Analysts Call GOP Lawsuit Legally Weak

The lawsuit by George W. Bush’s presidential campaign to prevent a manual recount of votes in Florida is legally weak, but may be tactically advantageous, Democratic and Republican legal experts said Sunday.

Legal scholars said it would be very difficult to convince a federal judge that the mere act of holding manual recounts would irreparably harm the rights of either Bush, the Republican candidate, or the seven Florida Republican voters who are his co-plaintiffs. Federal District Judge Donald M. Middlebrooks has scheduled a hearing in the case for this morning in Miami.

Getting the case into federal court, however, could prove shrewd for the Republicans, who have asked Middlebrooks to take control over all cases involving the disputed balloting in Florida. Although Middlebrooks is an appointee of President Clinton, the federal appeals court that has jurisdiction over Florida cases is dominated by Republican appointees. By contrast, the state courts that would hear the case in Florida are predominantly Democratic.

At the top of the legal system, a majority of current U.S. Supreme Court justices were appointed by Republican presidents. By contrast, six of the seven justices of the Florida Supreme Court were appointed by Democratic governors. The seventh was appointed by a bipartisan agreement between former Gov. Lawton Chiles, a Democrat, and current Gov. Jeb Bush, a Republican and George W. candidate Bush’s younger brother.

“I think people in the Bush camp made a decision that they wanted to be in federal court, and I can see why they would have preferred that forum,” said Orlando attorney David E. Cardwell, who has represented both major political parties in voting disputes in Florida.

Not surprisingly, the first move by the Democratic legal team--headed by Harvard Law School professor Laurence Tribe--was to argue not only that the Republican suit had no merit, but that the litigation belongs in state court.

“The state’s method of appointing its presidential electors is indisputably and fundamentally a state law issue,” Tribe argued in a brief filed in federal court Sunday evening in Miami. “Maintaining the integrity of the state electoral system and assuring that the votes of all voters are properly counted, is the most fundamental imaginable state interest.”

Bush and Democratic presidential candidate Vice President Al Gore have retained top-flight lawyers to represent them in this unprecedented legal battle.

Among the GOP lawyers is Theodore Olson, a former ranking official in the Justice Department under President Reagan and now a partner in the Washington office of Gibson, Dunn & Crutcher, a large law firm based in Los Angeles. Olson’s colleagues in this endeavor include George J. Terwilliger--a deputy attorney general under President Bush who now practices in Washington--and Barry Richard, considered one of the top appellate lawyers in Florida.

Leading the Democratic team is Tribe, who is considered one of the nation’s foremost constitutional scholars and has won a host of major cases at the U.S. Supreme Court. Joining him is Kendall Coffey, a Miami attorney who is a former federal prosecutor and recently represented the Miami relatives of shipwreck survivor Elian Gonzalez in their unsuccessful efforts to keep the child from being returned to Cuba.

The Republican team is asking Middlebrooks to issue an order blocking further recounts, including the hand counting of ballots, until after a full judicial proceeding can be held.

To get that, they must convince the judge of three things: that their side would win the legal arguments if the case went to trial; that fairness--what lawyers call the balance of the equities--is on their side; and most importantly, that allowing the count to go ahead and sorting out the legal arguments later would cause “irreparable harm” to their clients.

The basic claim in the suit, which the GOP filed Saturday in federal court, is that moving to a hand count of ballots would deny the constitutional rights of Republican voters, violating the 1st and 14th amendments to the U.S. Constitution.

The irreparable harm comes in, they argue, because any recount would be “broadcast to the nation,” fixed in the public mind, and “any subsequent invalidation by this court will not be able to cure the serious damage to the legitimacy of the presidential election.”

The Democrats said in their brief that Bush is arguing against a system that “reflects an electoral practice--the hand counting of ballots--in effect throughout the country since the nation’s founding.”

The Republican argument, Tribe wrote, is based on insubstantial “speculations that humans are inherently inferior to machines in the matter of counting votes.”

Several constitutional law experts said they found the Republican arguments highly unusual and legally shaky. “This complaint is really stretching it,” said Stanford University law professor Pamela Karlan, a voting rights expert who once worked for the NAACP Legal Defense Fund.

If a further recount were enough to create an irreparable injury, “then there would be irreparable injuries all the time from the media projecting election results or even from the machine recount,” which already has reduced Bush’s margin in Florida, Karlan said.

The alleged injury that the Republican lawyers are claiming seems abstract, said Pepperdine University law professor Douglas Kmiec, who ran the Office of Legal Counsel in the Justice Department during the Reagan administration.

“You would have to show that your vote is diluted by recounting. That seems unlikely given all the recounting there has been in the past” in Florida and around the country, Kmiec said.

On the other hand, he said, the argument that public perception stemming from a recount could hurt Bush has some merit. “Part of the presidency is being able to have an effective transition,” and “to have finality on the electoral outcome” in order to be able to effectively govern, he said. “All that tends to be jeopardized if the result changes every day or every hour.”

The Republican suit contends that a hand recount in some counties but not others would violate Republican voters’ 14th Amendment rights to equal protection under the law because the Florida recount law grants too much discretion to state officials and lacks clear standards about how to conduct a recount.

The Democrats counter that states and counties traditionally have had wide latitude in deciding how to conduct elections.

The Democrats probably have the better of that argument, said Karlan and Yale University law professor Akhil Reed Amar.

“I don’t see how a voter whose vote has been counted can be denied equal protection of the law just because someone else’s vote is counted,” Karlan said.

Amar noted that ballot rules that vary from one county to another always have been part of American voting. In Florida, for example, voting hours are not uniform in all parts of the state, and counties use varying types of ballots, he noted.

The Republicans also argue that, if the hand recount goes forward in some Florida counties, it will deny the vote already counted “and thus thwart political speech” of voters in the rest of the state, violating their 1st Amendment rights.

Federal courts generally are loath to grant temporary restraining orders on the basis of “speculative harm” of that sort, said Nat Stern, a constitutional law professor at Florida State University in Tallahassee.

In addition to asking for a halt to manual recounts, attorneys for Bush and the seven Florida voters are asking Middlebrooks to do five other things:

* Consolidate in his court all lawsuits filed in Florida seeking to challenge the results of the presidential election or to delay certifying those results. So far, eight such suits have been filed in Florida state courts.

* Declare that the ballot used in Palm Beach County was valid.

* Declare that any ballot punched or marked for two or more presidential candidates cannot now be counted.

* Declare the Florida law permitting manual recounts unconstitutional to the extent that it does not limit the discretion of local officials.

* Declare that Florida officials should certify and release all vote totals that have been the subject of two counts since Tuesday, election day.

Those requests presumably would leave intact the results of a hand recount that the Republicans requested in Seminole County, where Bush gained 98 votes, attorney Cardwell said.

Several of the legal experts said they found it ironic that Bush, a strong advocate of states’ rights, local control and “federalism”--maintaining a proper balance between federal and state powers--was attempting to get a federal court to dictate to Florida counties how a recount should or should not be conducted.

“Federalism doesn’t have a lot of traction compared to winning the White House,” Karlan said. “Federalism is very abstract; the White House is quite concrete.”

If Middlebrooks denies the Republican request, Bush’s lawyers could appeal to the U.S. 11th Circuit Court of Appeals, based in Atlanta, which has jurisdiction over cases from Florida, Alabama and Georgia.

They also could try to bypass the appeals court and go directly to the Supreme Court--a route rarely employed but which can be used under the Supreme Court’s rules if a case “is of such imperative public importance as to justify deviation from normal appellate practice and require immediate settlement in this court.”