llinois 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.
The original article at the
Chicargo Tribune