WASHINGTON - A federal appeals court set the stage yesterday for the Florida election dispute to wind up in the U.S. Supreme Court soon, even as it temporarily rebuffed the Bush campaign's constitutional challenge to the recounting of votes by hand.
The 11th U.S. Circuit Court of Appeals, based in Atlanta, refused to stop the manual vote recounts for now but postponed any ruling on the constitutionality of that method of tallying votes. It put the case on a fast track for review, however.
In perhaps the most significant facet of a series of orders, however, the appeals court made clear that the legal team for Gov. George W. Bush of Texas could press its constitutional challenges to hand recounts in state court, too - thus putting the state cases on a track toward the nation's highest court.
Now, it appears, either the state court dispute or the one pending before the federal appeals court - or both - could wind up in the U.S. Supreme Court, giving the justices the chance to have the last word. The chance for the Bush team to raise federal constitutional issues in the state cases was particularly important to the Texas governor's strategists, because their prospects for getting the federal courts to rule their way on the constitutional arguments had seemed remote. And it had appeared - before yesterday - that they could not raise those claims in state court.
There are two federal constitutional claims: that manual recounts in some counties enhance the voting power of those counties unequally and that manual recounts are so subject to abuse and bias that their use is arbitrary and thus a violation of "due process."
Those arguments have not fared well in federal court. A federal judge in Miami raised doubts earlier in the week about those challenges. But he stressed that the federal courts should stay on the sidelines of the dispute over the presidential election in Florida.
Then, yesterday, the appeals court left the impression that it might hold that view, too. Though it did not decide the Bush challenge, it noted that the Constitution and federal law give states "the primary authority" to decide how to cast votes for the presidency and how to decide election disputes.
Those comments, and the earlier ruling by the Miami federal judge, made the state cases even more important for Bush's challenge to manual recounts as the Florida legal battle rages on.
The state cases have been confined to disputes over Florida election law, with no indication that claims of violations of the U.S. Constitution would come into play. If the Florida Supreme Court decided those cases solely on state law grounds, the general rule is that there would be nothing the U.S. Supreme Court could review; state law issues are for state courts to decide.
But the federal appeals court said yesterday that all constitutional questions put before it by Bush's lawyers could also be raised in Florida courts, especially should Bush lose in the state cases.
The first chance for the Bush camp to raise constitutional questions in the state cases could come when it files its arguments in the state Supreme Court this weekend, before a hearing Monday by that court. Because Bush's lawyers have raised no federal issues in the state cases, Vice President Al Gore's legal team probably would argue that they have forfeited such arguments and could not bring them up now. The state court might have to decide that issue.
But there is another chance that the Bush team could take the case on to the Supreme Court, after the state court rules, and make federal constitutional arguments.
That's because the Supreme Court, in a 1923 decision governing appeals from state courts, said that a party that loses a case in state court and finds - after the state court ruling - that the ruling violates its constitutional rights can take that claim on to the Supreme Court.