, whom Bush has called his high-court role model, have been in the majority in 5-4 decisions upholding states' rights.
''The irony of Bush bringing this action is not lost on anybody,'' said Lois Williams, a senior counsel for the Washington Lawyers Committee for Civil Rights. ''Conservative ideology against expanding the federal government and Republican presidential politics are really at war.''
Yesterday, the 11th Circuit Court of Appeals agreed to consider Bush's request for a federal injunction to block the hand recounting of ballots in Florida counties. The Bush campaign appealed to the 12-member Atlanta court after a US District Court judge, Donald Middlebrooks, refused the request, ruling Monday in Miami that a state court would have more proper jurisdiction.
Legal experts said the decision to carry the federal case forward means the Bush campaign is willing to take its fight for Florida's 25 electoral votes and the presidency to the US Supreme Court. Bush's lawyers also could appeal to the federal high court a Florida Supreme Court ruling yesterday that allowed a continuation of the hand recounting of votes in some Florida counties.
If the federal circuit court rules in Bush's favor, Al Gore could appeal the decision to the US Supreme Court. It was not known last night when the case would be taken up in Atlanta. But because briefs are due early this morning, and because all 12 judges had agreed to participate in the case, it was clearly being given unusual priority.
What is not so clear is whether the US Supreme Court would agree to hear an appeal on the vote-counting case. Typically, the high court steers away from cases that are highly political, and historically it has honored the federalist principle that states, not the US government, have the authority to run elections, including setting the rules for who can vote and how ballots should be cast and tabulated.
''The Supreme Court lately has been very reluctant to get involved in states' rights issues, and this one is so political, it would be a difficult case for them,'' said Carol Laham, an election-law specialist in the Washington firm of Wiley, Rein & Fielding. ''But that doesn't mean it won't happen. Nothing in the the last eight days has gone according to script.''
Bush's argument was set out in his brief to the district court and articulated yesterday by the leader of his postelection effort in Florida, former secretary of state James A. Baker III. The position is that hand recounts are subject to error and ''give rise to mischief-making.'' In addition, Bush's lawyers maintain, selective hand recounts that turn up more votes for one candidate or the other dilute the votes cast in counties where recounts were not conducted.
''It seems pretty likely that Bush's lawyers will raise the right to vote, equal protection, and due process arguments in federal court,'' said Susan Low Bloch, a professor at the Georgetown University Law Center. ''I don't think it is a winning argument, but it fairly can be raised.''
Federal courts, including the appellate court in Atlanta, have not ducked voting rights cases. But normally the cases have involved charges of egregious disenfranchisement, such as discrimination against African-Americans, individuals who could not read, or people who could not afford to pay a poll tax.
Suzanna Sherry, a professor of law at Vanderbilt University, said the Bush campaign appeared to be ready to risk two setbacks: One, that voters would interpret the appeals as putting the election in the hands of the courts; the other, that Bush could lose in both the circuit and the supreme courts.
''Bush is taking the chance that the Supreme Court will halt the recounts, and that could decide the election for him,'' Sherry said. ''The problem is that what he wants is inconsistent with what the Supreme Court has been saying about states' rights.''
Middlebrooks said as much in his opinion Monday. ''Simply put,'' he 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.''
Court watchers say the Atlanta appeals court is conservative. It is weighted with judges appointed by either President Reagan or President Bush, who wanted a federal bench that took a literal reading of the Constitution and believed in limited government.
Conservatives outnumber liberals on the US Supreme Court, too, and most of the justices were appointed by Republican presidents. Still, independent-mindedness is the hallmark of the high court, and there are no guarantees that it would show any political preference if it entered the presidential-election fray.
''The makeup of the court does not mean it will side with Bush,'' Sherry said, noting that President Nixon, in the Watergate tapes case, and President Clinton, in the Paula Jones case, got no relief from their court appointees.
''Either candidate is making a mistake if they are counting on the Supreme Court to act in a partisan manner,'' Sherry said.
