Bush's First Amendment claim fails to sway federal judge
By David Hudson
The Freedom Forum Online
11.15.00
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In rejecting George W. Bush's bid for an order halting further manual
recounts in Florida, a federal judge this week turned away the Republicans'
First Amendment challenge to a section of Florida election law.
On Nov. 7, the American people overwhelmingly voted for Texas governor
Bush and Vice President Al Gore, the Democratic candidate, in the presidential
race. The initial results showed Bush with a narrow 1,900-vote lead over Gore
in Florida.
Florida law mandates a machine recount in elections with a difference
of 0.5% or less between the candidates. Because the margin between Bush and
Gore was 0.0299%, the recounting process began. The machine recount showed an
even narrower margin for Bush.
The Florida Democratic Party then filed requests for manual recounts
in four primarily Democratic counties — Broward, Miami-Dade, Palm Beach
and Volusia — citing voting "anomalies."
Several individual Republican voters and Bush and his running mate,
Dick Cheney, sued in federal court, asking for a judicial order halting further
manual recounts.They argued that allowing local canvassing boards to order
manual recounts violates the First Amendment.
In their lawsuit, Seigel v.
LePore, the Republican plaintiffs asserted that the manual
recounts presented "problems of inherent unreliability and subjectivity." The
complaint alleged that Section 102.166 of Florida's election law violates the
First and 14th Amendments.
"The state's action in this case arbitrarily denies and burdens the
Voter Plaintiffs' votes and political speech," the plaintiffs alleged. "Due to
the standardless nature of the recount and contest scheme, government officials
are vested with arbitrary power and authority to deny the vote and thus thwart
political speech. Such schemes are presumptively violative of the First
Amendment."
The complaint noted that the Florida law "apparently gives the
canvassing board complete discretion" in making a decision as to whether to
grant a manual recount.
On Nov. 13, U.S. District Judge Donald Middlebrook rejected the
request for a preliminary injunction.
"Unlike a ballot access restriction that burdens only certain
candidates or parties, Florida's manual recount provision is a 'generally
applicable and evenhanded' electoral scheme designed to 'protect the integrity
and reliability of the electoral process itself' — the type of state
electoral law often upheld in federal legal challenges," Middlebrook wrote.
"On its face, the manual recount provision does not limit candidates'
access to the ballot or interfere with voters' right to associate," the judge
wrote.
Middlebrook also noted that "only in extraordinary circumstances will
a challenge to a state election rise to the level of a constitutional
deprivation."
Yesterday afternoon, the plaintiffs filed a notice of appeal to the
11th U.S. Circuit Court of Appeals.
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