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How Bush could carry federal court fight to U.S. Supreme Court


WASHINGTON (CNN) -- GOP presidential candidate George W. Bush could ask an Atlanta appeals court or the U.S. Supreme Court -- or both -- to quickly review a Miami judge's decision Monday allowing Florida ballot recounting to proceed, legal scholars said.

Bush's lawyers could file an emergency appeal seeking an "expedited review" of U.S. District Judge Donald Middlebrooks' rejection of Bush's request for a preliminary injunction to stop recounting in four Florida counties, according to Neal Katyal, a constitutional scholar at Georgetown University's law school.

Given that the presidential election is at issue, Bush could urge the 11th U.S. Circuit Court of Appeals to hear the case as soon as Monday afternoon, Katyal said.

Complaint from Volusia County Canvassing Board challenging November 14 deadline for election certification - McDermott v. Harris - November 13, 2000 (FindLaw)(PDF format)

Judge Middlebrooks' ruling denying injunction sought by Bush campaign

Federal complaint for declaratory and injunctive relief filed by the George W. Bush campaign (FindLaw) (PDF format)

State court complaint seeking a new election in Palm Beach County, Fladell v. Palm Beach (FindLaw)

Palm Beach County voters' class action civil rights complaint, Horowitz v. Lepore (FindLaw) (PDF format)

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Such emergency appeals are routinely filed -- and granted -- in death penalty cases after the prisoner has exhausted all other appeal avenues, Katyal said.

Under Supreme Court rules, Bush could also file an emergency appeal seeking a review of the Miami judge's decision by the nation's highest court, bypassing the 11th Circuit altogether, Katyal said.

However, the nation's highest court rarely grants such "direct appeals," according to Katyal and Kevin Clermont, who specializes in federal legal procedures at the Cornell University law school.

The last time the high court accepted a "direct appeal" was in 1974 in a case of monumental political and constitutional importance -- U.S. v. Nixon, which involved secret Oval Office recordings President Nixon made.

Katyal said the Supreme Court affirmed the district court ruling, ordering Nixon to turn over the tapes to congressional investigators involved in the impeachment process. Nixon's lawyers had bypassed the District of Columbia Circuit Court of Appeals.

A third alternative for Bush: File emergency appeals with the Atlanta court and the Supreme Court simultaneously in hopes that if one court refuses to consider the matter, the other would accept it, Clermont said.

A law that has been on the books since the beginning of the Republic allows such simultaneous filings, but the high court rarely hears a matter pending before a lower court, Clermont said.

Bush's strategy remained unclear Monday. Bush attorney Theodore Olson said after the Miami judge's ruling the Texas governor's legal team has not yet decided how to proceed.

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