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DECISION 2000 / AMERICA WAITS | NEWS ANALYSIS

Analysts Call GOP Lawsuit Legally Weak

Strategy: Aim is to get vote cases into Republican- dominated federal court.

November 13, 2000|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

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.

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