New York Times
November 17, 2000

Legal Eyes Are Watching 11th Circuit Once Again


ATLANTA -- A herd of television trucks was massed out front, and court clerks had to trudge to work at 5:30 this morning to process the latest urgently requested documents. Already jolted once this year by the Elián González case, the federal appeals court here began today to sort out another clamorous dispute from Florida, the question of whether to allow manual recounts of presidential ballots.

The court, the Court of Appeals for the 11th Circuit, did not conduct a hearing today in the case, which was brought by Gov. George W. Bush's campaign to overturn a federal court ruling in Miami that permitted the manual recounts.

It is unclear whether the appeals court intends to hold a hearing; it could issue a decision based only on court papers, perhaps as soon as Friday.

But the court has signaled the importance of the case by having all 12 members of the court consider it, departing from the customary practice of using three-member panels to weigh appeals.

With the manual recounts continuing and the Bush campaign suffering a setback today in the Florida Supreme Court, the decision here could be crucial. If the Bush campaign loses, its only recourse on the federal level would be the United States Supreme Court.

In papers filed with the appeals court, the Bush campaign emphasized the points it made to the lower court, saying that manual recounting of some votes but not others violated constitutional guarantees that all votes be treated equally. "It is difficult to imagine a legal question of greater national significance," the papers said.

The Florida Democratic Party, which is representing the interests of Vice President Al Gore's campaign, has responded that the federal courts do not have jurisdiction over the case, and should allow state courts in Florida to settle it. The lower federal court in Miami essentially agreed with that view.

A biographical survey of the appeals court might suggest a friendly audience for the Bush campaign: 7 of its 12 members were appointed by Republican presidents, 4 by Mr. Bush's father. The court has a reputation as being somewhat conservative.

Still, some legal experts point out that federal judges are appointed for life and value their independence, and they say a traditionally conservative stance on this case would hold that the federal judiciary should generally stay out of such state matters.

"This is a slam-dunk easy case," said Prof. Richard D. Freer of Emory Law School here, who described his legal philosophy as similar to the court's. "There is a better chance that Elián González will come back and be in the Macy's Thanksgiving Day Parade than that the 11th Circuit will do anything with this. They will affirm what the lower judge said."

The González case looms large in the recent history of the 11th Circuit. In June, a three-judge panel ruled that immigration officials could let Elián's father take the boy back to Cuba.

The decision's plain language hinted at a no-nonsense sensibility. In rejecting a subsequent appeal that the full court consider the case, Judge James Larry Edmondson wrote that the court would not consider any more motions, writing "not" in oversized letters.

The Bush case before the court today has a companion case that was brought by three Bush voters in Florida who are represented by a conservative advocacy group. The second case was also rejected by a lower court judge in Florida, and the appeals court is expected to combine the two cases in issuing a ruling.

There was much speculation today about the significance of the court's move to have both cases decided by all 12 of its members.

Some lawyers said it indicated that the court wanted to speed the typical schedule, so that any subsequent appeals would go to the United States Supreme Court. Others said the court wanted all the judges included because it planned to consider the cases in light of a 1986 precedent in which it ruled that federal courts should not involve themselves in the "technical data of election returns and polls."

And at least one lawyer on the Democratic side fretted that a 12- member court could be a bad omen.

"What happened in the 11th Circuit is kind of surprising to me," said Bruce S. Rogow, a lawyer for Theresa LePore, the Palm Beach County elections supervisor. "Maybe I'm off base here, but the suggestion that I get here is that the court is somewhat receptive to their arguments."

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