“It’s now time for us to move on with other business,” declared Gore legal honcho David Boies from the front yard of his Armonk, New York home. With Al Gore’s gracious concession, it will be easy for the nation to do just that. Letting go of what happened in Florida, however, will not be easy for everyone. The Miami Herald has already announced that it will conduct its own examination of more than 10,000 contested ballots in Miami-Dade County, an exercise that is likely to produce “votes” for Mr. Gore, since the liberal Herald will set its own rules.
If the Florida controversy is going to be prolonged, maybe there is another piece of unfinished business that should dealt with, as well. Mr. Boies has yet to acknowledge that he misled Florida courts and two canvassing boards, on a critical legal point, namely the counting of “dimpled” ballots in a 1990 Illinois case.
The Illinois circumstances were bizarre enough to rival this year’s. The race was between Penny Pullen, a state legislator, and her GOP primary challenger Rosemary Mulligan, which resulted in a tie. State law called for a coin toss that Ms. Pullen lost. She sued, and the Illinois Supreme Court ordered a state court judge to conduct a recount that Ms. Pullen won by six votes. The judge counted ballots with punch holes through which light could shine. He excluded “dimpled,” or what he called “dented” ballots, those with an indentation but no hole. The trial judge’s actions were upheld by the Illinois Supreme Court.
The conservative Ms. Pullen’s lawyer was Michael Lavelle, a Democrat who in 2000 contributed to Mr. Gore. He received a late-night phone call from Mr. Boies’s operation on Nov. 21. The next morning, Mr. Lavelle faxed to Mr. Boies an affidavit asserting that the trial court counted seven “dimpled or indented ballots” for Pullen and one for Mulligan, giving Pullen her six vote margin. Mr. Boies and company quickly put the document to work, reportedly using it in proceedings of the canvassing boards and circuit courts in both Broward and Palm Beach counties.
In Broward, the Democrats on the canvassing board changed their positions and the board started counting many more “dimpled” ballots, reportedly resulting a net gain of 567 votes for Mr. Gore, 420 of which resulted from “dimpled” ballots.
After being contacted by a Chicago Tribune reporter, Mr. Lavelle produced a corrected affidavit on Thanksgiving, Nov. 23, just a day after producing his first. It read, in part, “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 ‘dimpled or indented’ ballots that light could pass through.” Mr. Lavelle says he faxed his second affidavit to the Florida Democratic Party, which apparently sat on it, even though Broward hand recounts were still under way.
Mr. Lavelle’s corrected affidavit seems to have fallen into a black hole. There is no evidence that Mr. Boies, or anyone else, has filed it with any of the tribunals to which the original affidavit was presented, or sought to correct the record in any way.
These facts have been laid out in detail in media reports. Mr. Boies has been asked directly about them by several journalists. Passing on every opportunity to at least correct the public record, Mr. Boies has instead responded with double-talk and obfuscation. On last Sunday’s “Meet the Press,” Mr. Boies became visibly irritated when asked by Tim Russert about a request for a Florida Bar investigation into professional misconduct made by the National Legal and Policy Center. Mr. Boies responded with another diatribe when asked a similar question by Tony Snow on “Fox News Sunday.”
As to the substance of the issue Mr. Boise claimed that Mr. Lavelle, his position fine-tuned during a deposition by Bush lawyers subsequent to his second affidavit, now believes that his corrected affidavit was unnecessary. In other words, Mr. Boies suggests that Mr. Lavelle has now recanted his recantation.
Mr. Boies’ failure to correct the record is not an academic point. Every lawyer has an ethical obligation to tell the truth. Further, the deception may have contributed to a gain of more than 500 Gore votes in the total certified on Nov. 26, a figure that Gore partisans will undoubtedly use as a baseline during inevitable efforts to prove Mr. Gore really won Florida.
Peter Flaherty is president of the National Legal and Policy Center, which filed a request for an investigation of David Boies with the Florida Bar on Nov. 30.