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Published: Wednesday, 2/8/2006

U.S. judge dismisses case over recount


COLUMBUS - More than a year after Ohio officially handed its 20 electoral votes and the national election to President Bush, a federal judge yesterday dismissed a lawsuit from candidates still waiting for their recount.

While U.S. District Court Judge James G. Carr in Toledo said Secretary of State Kenneth Blackwell's actions "arguably" conflicted with federal law, the judge dismissed the suit on the grounds that the U.S. Constitution, with rare exception, prohibits suits against states in federal court.

The judge found that, since Mr. Blackwell's directive limiting the recount timeline affected just one election more than a year old, the suit didn't meet one of the exceptions to the immunity rule.

A federally authorized state law requires that any recount for which the required fee has been posted must begin between 11 and 15 days after the voting.

Mr. Blackwell took the position that the recount couldn't begin until the vote was certified, which occurred about a week before the Ohio Electoral College met in Columbus on Dec. 13 to formally give Mr. Bush its votes.

Michael Bednarik, the Libertarian candidate, and David Cobb, the Green Party's write-in candidate, said they raised $150,000 to meet the $10 per-precinct fee for a full hand recount of the 5.5 million votes cast on Nov. 2, 2004.

Roughly 119,000 votes separated Mr. Bush and Democrat John Kerry. The suit contended Mr. Blackwell's directive rendered any recount effort meaningless.

The Ohio General Assembly recently raised the bar for future recounts, raising the fee from $10 per precinct to $50.

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