WASHINGTON - The Bush campaign's effort to persuade a federal court to put an immediate stop to the Florida election dispute failed again yesterday - the fourth failure in three weeks.
By an 8-4 vote, the 11th U.S. Circuit Court of Appeals based in Atlanta ruled that Gov. George W. Bush of Texas has so far suffered no legal harm from the dispute and that a federal court should not step in yet to rule on Bush's constitutional challenge to Florida election laws.
The ruling amounted to a temporary, limited victory for Vice President Al Gore, whose lawyers have tried to keep the federal courts out of the ballot dispute. Because it leaves federal constitutional issues unanswered, the ruling magnifies the importance of Gore's effort in the Florida Supreme Court to use state law to overturn Bush's certified victory in Florida.
Yesterday's decision came just 24 hours after the federal appeals court had held a hearing. The decision upheld a refusal Nov. 13 by U.S. District Judge Donald M. Middlebrooks of Miami to forbid all manual recounts in the Florida dispute. All manual counting has stopped for now.
The appeals court's ruling paralleled similar temporary rebuffs of Bush by Judge Middlebrooks, by the appeals court at an earlier stage and by the U.S. Supreme Court.
Bush's legal team is free to ask the appeals court to reopen the dispute, should the Texas governor now lose any of the cases unfolding in state courts and thereby risk losing his lead in Florida.
The governor's lawyers can appeal the new ruling to the U.S. Supreme Court. But that would be a long-shot maneuver, because the justices seldom review a lower court's ruling issued at a preliminary stage, as the Bush constitutional challenge is.
Another option to the Bush team is to ask Judge Middlebrooks in Miami to issue a new ruling directly answering their constitutional complaint.
The four dissenting judges in the appeals court endorsed that maneuver.
Three of those dissenters also said they hoped the case would go on to the U.S. Supreme Court. All 12 judges, those three said, had "laid the groundwork for an informed decision by the justices of the U.S. Supreme Court. ...We have done our best so that they can do their best."
In an unusual plea, those dissenters urged the public not to regard yesterday's decision as a political judgment and not to conclude that the judges had taken sides based upon the party of the presidents who had nominated each of them to the bench.
The appeals court refused to rule on a series of constitutional challenges by Bush and three Republican voters to all manual recounting in Florida. The court essentially agreed to stay out of the fray for the time being, other than to deny Bush any immediate help.
Bush's legal team contends that manual recounts conducted in only a few counties enhance the voting power of those votes unequally and that manual recounts are so subject to abuse and bias that their use is arbitrary and violates the Constitution's guarantee of "due process."
Only the four dissenters responded to those challenges.
The majority concluded that, "at the moment," Bush and his running mate, Dick Cheney, "are suffering no serious harm, let alone irreparable harm, because they have been certified as the winners of Florida's electoral votes" even though votes recounted by hand have been included in the statewide tally."
And, it added, even if a Florida state court ordered manual recounts to resume - an action Gore is now seeking in the state Supreme Court - "it is wholly speculative as to whether the results of those recounts may eventually place Vice President Gore ahead."
It is not even clear that any such recount will be ordered, the appeals court majority said. It noted that a Florida state judge rejected Monday Gore's contest of Bush's certified victory and turned down the vice president's request for a resumption of manual counts in Democratic-dominated counties.
The appeals court also noted that the U.S. Supreme Court has put on hold the Florida Supreme Court decision that legalized manual recounts in Florida, "raising still further doubt about the likelihood of any substantial injury" to Bush and his followers.
Though the majority stressed that it was not ruling for or against Bush's constitutional challenges, one of the eight judges in the majority said he would reject those challenges.
The four dissenting judges declared that the Florida election laws violate the constitutional rights of Florida voters in allowing the use of manual recounts in selected counties and in permitting them with no standards to prevent arbitrary counting.
