-Caveat Lector-
11th Circuit Focuses on Lack of Uniform Standards in Recount Process
law.com
R. Robin McDonald and Richmond Eustis
Fulton County Daily Report December 6, 2000
The 11th U.S. Circuit Court of Appeals judges did Tuesday what
the U.S.Supreme Court shied away from doing: They tackled the
constitutionality of Florida's presidential hand counts.
The 11th Circuit ruling could put an end to the round robin of
Florida court claims and appeals, most of them centered on
hand-counted ballots. If the 11th Circuit rules that hand counts
are unconstitutional, it would supersede all rulings from Florida
courts, even the Florida State Supreme Court. The Democrats'
only recourse would be an appeal to the U.S. Supreme Court,
which so far has been reluctant to intervene in the Florida vote.
The 12 judges relentlessly questioned lawyers on two key issues
during a three-hour session of the court. The key issues:
whether a lack of uniform standards in recounting the ballots by
hand resulted in a violation of due process and whether hand
recounts gave too much weight to votes in the urban counties
where Democrats requested them.
Those questions are at the heart of two appeals by Republican
voters from two federal courts in Florida. The Bush campaign
united with sympathetic Florida voters in one appeal that
originally sought an injunction to halt hand recounts in Palm
Beach, Miami-Dade, Broward and Volusia counties and to exclude
them from certified tallies. Siegel v. LePore, No. 00-15981
(11th Cir. Dec. 5, 2000).
The second appeal, from Bush voters in Brevard County, Fla.,
sought to have the state law governing hand recounts declared
unconstitutional. Touchston v. McDermott, No. 00-15985 (11th
Cir. Dec. 5, 2000). James Bopp Jr. -- an attorney with the
James Madison Center for Free Speech, a conservative legal
foundation in Washington, D.C. -- represented those voters. In
an appeal independent of the Bush campaign, Bopp argued that the
Florida statute illegally allows a candidate to demand manual
recounts only in areas that might favor him.
A ruling for the Republicans could invalidate all of the hand
counts, whether for Bush or for Gore, across the state. Certified
totals would then revert to the original machine recounts that
gave Bush a slight edge in Florida.
The court appeared legitimately concerned about those
constitutional questions. But Judges Charles R. Wilson and
Rosemary Barkett also pressed attorneys for both the Republicans
and Florida's Democratic Party as to whether the federal courts
can legitimately intervene and whether the Nov. 14 certification
of Florida's presidential ballots made the questions moot.
The court could issue its opinion as early as today. "The Court
recognizes the importance of this case," said Chief Judge R.
Lanier Anderson III. "We also recognize the urgent time frame.
We have prepared ourselves with that in mind, not withstanding
the superb lawyering in this case."
The court's decision could be appealed to the U.S. Supreme
Court. Last week the Supreme Court declined to consider the
constitutionality of the hand counts until the 11th Circuit had
considered these cases.
Bush attorney Theodore B. Olson, of Gibson, Dunn & Crutcher in
Washington, had barely begun his oral arguments when Wilson
raised the first question. "Why isn't this case moot?"
A short time later, Barkett noted that Bush currently is
Florida's certified presidential winner. Why then, she asked,
should the federal courts intervene now. "There is no, at this
point, imminent harm," she said.
Nonetheless, most of the questions from the judges suggested that
they would have few qualms about stepping in to ensure that the
hand counts were constitutional and fair.
Judge Stanley F. Birch Jr. appeared to scoff at the notion that
the federal courts should remain aloof until after state remedies
had been exhausted. "Wouldn't the Constitution set a standard,
as it did during the civil rights era? Are you saying the U.S.
Constitution has no role in this sequence of events?" he asked
Florida Assistant Attorney General Charles Fahlbusch, who argued
on behalf of the state of Florida.
Noting that Fahlbusch wanted the court to abstain, Judge Stanley
Marcus said, "Our case law suggests that when the nature of the
controversy involves the right to vote, we will not abstain.
Why should we?"
The Florida county canvassing boards' apparent lack of standards
for discerning voter intent during the hand counts provoked sharp
questions from the court. "What is the first piece of evidence
you would examine to determine a voter's intent?" Judge Gerald B.
Tjoflat demanded of Fahlbusch. He then answered his own
question: "The instructions. You certainly would begin with
them, would you not?"
Those directions, posted at the Florida polls and on the voting
machines, instructed voters to punch cleanly through the ballot
and remove any hanging chads. But, Tjoflat said, "There's nothing
at all in Florida law that gives them [the county canvassing
boards] counseling to determine voter intent. What authority has
instructed the county canvassing boards what pieces of evidence
to look at to determine voter intent?"
In concert with Tjoflat, Birch challenged Democratic Party
attorney Teresa Wynn Roseborough, a partner with Atlanta's
Sutherland Asbill & Brennan, to list the standards that county
canvassing boards were to apply when determining voter intent
during the hand counts. "The essence of justice has to be that
everyone plays by the same rules. But where in that statutory
scheme does it tell Florida canvassing boards to divine the
intent of the voters? They don't set any standards, do they?"
Birch demanded.
But Judge Frank M. Hull echoed Roseborough's arguments that
canvassing boards do have standards. "The three-member county
canvassing board is actually a fact-finder," she said. "When you
charge a jury in a criminal case, you have to look at all the
evidence and determine the intent, and that's what the county
boards have done."
The court also expressed concern about whether Florida voters'
ballots are given equal weight, regardless of the county in which
they were cast.
In close elections where recounts may be necessary, what prevents
a state legislature from passing a law permitting recounts only
in a state's largest cities? Judge Edward E. Carnes asked.
"That wouldn't violate the right of the people to vote in
sparsely populated counties?" And how do such circumstances
differ from what the Democrats have been doing with the Florida
hand counts? he demanded of Roseborough.
"The fundamental unfairness" of counting some votes only by
machine while others were interpreted as they were counted by
hand clearly disturbed Carnes. When Roseborough insisted that
the state has absolute authority to determine how it conducts
elections, Carnes responded, "You can't do that in an
unconstitutional way."
The possible dilution of votes in counties where hand counts were
not conducted is one element of irreparable harm, said Bopp, who
argued for the Brevard County voters. But hand counts, in this
case, harmed Bush as well, he said, by forcing him to prove why
those votes should not be tallied.
Bopp, who fielded comparatively few questions from the panel,
said he doesn't object to all manual recounts. Instead, he
insisted the state must have a procedure for selecting the
counties to be recounted and a procedure for establishing the
intent of voters.
"The manual recount system in Florida has placed everlasting
doubt on who is the winner of this election," he said. "Either
side may forever say the outcome may have been affected by the
manual recount."
Notably silent throughout the three-hour session was Judge J.L.
Edmondson.
Edmondson wrote a strong dissent five years ago in Roe v.
Alabama in which he argued strenuously against federal
involvement in state election procedures. It was Edmondson's
dissent that U.S. District Judge Donald Middlebrooks in Florida
quoted when he refused to stop the Florida hand counts.
Roseborough ended her argument in Touchston by quoting another
passage from that same dissent, prompting a small smile from
Edmondson: "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."
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Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
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