Source:
Chicago Tribune
http://www.chicagotribune.com/

Illinois case offers shaky precedent
http://www.chicagotribune.com/news/metro/chicago/ws/item/0%2C1308%2C46649-46819-48299%2C00.html


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.

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