Isopatch,
This is what appears on the Chicago Tribune's web page today regarding the Illinois Supreme Court case concerning dimpled chads:
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.
chicagotribune.com
Dave
Edit: Sorry. I see now that this has already been posted. |
