A recount favorable to Vice President Al Gore in Florida’s Broward County was partly the result of mistaken claims that a landmark Illinois case counted dimpled ballots, lawyers for Texas Gov. George W. Bush will argue in a complaint to be filed Friday against that county’s canvassing board.
The Republican nominee’s lawyers said they are prepared to have a Chicago-area lawyer testify that he erred in signing an affidavit that Gore’s attorneys used to urge the Broward canvassing board to count the disputed dimpled ballots.
Republicans maintain that misrepresentation never was corrected in Broward and resulted in hundreds of votes being improperly counted for Gore. The vice president picked up 567 votes in the heavily Democratic county as a result of the recount, some 420 of which were from dented or dimpled ballots.
Bush attorney William Scherer said Thursday that the legal team is taking the extraordinary step of contesting the Broward results, even though Bush was certified as the winner of Florida’s 25 decisive electoral votes, as a way to protect the Texas governor’s interests if Gore gets a recount in other counties.
Gore is contesting the election results in three Florida counties. He raises the issue of dimpled ballots in his complaint, arguing that Palm Beach County officials used the wrong legal standard when they excluded them. Republican lawyers argue that Palm Beach’s standards were based on an accurate reading of the Illinois case.
At the center of the dispute is attorney Michael Lavelle, the former head of the Illinois and Chicago elections boards who was involved in the decade-old Illinois case. In a late-night phone call last week, Gore attorneys David Boies and Mitchell Berger asked Lavelle to send them an affidavit saying that a judge in Illinois counted indented or dimpled ballots in a state legislature race after determining the dimples accurately reflected the voter’s intent.
Lavelle said Thursday that he complied because that is the way he remembered the 1990 case. He sent the affidavit early the next morning, on Nov. 22, so Gore’s lawyers could present it to the canvassing board as board members weighed what standard to use in evaluating dimpled ballots.
Lavelle now acknowledges his memory was faulty and that the judge in fact ultimately excluded those ballots, accepting only those that were punched enough to let light shine through them.
“I had filed a general affidavit, but I thought it was misleading,” Lavelle said. He went to his office early the next day, on Thanksgiving, to send Gore’s legal team a corrected affidavit. In it, he said he realized he “was mistaken in my recollection of how the disputed ballots were reviewed.”
Lawyers for Gore said they believed they gave the corrected version to the board, but two Broward County canvassing board members and a board attorney said Thursday that they never saw it.
“There wasn’t a second one,” said Andrew Meyers, chief appellate counsel for Broward County, who was the canvassing board’s lawyer and received filings from each side.
Broward County Court Judge Robert Lee, the canvassing board chairman, said he had no recollection of a second Lavelle affidavit, though he remembers one by Republican lawyer Burton Odelson stating Lavelle’s initial filing was inaccurate.
Lee, however, said he paid no attention to any of the affidavits filed and that Lavelle’s first one had no effect on the board.
Broward Judge Robert Rosenberg, another board member, said through assistant Nadeen Barnett that he doesn’t “ever recall getting a revised affidavit.” But he got a transcript from a court hearing in the Illinois case, he said through Barnett, and told fellow board members that a judge had in fact excluded ballots that didn’t allow light to shine through.
Gore’s lawyers tried Thursday to downplay both Lavelle affidavits. Boies, in a midmorning news conference, suggested he believed the original statement was not inaccurate, saying “the record is clear that there were indented ballots counted” in the Illinois case.
Charles Lichtman, the Florida attorney who headed Gore’s Broward County effort, said that Lavelle’s first affidavit was a “minor misrepresentation” and that the board made clear it did not rely on the document.
“That affidavit was so minuscule in terms of the totality of what had been before the board,” said Lichtman, who added that he believed a corrected affidavit subsequently was submitted to the board. “It was completely irrelevant. I’m even surprised it merits a story.”
And Meyers said late Thursday that a second affidavit was unnecessary because he believed Boies had accurately explained the legal standard to the board in its hearing Nov. 22, as it was considering ways to evaluate the disputed ballots.
At that hearing, Boies told the board that Lavelle’s affidavit indicated the Illinois courts counted ballots with a “discernible indentation.” In response to a Rosenberg question about how to determine the voter’s intent when “we see no light, there’s just a mark,” Boies said the Illinois case “says you look for an indentation.”
In fact, the judge in the Illinois case rejected ballots with mere indentations, according to the transcripts from a Sept. 17, 1990, hearing in the case.
Moreover, the Illinois judge didn’t accept every ballot with light shining through. In making his decisions, he considered whether he could determine the voter’s intent by, among other things, seeing if the voter had made similar marks elsewhere on the ballot.
Scherer, who headed the Bush effort in Broward County, said Thursday that the misrepresentations about the Illinois case and the Democrats’ failure to set the matter straight will be a large part of the campaign’s complaint to be filed Friday in Tallahassee.
The complaint will come the same day Bush lawyers will urge the U.S. Supreme Court to rule that the Florida Supreme Court exceeded its authority when it allowed hand recounts to continue in Broward, Palm Beach and Miami-Dade Counties.
Bush lawyer Theodore Olson will ask the justices to rule that the state high court violated federal law on the appointment of presidential electors when it ordered those recounts to continue beyond a deadline in Florida law for counties to report election results. If the U.S. Supreme Court agrees, it could diminish the need for a separate challenge to the Broward results.
To cover all bases, Bush’s lawyers also will proceed with the challenge against Broward County, Scherer said. In that complaint, the Bush team will first argue that Broward County should not have begun manual recounts in the first place. The lawyers will argue that previous manual recounts in the county have been conducted because of fraud or a failure of the voting machines, and that neither occurred in this case, Scherer said.
They also will point to the board’s decision Nov. 9 against conducting a recount in a contested congressional race between Democrat Elaine Bloom and Republican incumbent Rep. E. Clay Shaw as evidence that it ignored established law when it decided to conduct the presidential recount. Bloom had requested the recount in the race, which she lost by 596 votes out of some 210,000 votes.
Moreover, the Republicans will argue that once the board began its recount, it used the incorrect legal standard for assessing the dimpled ballots.
Scherer said the Republican complaint will refer to the Illinois case, Pullen vs. Mulligan, and suggest that Democrats misled the canvassing board to rely on an incorrect legal standard.
The Gore team began focusing on the Illinois case immediately after the Florida Supreme Court announced its opinion Nov. 21 that hand counts could continue in some Florida counties and mentioned the Illinois case in its decision.
Boies and Berger then turned to Lavelle, seeking the affidavit that dimpled ballots were included in Illinois. Lavelle talked with the Tribune for a story that ran in some editions Nov. 21 and said that those ballots indeed had been included in the final count and made the difference for his client, Republican incumbent Penny Pullen.
But a Tribune analysis of the Illinois case later showed that Cook County Circuit Judge Francis Barth had not counted merely dented ballots, even those with “distinct” or “definite” indentations.
The Illinois Supreme Court later approved Barth’s methods, which resulted in dented ballots being excluded if the voter had not made other similar marks and there was no light shining through perforations. In approving Barth’s methods, the Illinois Supreme Court did not reveal he had excluded the dimpled ballots. It simply emphasized that Barth was right to look at all the disputed votes to determine the will of the voters.
That’s the language the Florida Supreme Court picked up on in its opinion, quoting that determining the will of the voter was paramount and that voters should not be disenfranchised because the chad they punched “did not completely dislodge from the ballot.”
Scherer said Thursday that he believed Lavelle had been “completely honorable” in the matter.
