November 19, 2000

FEDERAL APPEALS COURT COULD BLOCK MANUAL RECOUNTS IF FLORIDA SUPREME COURT DOESN'T

The U.S. Court of Appeals for the 11th Circuit has ordered expedited briefing on the merits on appeals that have the potential to block the manual recounts that are now currently underway in several Florida counties -- even if the Florida Supreme Court orders the results of those recounts to be included in official state tallies.

On Monday, November 13, three Florida voters residing in Brevard County filed suit (Touchston v. McDermott) in the U.S. District Court in Orlando, arguing for invalidation of a Florida law that violates the voters' federal equal protection and due process rights by allowing selective manual recounts by candidates and counties using vague, subjective, arbitrary and capricious standards.

The voters are represented by the James Madison Center for Free Speech, a public interest organization that defends the rights of citizens to participate in our democracy. James Bopp, Jr. is the General Counsel of the James Madison Center. In the past, Mr. Bopp has participated in more than 60 election-related cases, including recounts, redistricting, and constitutional challenges to state and federal election laws. He has won numerous legal challenges to election laws that violate federal constitutional guarantees.

The Madison Center suit was filed against members of the County Canvassing Boards of Volusia, Palm Beach, Broward and Miami-Dade Counties, and against Secretary of State Katherine Harris and other members of the state Elections Canvassing Commission. The suit alleges that Florida Stat. ' 102.166(4) unconstitutionally establishes an election recount procedure that dilutes and debases the vote of the three voters and of other Florida voters who cast their ballots for Governor George W. Bush, and thereby violates plaintiff voters' right to equal protection of the laws. The voters request that the statute be struck down and that the State and county defendants be enjoined from utilizing the results of the manual recounts in determining the winner in the Presidential election.

On Tuesday, November 14, U.S. District Judge John Antoon denied the voters' request for a preliminary injunction. On Wednesday, the voters filed an expedited appeal with the U.S. Court of Appeals for the 11th Circuit in Atlanta and a request for an injunction pending appeal. On Thursday, the Bush campaign filed an appeal on its separate case (Siegel v. LePore) with the 11th Circuit (and a similar request for an injunction pending appeal).

Late Friday, November 17, the 11th Circuit entered orders in both cases, denying the motions for injunctions pending appeal, but "without prejudice." Setting out its opinion in the voters' case (incorporating it by reference in the Bush case), the Court stated that if what election officials represented in their briefs were true -- that the "state courts will address and resolve any necessary federal constitutional issues presented to them, including the issues raised by Plaintiffs in this case" -- then the 11th Circuit need not yet address the issues.

However, the 11th Circuit only denied the motion for an injunction pending appeal "[b]ased on a thorough review of events as they now stand." (emphasis added) Thus, the 11th Circuit left the door open for another motion for an injunction pending appeal, if the Florida Supreme Court orders Secretary of State Harris to accept the results of ongoing manual recounts.

The 11th Circuit also ordered the parties to file schedules for expedited briefing in the appeals.

The plaintiff voters intend to vigorously pursue an expedited appeal and stand ready to file another motion for an injunction pending appeal, if and when the Florida Supreme Court requires Secretary of State Harris to certify vote totals containing manual recount totals.

Contact: James Bopp, Jr., General Counsel
phone 812-232-2434, fax 812-235-3685, jboppjr@abcs.com

Mr. Bopp is a member of Bopp, Coleson & Bostrom, 1 South Sixth Street, Terre Haute, Indiana 47807; (812) 232-2434 (phone); (812) 235-3685 (fax).