- The Washington Times - Thursday, November 30, 2000

How does one divine the presidential preferences of Florida voters who have expressed them either inadequately or not at all? Philosophers and prophets might dismiss ballot dents and dimples as so many dents and dimples. But not famed lawyer David Boies. The onetime Microsoft adversary sees in them a desperate if flawed attempt to communicate with ballot machines, alien signals he would be happy to interpret for those unlearned in such mysteries.
Speaking on behalf of Vice President Gore, whose presidential hopes depend on the exercise, Mr. Boies offered an explanation earlier this week complete with court citations: "We think that the [Florida] circuit court will apply the standard that the Florida Supreme Court indicated should be applied," he told reporters gathered round in Tallahassee, Fla., Sunday, "and that's the standard applied in Illinois, in Massachusetts, and in many other states, which as you look to find the intent of the voter, and if you find a discernible indentation on or near the chad, that is taken as a vote, because there is no other reasonable explanation for the existence of that indentation."
The problem is that Mr. Boies' answer, which he also gave to the Florida Supreme Court, was wrong. On Nov. 23, three days earlier, the Chicago Tribune reported that the Illinois case proved nothing of the kind. Worse, at least from Mr. Gore's perspective, the case actually upheld a decision by elections officials to reject "dimpled" ballots those in which voters had only indented the squares of paper (chads) next to candidates' names. So anyone who now has doubts about the practice of reading votes into indentations namely supporters of certified President-elect George W. Bush need only cite the case that Mr. Boies himself brought up, as a precedent for throwing the dimpled ballots out.
At issue in Illinois was a contested election between two state representatives a decade ago. The state supreme court ordered a circuit court judge to look at 27 ballots not counted by machines because voters had not completely dislodged the chad. It further ordered the judge to see if a voter's intent "can be reasonably ascertained" and, if so, to count the vote.
Lawyers for the two candidates promptly fell to debating the validity of ballots in which, the judge noted, "fibers were disturbed," an updated version of disputes over how many angels could dance on the heads of pins. But in the end the circuit judge refused to accept any dented or dimpled ballots, even those, the Tribune reported, with "definite" or "distinct" dents. He counted only those through which light was showing, either because the voter had perforated the chad or because he had dislodged some of its corners.
"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," the judge said during a 1990 hearing. He discarded the disputed ballot. Although the Illinois high court did use language that both Mr. Boies and the Florida Supreme Court cited approvingly to the effect that voters "should not be disenfranchised where their intent may be ascertained with reasonable certainty" neither mentioned that Illinois justices approved the lower court's ruling not to count dented chads. (For the record, The Washington Post reports that almost all jurisdictions still using the ballot punch system decline to count dimpled ballots as votes too.)
Mr. Boies didn't stop with misleading Florida justices and everyone else, though. He compounded the error (let's be generous) by soliciting a false affidavit to the effect that the Illinois court insisted on counting dimpled ballots from one of the officials in the Illinois case whose memory was 10 years out of date. Prompted by Tribune reporters as to what actually happened, the official hastily prepared a revised affidavit dated Nov. 23. To date, however, Mr. Boies has neglected to set the record straight and, as the press conference a few days later showed, he continues to mislead reporters and everyone else about the substance of the Illinois ruling. Furthermore Republican officials say they can find no evidence that Democrats have filed the revised affidavit either with courts or canvassing boards now operating on incorrect information. Democrats did not return calls about the status of the revised affidavit.
Interestingly, Mr. Boies' error hasn't received nearly the attention that, say, Microsoft received when one of its executives had to acknowledge flaws in a company videotape under what James Warren of the Chicago Tribune calls the "adroit" questioning of Mr. Boies. "Even a layman without knowing who Boies is," Mr. Warren wrote one day after the Tribune set the record straight on the Illinois court case, "might come away admiring a piercing intellect, impressive command of facts, talent for concise, simple explanation and penchant for the dramatic moment."
Mr. Boies may have many things to lend himself to journalists, clients and courts, but command of the facts isn't one of them.
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