Illinois case offers shaky precedent

By Jan Crawford Greenburg and Dan Mihalopoulos Tribune Staff Writers November 23, 2000

A landmark Illinois Supreme Court ruling hailed by Vice President Al Gore's lawyers may not be the legal home run they believe will aid his quest to win Florida's 25 electoral votes and the White House, an analysis of the ruling shows.

Gore's lawyers focused on the Illinois ruling because the Florida Supreme Court quoted it at length Tuesday night in its decision to allow manual recounts in selected counties to continue. The lawyers suggested that the mention of the Illinois case was a sweeping directive to count controversial "dimpled" ballots, in which ballots were indented but not punched through.

Democrats have fought hard to have those ballots counted in the official tally, believing that most of them would fall into Gore's column and give him the presidency. They said the Florida Supreme Court's ruling and its citation of the Illinois opinion bolstered their arguments.

But that Illinois case should not give Democrats any confidence that dented ballots will be counted in Gore's favor. That's because the Illinois court actually affirmed a trial judge's order to exclude dented ballots, since he had decided he could not reasonably determine the voters' will by examining the ballots.

In fact, in the Illinois case, the dented ballots were not counted at all.

"The judge did not count ballots that were indented because he could not determine the voters' intent," said attorney Burton Odelson, who represented challenger Rosemary Mulligan in the 1990 case. "From the beginning, I knew everybody [in Florida] was interpreting this case wrong and reading into it what they wanted to read into it."

In the Illinois case, the court ruled that a trial judge must look at all the disputed ballots to determine the will of the voters. That's what the Democrats picked up on, stressing that the Florida court approvingly quoted its Illinois equivalent: "Voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot."

Late Tuesday, the Gore legal team pressed the issue further, asking a Cook County attorney involved in the Illinois case to sign an affidavit saying that dented ballots were ultimately approved in the Illinois case. The affidavit the attorney signed Wednesday apparently was mistaken in its assertion that such ballots were counted.

In fact, in its ruling the Illinois Supreme Court approved the procedures that Cook County Circuit Judge Francis Barth used four days earlier when he refused to accept any dented ballots, even those with, as he said, "definite" or "distinct" dents. Instead, Barth counted most of the ballots that had been perforated enough for light to shine through them, even if the paper tag known as a chad had not fallen out.

"I don't believe the fact that an impression standing alone counts necessarily that this voter intended then to vote on the state representative race," Barth said during a 1990 hearing after examining one disputed ballot, which he discarded.

In rejecting the dented ballots, Barth looked at the condition of the rest of the ballot. If the voter had clearly punched out chads in other contests, he said, the voter knew he had to punch a hole for his vote to count. As such, he said he couldn't make the logical leap that a dent should count as a punch in another race.

"It's not clearly ascertainable what the voter intended," Barth said during the Sept. 17, 1990, hearing in which he ruled on the disputed ballots.

In evaluating the ballots, Barth relied on guidelines in a 4-day-old Illinois Supreme Court order. The high court told Barth to look at the ballots not counted by machines because the chad was not completely dislodged. It then said he should determine whether the voter's intent "can be reasonably ascertained" and, if so, to count the vote.

That guidance is similar to that a Florida judge gave Palm Beach County on Wednesday, saying officials could accept the dimpled ballots if voter intent was clearly discernible. Gore's lawyers had urged the trial judge to rule that a discernible indentation on or near a chad must be recorded as a vote.

But Florida Circuit Court Judge Jorge Labarga, again picking up language used by the Illinois Supreme Court a decade ago, instead ruled that a dimpled ballot could be tallied only when officials "fairly and satisfactorily ascertain the intent of the voter."

Using that same guidance, Barth rejected the dents, saying at the 1990 hearing he began "with the assumption that a voter will understand that there must be a punch in the ballot." Barth acknowledged that it could be difficult for voters to read punch cards and determine whether they had punched the right holes. But he then continued: "I believe that there is at least a minimum standard that they be cognizant and aware of the fact that it is a punch card."

At one point, Barth noted that lawyers were arguing dents to the point that "fibers were disturbed." But that wasn't enough in one ballot, particularly since the voter had successfully punched the ballot for other candidates, he ruled.

Of the 27 disputed ballots the state Supreme Court ordered Barth to examine, he rejected nine dented ballots because, as he said, the dents were insufficient to prove the voter's intent.

He rejected four others with pinholes that were misaligned, accepted three "hanging chads," in which the perforation was partially attached, and approved five ballots punctured by pinholes. Six disputed ballots were withdrawn.

Barth raised practical reasons why he couldn't reasonably ascertain the will of the voter in a ballot that had a dent for one candidate, but clear punches for other candidates in other races.

"Can a voter make a dent in the ballot and yet change [his] mind, and decide not to vote for that candidate?" Barth asked attorney Michael Lavelle, lawyer for Republican Penny Pullen, at the hearing.

"Yes. I wouldn't say that's not impossible," Lavelle responded. "That's quite possible."

Late Tuesday night, Gore's top lawyers enlisted Lavelle's aid in the vice president's legal battle. He said attorneys David Boies and Mitchell Berger, a Florida lawyer, awoke him with a phone call shortly before midnight to find out whether he would swear that he remembered the trial judge counting indented ballots.

Lavelle, a former chairman of the state and Chicago elections boards, said he signed two identical affidavits early Wednesday and faxed them to Berger, who had told him he needed the papers to file in two county courts. In the affidavits, he said that to the best of his recollection, he believed the judge counted indented ballots, giving Pullen the victory.

"In 10 years, memories can fade," Lavelle said later Wednesday when told Barth had, in fact, excluded them. "I couldn't remember the details. The affidavit was more general than specific."

Barth, now an appeals judge in Chicago, declined to comment on Wednesday.

Illinois ruling excluded dimples!

-- Ain't Gonna Happen (Not Here Not@ever.com), November 27, 2000

Answers

-- Ain't Gonna Happen (Not Here Not@ever.com), November 27, 2000.

Oh, WOW!!!!!....yet another picture of the crying baby.

Give it a break..will ya.

-- (you sound@like.one), November 27, 2000.

yet another picture of the crying baby

Glad you like it! :-)

-- Ain't Gonna Happen (Not Here Not@ever.com), November 27, 2000.

Tell me, why doesn't Gore ever mention counting the military votes?

I can tell you why right now.

Gore is as two faced as they come.

He don't give a damn about the military votes, because most of them have voted for Bush!!!!

Do you really want another klinton?

Because that is what you get with Gore!!!!

-- ... (...@...com), November 28, 2000.