Originally created 11/16/00

Atlanta judges to hear case



ATLANTA - The legal battle over the outcome of Florida's presidential voting slopped over into another state Wednesday as a federal appeals court in Georgia agreed to consider the issue in a rush hearing.

No date has been set for the unusual expedited hearing before all 12 members of the 11th U.S. Circuit Court of Appeals in Atlanta. The court announced Wednesday afternoon that it would hear two cases seeking to stop all manual recounts in Florida, giving everyone involved until 7 a.m. today to file briefs.

Lawyers for Texas Gov. George W. Bush and Vice President Al Gore will argue whether the federal courts should step in. Normally, state laws govern elections, and several Florida courts are weighing lawsuits from both sides.

Two cases are being appealed, one by Mr. Bush and the other filed by the Liberty Counsel and the James Madison Center for Free Speech on behalf of three Bush voters from Florida. Federal judges in Florida dismissed both cases earlier in the week.

The Republicans say the hand recount is unconstitutional because it doesn't include votes cast in every county, unjustly raising the votes of some people while not treating others' ballots the same.

"The Florida recount law is fundamentally unfair and violates federal constitutional guarantees of one person one vote and equal protection of the laws," said James Bopp, general counsel for the Madison Center. "Unless this is stopped now, we are going to have a constitutional crisis. We don't have one now, thank God. But we are going to have one."

Mr. Bopp, a veteran of more than 60 election court cases, said he is relying on an Alabama case in which the 11th Circuit judges prevented the recounting of absentee ballots because doing so would have diluted the impact of ballots not recounted.

The Florida Democratic Party already has filed a motion asking to intervene on behalf of the Florida elections officials being sued.

Democrats say Republican motives are evident.

"There is only one reason the Republicans are so opposed to hand counts of this vote," said David Worley, chairman of the Georgia Democratic Party. "That is that they expect that Al Gore will win."

Mr. Worley, an Atlanta labor lawyer who practices before the appeals court, said he expects Democrats to get a fair hearing even though slightly more of the court's judges were appointed by Republican presidents than Democrats. Other attorneys agree, describing the court as moderate.

"I don't think people on the court tend to vote because they are beholden to someone," said Donald Loft, head of litigation with the Atlanta law firm Morris Manning and Martin. "My experience, especially once you get to the federal level, is that these are very bright, hard-working, fair people."

Attorneys who have studied other cases in which the 11th Circuit has ruled on elections say most were about election fraud rather than the procedures for a recount.

"It's also true that federal courts are reluctant to intervene when there are ongoing state and administrative processes dealing with related questions," said Robert Schapiro, a constitutional-law professor at Emory University in Atlanta.

Most appeals are heard by a three-judge panel. Hearings with all members of the court present are rare, typically just two or three a year. Observers say they believe the court was willing to grant such a hearing in this instance to save time, because the next level of appeal from the three-judge panel is the full court.

After that, the U.S. Supreme Court is next for anyone unhappy with the ruling from the 12 judges. And officials from the Liberty Counsel in Orlando predict the appeals court could rule as soon as this afternoon.

The court is racing the clock, because federal law requires each state's election be finalized by Dec. 12, six days before the Electoral College meets to cast its ballots for president. If Florida's 25 electoral votes are awarded to Mr. Gore under questionable circumstances, the Republican-controlled U.S. House of Representatives could have grounds for throwing them out, Mr. Bopp warned.

Reach Walter C. Jones at (404) 589-8424.