Eleventh Circuit denies Bush appeals to exclude hand recounts

Wednesday, December 6th 2000, 12:00 am

By: News On 6

ATLANTA â€“ A federal appeals court refused today to throw out manual recounts of ballots completed in three Florida counties, rejecting an appeal filed by George W. Bush at the height of the recount controversy in the state's contested election.

The 11 U.S. Circuit Court of Appeals agreed with a district court ruling which held that Bush, as well as supporters in a second lawsuit, failed to prove they had been irreparably injured.

Bush had sought a court order to stop the recounts, which were completed last month, trimming his certified victory margin over Democrat Al Gore from 930 votes to 537 out of 6 million cast in Florida.

The judges said Bush was "suffering no serious harm, let alone irreparable harm" because he was certified the winner of Florida's electoral votes "notwithstanding the inclusion of manually recounted ballots. 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 judges emphasized that they had not ruled on the constitutional merits of Bush's argument and simply denied his request for an order stopping the recounts.

The rulings in the Bush and GOP appeals were not unanimous among the 12 judges, with four dissenters â€“ all appointed by Republicans â€“ to each of the two cases. Three Republican appointees agreed with the rulings.

Gore's campaign hailed the ruling allowing the earlier recounts, 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.

There was no immediate Bush camp response.

James Bopp Jr., attorney for the James Madison Center for Free Speech, which represents Bush voters from Brevard County, Fla., said the judges should not assume that Bush voters were not injured.

"We believe that there is an injury to a voter when his or her vote is diminished, and that requires a court to act," said Bopp, adding that he would appeal to the U.S. Supreme Court.

In their dissents Judges Gerald Bard Tjoflat, Ed Carnes, Joel A. Dubina and Stanley F. Birch Jr. argued that the recounts were unfair because they were only in selected counties and because there were no consistent standards in 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," Carnes wrote in the dissent.

Carnes, Dubina and Birch were all appointed to the Appeals Court by Bush's father, former President Bush.

The dissenters also criticized the Florida Supreme Court's decision to extend the deadline for certifying votes.

"By changing the 'rules of the game' after it was played, the supreme court debased the votes of thousands of Florida voters and denied them the equal protection of the laws guaranteed by the Fourteenth Amendment."

Tjoflat wrote a separate dissent criticizing the lack of standards in the Florida manual recount statute.

He said other states have clear standards regarding how to conduct manual recounts of punch-card ballots. "Absent similar clear and certain standards, Florida's manual recount scheme cannot pass constitutional muster."