- The Washington Times - Friday, December 1, 2000

There he goes again. A week after the fact came out to the contrary, Gore campaign attorney David Boies is still arguing that a 10-year-old Illinois court case supports his contention that Florida canvassers must count dimpled or indented "chads" the paper squares next to candidates' names that voters punch out to register their choices. It takes hard work to mischaracterize a case so completely, but Mr. Boies seems more than up to the job.

Here's what one reporter asked Mr. Boies at the close of a press conference Thursday morning in Tallahassee, Fla.: "Will you continue to cite the Illinois case as proof of the dimple standard when the Chicago Tribune investigation said that it repudiated that and that one of the guys you've got an affidavit from has since recanted?"

Answered Mr. Boies: "The Illinois case, yeah, and that's actually what I was talking about. I was talking about the Pullen case [in Illinois]. First the Chicago Sun Times and then the Chicago Tribune went back and looked at the facts of the Pullen case, and both of them reported that that election had been decided by indented ballots. Then we got an affidavit from somebody who was involved in it.

"Now, I don't know what somebody has reported about that being the case or not being the case. What I do know is what was reported contemporaneously, and I know what the affidavit says. Now, in addition to that, I know what the case says, and the case talks about indented ballots."

In fact, the record shows that canvassers in the case explicitly rejected dented ballots even those with "definite" or "distinct" dents and the state high court affirmed their decision not to do so. The canvassers wound up counting only ballots on which voters had perforated the chads or dislodged the corners of the chads, allowing light to show through.

It's true that Mr. Boies did obtain an affidavit from one of the parties in the Illinois case to the effect that the Illinois case required counting dented ballots. But when Tribune reporters confronted the party Michael Lavelle with court records to the contrary, he filed an amended affidavit the very next day. "My mistaken recollection," Mr. Lavelle said, "was that the trial judge counted 'indented or dimpled ballots' where light did not shine through. In fact the trial judge only counted 'indented or dimpled ballots' where light could shine through."

Interestingly, there is no evidence that Democrats have filed the revised affidavit either with the Florida canvassing boards or with Florida courts, who have been making decisions based on Mr. Boies' misinformation to them. On Thursday a Washington public interest group, the National Legal and Policy Center, filed a complaint with the Florida Bar requesting an investigation of Mr. Boies "for apparent professional misconduct." According to Florida Rules of Professional Conduct, the group says, "If a lawyer has offered material evidence and thereafter comes to know of its falsity, the lawyer shall take reasonable remedial measures." Democratic Party officials have not returned numerous phone calls over the last two days in connection with the affidavit.

The problem for Mr. Gore here is that he can't win Florida without dimpled ballots. Apparently he's willing to give Mr. Boies' falsehoods his imprimatur if that's what it takes to get them. Florida courts and canvassers should insist on a higher standard.

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