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George W. Bush must now pull out all the stops. He should form a national government in absentia in Austin, establish immediate relations with Congress’ moderate Democrats and all of its Republicans, and continue the legal battle while escalating a public relations war in defense of his certified electoral victory. He should also openly accept the Florida legislature’s direct appointment of its state’s electors. He should demand emergency remand re-argument time before the Florida Supreme Court to stop it from committing a judicial mulligan by scrubbing all offensive "Florida Constitution" references from its Bush v. Palm Beach rewrite.

The Eleventh Circuit Battle

The current battle in the Atlanta-based United States Court of Appeals for the Eleventh Circuit could be the most important of the election. The case is set to be argued Tuesday, when the Circuit will sit en banc (that is, in its twelve-judge entirety, rather than in a three-judge panel).

Before the Circuit, Bush supporters should, and will, directly challenge the constitutionality of Florida's hand recounts — even if that means, ironically, using the Warren Court precedent protecting the equality of the franchise that is based on a theory of an "evolving" Constitution, typically anathema to conservatives.

While the nation’s attention has oscillated between the courthouses in Tallahassee and Washington, the Eleventh Circuit Court of Appeals has been working hard to prepare for this crucial argument and decision. First, the full twelve-judge en banc court rejected Bush’s request for temporary injunctive relief to stop the Democratic counties’ hand recounts, while the lower court decision allowing the recounts was being appealed. But it also agreed to hear Bush’s appeal on an expedited schedule.

Then, after the United States Supreme Court declined to accept jurisdiction over this case, and hear it along with the Florida Supreme Court ruling, the Circuit "reluctantly agreed" to a Bush request to delay the oral argument until this Tuesday, December 5.

Significantly, the Circuit’s new scheduling order requested that the parties include in their final briefs, due Monday, all "relevant developments in state court litigation" — which would presumably include the very latest information, trial transcripts, and orders from litigation in Leon, Martin, Seminole and other county courthouses. The trial transcript from Leon County Judge Sauls’ weekend proceedings — which shows both that the recounts were standardless, and that they tend to dilute other votes — may be especially helpful to the Circuit, and to the Bush attorneys’ argument.

Why Bush Should Win in the Eleventh Circuit: The Constitutional Arguments

As Bush attorneys will argue before the Eleventh Circuit, the selective, constantly changing, and at times absurd manual recount processes promoted by Gore and his supporters not only are patently unfair, but they also violate several federal constitutional guarantees — the First Amendment, the Due Process Clause, and the Equal Protection Clause.

The selective criteria for recount initiation, and the manual process of divining intent from ballots designed to be read by machines, obviously violates the First Amendment because, as the Supreme Court has held, the right to vote, and to vote effectively, derives directly from the right of individuals to associate together politically — which has been recognized as an important part of free speech. If a state government treats different citizens’ ballots differently — even for an alleged increase in voting accuracy — the result is to elevate the political speech of one citizen over that of another. The First Amendment just does not allow it.

Precedent from the Eleventh Circuit itself strongly favors Bush. In the 1995 case of Roe v. Alabama, the Circuit decided whether absentee ballots in a very close election for Alabama Chief Justice should be counted. The court stated there that if "the election process itself reached the point of patent and fundamental unfairness, a violation of the due process clause may be indicated and relief under § 1983" — a federal statute that allows civil suits to be brought to correct constitutional violations — "therefore in order." After conducting a franchise dilution analysis, the Circuit overturned the state court’s determination of state election law and process. That decision may well be a prophecy of what is to come.

Finally, the Equal Protection Clause has been violated by the current manual recount procedures. In contemporary legal analysis, the constitutional doctrine of one-person, one-vote is central to all issues of political participation. That doctrine is directly offended by the Gore-sponsored county-by-county selective discrimination as to whose ballots are afforded a manual recount. Voting equality is violated when voters in only some counties are afforded the benefit of a recount. And even intra-county, intra-precinct voting equality is violated by the capricious, standardless manual recounts that have occurred in this election — in which only some voters’ votes receive special attention.

Voting Equality Precedents and the Current Manual Recounts

No right is more precious in a free country than that of having an equal choice, and voice, in the election of those who make the laws under which we, as good citizens, must live. Other rights, even the most basic, are illusory if the right to vote is undermined.

In a series of cases decided in the 1960s, the Supreme Court used an "evolving" constitutionalism to breathe democratic life into legislated election processes, through the development of the "one person, one vote" constitutional principle. The Court thrust itself into the "political thicket" in order to constitutionalize the philosophical construct that one person’s vote is just as valuable as the next person’s vote. Within the decade, the constitutional right of franchise equality had been applied expansively in a variety of contexts. And the principle of "one person, one vote" is now firmly established as a fundamental constitutional right of all Americans.

The Supreme Court’s recognition of franchise equality as a fundamental right was perhaps the most important step towards democracy since the Civil War Amendments were ratified and enacted. As the Court stated in the seminal case of Reynolds v. Sims, "To the extent that a citizen's right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote."

The Court’s words resonate now. The current manual recount process discriminates between neighbors living in different counties, and also between neighbors living in same precinct. It is little more than Florida franchise roulette: spin the manual count canvassing board wheel and wait to see which ballot is diluted by what tired, partisan, or angry canvassing board majority attempting to divine voter intent from partially-punched or barely dented chads.

If the nation’s courts may use the franchise equality doctrine to invalidate malapportioned state voting schemes, as the Supreme Court has repeatedly done, then those courts may also prevent widespread, systematic infringement on, and dilution of, the right to vote in a presidential election, of the kind that is occurring right now.

The 1963 case of Gray v. Sanders, in which the Supreme Court struck down a state electoral system that also affected federal officeholders, illustrates the federal courts’ aggressive use of the doctrine of franchise equality against state election practices. In Georgia, a system that was directly analogous to the national electoral college was used to select United States Senators, the Governor, and other statewide officers. This election process was conducted by tabulating votes according to county "units." The U.S. Supreme Court voided the Georgia system not only because the counties were malapportioned, but also because the county unit/winner-take-all system allowed the greatest plurality winner of each county to capture the county’s one vote.

Will not Albert Gore, adopted founding father of the "evolving" constitution, now be faithful to this Warren Court constitutional rule, and withdraw his Eleventh Circuit opposition? Of course, that seems highly unlikely; Gore has not been remarkable, lately, either for his consistency or his adherence to the concept of the rule of law. Thus, we can only hope the Eleventh Circuit will do the right thing for voting equality, and hold in favor of Governor Bush.

Victor Williams, a FindLaw contributor, teaches law at the Catholic University ‘s School of Law in Washington, D.C., and is an adjunct professor at the University of Virginia’s Northern Campus. He holds a J.D. from the University of California–Hastings and LL.M. from the Columbia University Law School. Part One and Part Two of his earlier series on the election also appeared on Writ.

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