Appeals Court To Hear Bush Case

Wednesday, November 15th 2000, 12:00 am

By: News On 6

TALLAHASSEE, Fla. (AP) â€” A federal appeals court in Atlanta agreed Wednesday to consider arguments on George W. Bush's attempt to shut down Democrat-prompted manual recounts in Florida's contested presidential election.

The court issued its announcement at the same time Bush and presidential rival Al Gore were urging the Florida Supreme Court to rule on the legality of the disputed recounting in heavily Democratic counties.

There was no immediate word on when either court might hear the arguments as the dispute headed down an unpredictable two-pronged path â€” one or both of them possibly leading to the U.S. Supreme Court in Washington.

The developments came on a day when former Secretary of State James A. Baker III, representing Bush, said Democrats or their supporters had filed a dozen election-related lawsuits, and the GOP only one.

The litigation is so run amok now,'' Baker said, that his Democratic counterpart, Warren Christopher, refused earlier in the day to commit to accepting any ruling by a state court as final.

Bush holds a 300-vote lead in the state that stands to pick the next president, though the final tally hinges on an unknown number of overseas absentee ballots as well as the disputed recounts.

The federal case arises from Bush's attempt to shut down the manual recounts in selected counties. He lost in court in Miami earlier in the week.

All 12 judges in the circuit said they would consider arguments. They also decided to consider a separate but related case, this one filed by three voters who claim their rights are being violated because their counties are not recanvassing votes by hand.

The 11th Circuit issued a one-sentence order based on Bush's notice of intent to appeal.

Clerk Rob Phelps said only about half of the cases go to oral arguments so it's possible the judges could rule on the basis of written briefs alone.

The court set a 7 a.m. EST Thursday deadline for written arguments in the case of the voters who said they were being treated unfairly. No immediate deadline was set for Bush's case.

In the state courts, Bush and Gore both filed papers seeking to intervene in a lawsuit filed by Florida Secretary of State Katherine Harris â€” she is trying to block the manual recounts â€” and in a second lawsuit filed by Palm Beach County.

The procedural move is an attempt to make sure campaign lawyers are involved in any further court action.

Former Secretary of State Warren Christopher, speaking for Gore, said Democrats want the state Supreme Court to take jurisdiction over a burgeoning number of election-related lawsuits and resolve ``whether hand counts are appropriate under Florida law and if so what is the deadline for their completions.''

Christopher left open the possibility of further appeals beyond the state Supreme Court. ``We simply must, in order to protect the rights of the vice president in this matter, enable us to take steps that seem warranted,'' he said.

Gore and Florida Democrats also asked to join Palm Beach County's separate suit seeking court guidance to resolve conflicting recount opinions given by Republican and Democratic state officials.

Also Wednesday, Broward County followed Palm Beach's lead in suing for legal guidance. Both cases name both Harris and Florida's Democratic attorney general, Bob Butterworth.

The legal maneuvering continued as officials in Broward County reversed course and decided to grant the Gore campaign its request for a full recount by hand. They planned to start Wednesday. It was not clear when the recounts would begin in Broward and Palm Beach counties, which together account for about 1 million votes. Both are Democratic strongholds, and at midday Republicans sought an emergency injunction to block the hand count in Broward County.

David Boies, a lawyer recently added to Gore's legal team, set out the types of issues that Democrats would like to see addressed.

``What kind of manual recount? When do you terminate it? What are the standards? Can you have a manual recount in some counties and not in another?''

It was not clear whether by his comment he was suggesting Democrats might seek to expand manual recounts beyond the four counties where they have requested them. They include Volusia, where it has been finished; Broward and Palm Beach, and Miami-Dade where officials voted Tuesday night not to proceed.

Bush made a one-page filing in the Florida state Supreme Court, saying he is entitled to become part of Harris' case because ``initial vote tabulation and the statutory recount tabulation resulted in a majority of votes being cast for George W. Bush.''

A short time later, Florida's Democratic attorney general asked the state Supreme Court to combine the two suits and act quickly to resolve them.

``A consolidated resolution of these issues would provide finality,'' Attorney General Bob Butterworth said.

The Florida Supreme Court has seven members, all chosen by Democratic governors.

In yet another case, Circuit Court Judge Jorge Labarga scheduled a hearing for Friday on demands by some voters to hold a new election in Palm Beach County. The judge said he would consider the constitutionality of a ``revote,'' but he seemed doubtful. ``It seems to be like the only time you can have another election is in 2004,'' he said.

Earlier, he said the Palm Beach canvassing board could decide on individual ballots whether a ``dimple'' rather than full perforation constitutes a vote.

``No vote is to be declared invalid or void if there was a clear intention of the voter,'' Labarga said after a 90-minute hearing.

Early in the day, Harris asked the state's top court to delay any hand recounting of ballots and to consolidate lawsuits in the chaotic vote count that has left the presidential election hanging in the balance for more than a week.

Harris a day earlier gave all counties until 2 p.m. EST Wednesday to justify to her why they should be allowed to conduct further counting past a 5 p.m. Tuesday deadline.

After the deadline, the state said the returns showed Republican Gov. Bush ahead of Democrat Gore by 300 votes, an outcome hotly contested by Democratic lawyers. Still to be tallied are overseas ballots due by midnight Friday.

Harris also asked that the flurry of legal actions around the state be transferred to the local circuit court in Tallahassee, the state capital. She wants any new suits filed in the same court, too.

``Without question, this court must make it clear that the election of the president and vice president is not a matter of local pleasure,'' the petition said.

In other developments:

â€”Volusia County had completed a full manual recount. Volusia County has a challenge pending, nonetheless, of a state judge's ruling that said counties must abide by the 5 p.m. Tuesday deadline. Their case is expected to pass immediately from a midlevel state appeals court to the state Supreme Court. In the end, the matter could reach the U.S. Supreme Court.

â€”Miami-Dade's canvassing board voted 2-1 Tuesday night against a full manual count after a hand count of three precincts awarded Gore a net gain of six votes. Officials there sent Harris a letter asking her to include the new count.

â€”In Gadsden County west of Tallahassee, the canvassing board agreed to let both parties inspect disputed ballots. State Attorney Willie Meggs, the top prosecutor in the region and a Democrat, told The New York Times that the county shouldn't have recounted by hand more than 2,000 ballots that had been rejected by voting machines. The county's canvassing board â€” mostly Democratic but with a Republican chairman â€” recounted those ballots and Gore ended up with a gain of 170.

â€”Republicans in Palm Beach County said board member Carol Roberts poked and twisted ballots during a Saturday hand recount of four precincts and should step down. She said she had been ``fair and impartial'' and would not step aside.

In general, Democrats said a ruling by a state judge regarding the 5 p.m. Tuesday deadline gave them new legal options because Circuit Judge Terry Lewis said counties still recounting ballots by hand at the request of Gore campaign's may be able to make a case for filing those totals late.

If Harris rejects those requests, Democrats could sue.

``If the secretary of state arbitrarily refuses to accept the amended returns based on the recount and violates what this court has ruled ... then we will be back in court,'' said Boies.