- The Washington Times - Thursday, November 30, 2000

Remember a couple of rulings ago when the Florida Supreme Court set its new and improved deadline for the tri-county hand-counts (superior, of course, to any deadline the legislative branch had come up with), overruled Florida Secretary of State Katherine Harris' lawful certification of the election results (the executive branch is overrated, anyway) and gave a winking nod to counting "dimples" for Gore? Not only did the court run roughshod over its co-equal branches of government with an extraordinary display of judicial hyperactivism, it also rested its big Dimple Decision on an utterly wrongheaded reading of an earlier recount case.
It is true that the Florida court set no standards on how to divine the intent of the voter, perhaps preferring to leave that to the extra-sensory powers of a vice president inclined to hear voices "of the people," at least. Instead, the court, as reported by the New York Times, cited at length and "with approval an Illinois Supreme Court decision mentioned in the Democrats' legal papers that said any indication of a voter's intent even a dented or partially punctured punch card ballot should be considered" (italics added).
Dimples away, said the Gore team, rubbing its hands at the prospect of counting dented (Gore) ballots as valid votes with the weighty imprimatur of judicial precedent. But oddly enough or maybe not so oddly enough no such legal precedent ever came out of Illinois, despite its mention "in the Democrats' legal papers."
In 1990, in the wake of a contested local election, the Illinois Supreme Court ruled that Cook County Circuit Judge Francis Barth had to examine 27 disputed ballots. Revisiting that case last week, the Chicago Tribune reported that the trial judge ultimately accepted eight additional votes: three with hanging chads and five with punctures. Six disputed ballots were withdrawn. Four with misaligned pinholes were discounted. And he rejected each and every one of the nine dented ballots (a.k.a. "dimpled" or "pregnant" chads) in question.
"The judge did not count the ballots that were indented because he could not determine the voter's intent," Burton Odelson told the newspaper. Mr. Odelson, an attorney, represented the 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."
"Everybody" is right beginning with the Florida Supreme Court (which, shockingly enough, seems to have relied solely on the Gore team's erroneous "legal papers"), most of the media, and such key players as Palm Beach County Circuit Court Judge Jorge Labarga, who invoked the Florida state court decision when ordering the local canvassing board to abandon its decade-old standards and count dimpled chads.
Of course, not even dimpled chads gave Mr. Gore the balloting boost he needed to close the gap with President-elect George W. Bush. But the case of the Dimple Decision remains perplexing. How was so crucial a case misrepresented to the Florida Supreme Court? Why? Might David Boies care to explain?
And there's more. Last Tuesday night, shortly before midnight in Illinois and after the Florida Supreme Court had ruled at around 10 p.m. EST Al Gore's top lawyers, David Boies and Mitchell Berger, telephoned Cook County attorney Michael Lavelle. Mr. Lavelle represented Penny Pullen, the ultimate winner in the 1990 case. According to the Chicago Tribune, the Gore attorneys woke Mr. Lavelle to ask him whether he would swear that he remembered dimpled ballots being counted. Mr. Lavelle said he signed two identical affidavits early the next morning attesting that, to the best of his memory, the judge had indeed counted dimpled ballots. He then faxed the affidavits off to Mr. Berger.
"In 10 years, memories can fade," Mr. Lavelle told the newspaper on hearing that the judge had in fact rejected the dimpled ballots. Perhaps. But why did the Gore attorneys want affidavits in the first place especially after the Florida Supreme Court had already ruled?

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