- The Washington Times - Friday, December 1, 2000

Gore attorney David Boies yesterday continued to tout an Illinois court case as proof that dimpled ballots must be counted, even though an affidavit he submitted to Florida officials on the case was retracted.
Republicans say it is one of several incidents in which Vice President Al Gore's campaign, and the candidate himself, are misstating fundamental facts to get ballots counted their way and sway public opinion.
In the 1990 Illinois case, a trial judge ruled in a contested state election that dimpled or indented ballots should not be counted because the judge was unable to discern the voter's intent. The Illinois Supreme Court subsequently upheld his ruling.
A Democratic lawyer in the case, Michael Lavelle, submitted a sworn affidavit at Mr. Boies' request that stated the trial judge had, in fact, counted dimpled ballots. Democrats, who want local election boards to count indented ballots to gain more votes for Mr. Gore, presented the affidavit to the Broward and Miami-Dade county election boards.
Mr. Boies made a personal appearance Nov. 22 before the Broward board, whose two Democratic members then voted to change standards and count dimpled chads. The result: Mr. Gore picked up 585 votes.
Mr. Lavelle retracted his affidavit the following day and faxed a corrected one to Florida Democrats.
The correction, however, was not passed along to the three-member Broward board, according to a Republican attorney and a Broward election official. The corrected affidavit surfaced at the very moment Broward's two Democrats were counting indented ballots for Gore over the objections of a Republican board member.
Yesterday at a press conference in Tallahassee, Mr. Boies continued to promote the Illinois case.
"Now, I don't know what somebody has reported about that being the case or not being the case," Mr. Boies said, referring to news stories questioning his interpretation of the Illinois case.
"What I do know is what was reported contemporaneously, and I know what the [first Lavelle] affidavit says," he added. "Now, in addition to that, I know what the case says, and the case talks about indented ballots. So whether or not there were or were not indented ballots and I think the record is clear that there were indented ballots counted the fact is that the law is that indented ballots are relevant, and that's the proposition for which the Florida Supreme Court cited that case."
Mr. Lavelle, in his corrected affidavit, wrote, "My mistaken recollection 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' that light could pass through."
Ballots in which light can be seen through the chad (the point where a voter selects a candidate by using a stylus to punch out the box) are typically described as being detached, not dimpled.
Burton Odelson, a Bush team lawyer, said he is happy that Mr. Boies continues to cite the Illinois case.
"We agree with him," Mr. Odelson said. "I think the Illinois case should be used because it holds that you do not count indented chads. So I'm glad that Mr. Boies agrees with the Bush team."
Mr. Odelson, who represented Mr. Bush during the Broward recount, said Democrats never forwarded the revised Lavelle affidavit to the board as required.
"If this was a judicial proceeding, there would be some lawyers very worried about their own law licenses," he said. "But it was not a judicial proceeding. It was a canvassing board."
The National Legal and Policy Center in Washington said yesterday it has filed a complaint with the Florida Bar Association asking it to investigate Mr. Boies and another Gore attorney, Mitchell W. Berger.
"Using a false affidavit to influence events in and out of court is an outrage," NLPC Chairman Ken Boehm said. "If that is in fact what an investigation of Boies and Berger finds, then they should be severely disciplined."
A spokesman for Circuit Court Judge Robert Rosenberg, the lone Republican on the Broward board, said Mr. Rosenberg does not recall ever seeing the revised affidavit submitted to the canvassers.
The spokesman said he obtained a copy of the Illinois trial transcript and through that learned that the first affidavit was false.
A Gore team spokesman in Florida did not return a reporter's phone call yesterday.
Republicans contend the Illinois citation is not the only time Gore advocates have stretched the facts. Some examples:
Mr. Gore and his surrogates consistently charge that Republicans tampered with ballots in Florida's Seminole County.
In fact, Democrats in Seminole have filed suit charging that a Republican Party worker added voter identification numbers to absentee ballot applications, not the ballots themselves.
Republican lawyers say that, while helping the voter fill out the application may have been a technical error, it is not sufficiently serious to have a judge throw out all absentee ballots, as the Gore team wants. The GOP says the state Supreme Court has ruled that a missing ID number is not reason enough to disqualify an absentee ballot.
Mr. Gore often has asserted that there are thousands of votes in Florida that were never counted.
"All the votes haven't been counted yet," Mr. Gore told CNN. "There are more than 10,000 that have never been counted."
In fact, of the four predominately Democratic counties in which Mr. Gore requested hand recounts, three did an initial count, a machine recount and then a manual tally. Miami-Dade County did not complete its hand count, deciding it could not meet a state Supreme Court deadline of Sunday at 5 p.m.
But Dade did do an initial machine count and then a machine recount of all ballots. The machines kicked out about 10,000 as non-votes because the box for president was not dislodged by the voter.
A number of Democrats have charged that Republican protesters intimidated the Dade county board into stopping its hand count.
"This is a time to honor the rule of law, not surrender to the rule of the mob," said Sen. Joseph I. Lieberman, Mr. Gore's vice-presidential running mate.
Republican protesters tried to force their way into a counting room after the Democratic board decided to count some 10,000 contested ballots out of public view. The board later met in public, heard arguments from Republican and Democratic lawyers, and then voted to stop the manual count.
Since that time, board member Judge Lawrence King and chairman David Leahy have said the protest played no role in the board's decision.
Mr. Gore and his surrogates repeatedly say they want "all votes counted." But Democrats made a concerted effort to throw out absentee military ballots based on sometimes minor technicalities.
In the current Gore lawsuit contesting Mr. Bush's 537-vote Florida lead, the Democrats want a judge to further disqualify military ballots that some counties submitted as amended returns to the Secretary of State by the 5 p.m. Sunday deadline.

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