The abstention issue

[John Duffy]

Pamela Karlan wrote:

> I don't see any way in which time is of the essence here to such an extent that the
> recount can't continue at least through the end of this week, and I can't
> imagine the state courts doing anything before the hand count is completed.

ABC news reports that "Florida officials say they will enforce a Tuesday 5 p.m. ET deadline for ballot recounting there, a move Gore officials say they will challenge in court."  This news leads to two points.

First, if the state court do nothing before the hand count is completed, as Professor Karlan advocates, then the deadline is less than 30 hours away.

Second, if the state courts do intervene and issue an injunction against enforcement of the deadline, then Bush would seem to have evidence that the state branches are failing "timely to perform th[eir] dut[ies]" within the meaning of Growe.  Moreover, if the state deadlines are waived for Gore counties but are enforced against Bush counties (preventing those counties from commencing hand recounts of their own), then not only is the EPC claim of the voter-plaintiffs strengthened, it is strengthened in a manner that makes timing very important.  The voters would then claim that hand recounts for their votes (one possible remedy) need to begin immediately because no one can say with certainty how long the full process will take.

Perhaps the federal courts should invoke Growe deferral for 30 hours.  If the state deadline is enforced, then the claims of the plaintiffs before the federal court may be moot.
--
John Fitzgerald Duffy
Associate Professor of Law
William & Mary School of Law
P.O. Box 8795
Williamsburg, VA 23187-8795
phone: 757-221-3819
email: jfduffy at bigfoot.com or jfduff at wm.edu