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Palm Beach County voters return to court to protest butterfly ballot

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WEST PALM BEACH, Florida (CNN) -- Palm Beach County voters who say they were confused by the county's butterfly ballot return to court Monday in their second bid to get a new, countywide presidential election.

A three-judge panel of Florida's Fourth District Court of Appeal will hear the case -- just one day after a recount favored by other voters was unsuccessful in giving Vice President Al Gore the votes necessary for a victory.

No fewer than seven lawsuits seek a re-vote, saying an election is the best way to determine the intent of voters who may have mistakenly voted for Reform Party Candidate Patrick Buchanan instead of Gore.

One week ago, Circuit Judge Jorge Labarga ruled that a re-vote was unconstitutional. Labarga said the Constitution gives Congress the power to set the times of presidential elections, and that Congress has exercised that power, setting the elections "on the Tuesday next after the first Monday in November."

The statute was "clear and unambiguous," Labarga ruled.

But attorneys and supporters of voter Andre Fladell -- the lead plaintiff in the claim -- say a re-vote is the appropriate remedy to redress a ballot they say was illegal.

"Nothing in federal or state law... precludes the judicial branch from crafting an appropriate remedy," the American Civil Liberties Union wrote in a brief filed with the court.

The appeals court has set aside one hour for oral arguments, beginning 11 a.m. Monday. The case will be heard by Chief Judge Martha C. Warner and judges Carole Taylor and Larry A. Klein.

The appellate judges have asked lawyers to discuss whether the case belongs elsewhere. A state law gives jurisdiction over elections cases to Leon County, home of Tallahassee, if an election covers more than one county, the judges noted.

Plaintiff's attorney Howard Weiss says the case belongs in Palm Beach County.

"It's a situation that is unique to Palm Beach County," Weiss said, noting that Palm Beach county was the only Florida county to use the butterfly ballot.

Regardless of which county has jurisdiction, Weiss predicted the case ultimately will wind up in the state's Supreme Court, like other cases involving the disputed 2000 presidential election.



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