Illinois case offers shaky precedent
By Jan Crawford Greenburg
and Dan Mihalopoulos
Tribune Staff Writers
November 23, 2000
A landmark Illinois Supreme Court ruling hailed by Vice President Al Gore's lawyers may not be the legal home run they believe will aid his quest to win Florida's 25 electoral votes and the White House, an analysis of the ruling shows.
Gore's lawyers focused on the Illinois ruling because the Florida Supreme Court quoted it at length Tuesday night in its decision to allow manual recounts in selected counties to continue. The lawyers suggested that the mention of the Illinois case was a sweeping directive to count controversial "dimpled" ballots, in which ballots were indented but not punched through.
Democrats have fought hard to have those ballots counted in the official tally, believing that most of them would fall into Gore's column and give him the presidency. They said the Florida Supreme Court's ruling and its citation of the Illinois opinion bolstered their arguments.
But that Illinois case should not give Democrats any confidence that dented ballots will be counted in Gore's favor. That's because the Illinois court actually affirmed a trial judge's order to exclude dented ballots, since he had decided he could not reasonably determine the voters' will by examining the ballots.
In fact, in the Illinois case, the dented ballots were not counted at all.
"The judge did not count ballots that were indented because he could not determine the voters' intent," said attorney Burton Odelson, who represented 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."
In the Illinois case, the court ruled that a trial judge must look at all the disputed ballots to determine the will of the voters. That's what the Democrats picked up on, stressing that the Florida court approvingly quoted its Illinois equivalent: "Voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot."
Late Tuesday, the Gore legal team pressed the issue further, asking a Cook County attorney involved in the Illinois case to sign an affidavit saying that dented ballots were ultimately approved in the Illinois case. The affidavit the attorney signed Wednesday apparently was mistaken in its assertion that such ballots were counted.
In fact, in its ruling the Illinois Supreme Court approved the procedures that Cook County Circuit Judge Francis Barth used four days earlier when he refused to accept any dented ballots, even those with, as he said, "definite" or "distinct" dents. Instead, Barth counted most of the ballots that had been perforated enough for light to shine through them, even if the paper tag known as a chad had not fallen out.
"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," Barth said during a 1990 hearing after examining one disputed ballot, which he discarded.
In rejecting the dented ballots, Barth looked at the condition of the rest of the ballot. If the voter had clearly punched out chads in other contests, he said, the voter knew he had to punch a hole for his vote to count. As such, he said he couldn't make the logical leap that a dent should count as a punch in another race.
"It's not clearly ascertainable what the voter intended," Barth said during the Sept. 17, 1990, hearing in which he ruled on the disputed ballots.
In evaluating the ballots, Barth relied on guidelines in a 4-day-old Illinois Supreme Court order. The high court told Barth to look at the ballots not counted by machines because the chad was not completely dislodged. It then said he should determine whether the voter's intent "can be reasonably ascertained" and, if so, to count the vote.
That guidance is similar to that a Florida judge gave Palm Beach County on Wednesday, saying officials could accept the dimpled ballots if voter intent was clearly discernible. Gore's lawyers had urged the trial judge to rule that a discernible indentation on or near a chad must be recorded as a vote.
But Florida Circuit Court Judge Jorge Labarga, again picking up language used by the Illinois Supreme Court a decade ago, instead ruled that a dimpled ballot could be tallied only when officials "fairly and satisfactorily ascertain the intent of the voter."
Using that same guidance, Barth rejected the dents, saying at the 1990 hearing he began "with the assumption that a voter will understand that there must be a punch in the ballot." Barth acknowledged that it could be difficult for voters to read punch cards and determine whether they had punched the right holes. But he then continued: "I believe that there is at least a minimum standard that they be cognizant and aware of the fact that it is a punch card."
At one point, Barth noted that lawyers were arguing dents to the point that "fibers were disturbed." But that wasn't enough in one ballot, particularly since the voter had successfully punched the ballot for other candidates, he ruled.
Of the 27 disputed ballots the state Supreme Court ordered Barth to examine, he rejected nine dented ballots because, as he said, the dents were insufficient to prove the voter's intent.
He rejected four others with pinholes that were misaligned, accepted three "hanging chads," in which the perforation was partially attached, and approved five ballots punctured by pinholes. Six disputed ballots were withdrawn.
Barth raised practical reasons why he couldn't reasonably ascertain the will of the voter in a ballot that had a dent for one candidate, but clear punches for other candidates in other races.
"Can a voter make a dent in the ballot and yet change [his] mind, and decide not to vote for that candidate?" Barth asked attorney Michael Lavelle, lawyer for Republican Penny Pullen, at the hearing.
"Yes. I wouldn't say that's not impossible," Lavelle responded. "That's quite possible."
Late Tuesday night, Gore's top lawyers enlisted Lavelle's aid in the vice president's legal battle. He said attorneys David Boies and Mitchell Berger, a Florida lawyer, awoke him with a phone call shortly before midnight to find out whether he would swear that he remembered the trial judge counting indented ballots.
Lavelle, a former chairman of the state and Chicago elections boards, said he signed two identical affidavits early Wednesday and faxed them to Berger, who had told him he needed the papers to file in two county courts. In the affidavits, he said that to the best of his recollection, he believed the judge counted indented ballots, giving Pullen the victory.
"In 10 years, memories can fade," Lavelle said later Wednesday when told Barth had, in fact, excluded them. "I couldn't remember the details. The affidavit was more general than specific."
Barth, now an appeals judge in Chicago, declined to comment on Wednesday.
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Gore's point man argued against dimples in 1996
By Joel Engelhardt, Palm Beach Post Staff Writer
Wednesday, November 22, 2000
Amid the swarm of the world press outside the county Emergency Operations Center, Dennis Newman leads the charge to find new votes for Al Gore in the dimples of the Palm Beach County ballot.
In his distinctive Boston accent, the slightly rumpled man in the slightly rumpled suit recites erudite arguments to explain over and over to the breathless media why a tiny indentation on a paper ballot could determine the leader of the world's most powerful nation.
His argument, put simply, is that dimples show the true intent of the voter. Voters caused those dimples. Dimples should count.
Four years ago, in a similar election spat, Newman took a much different stand. Employing his best legal tactics on behalf of a Democrat holding a slight lead in a primary race for Congress, Newman scoffed at the idea of counting the tiny indentations as votes.
Like the Republicans watching now, Newman wondered out loud how ballots that had been handled over and over, in recount after recount, could still be impartially judged. Couldn't the ballots -- and therefore the votes -- be affected by all that touching and grabbing?
"I don't think they are handled with kid gloves," he said in The Boston Globe.
A pregnant bulge on a computer card falls far short of the proof needed to show a voter's intent, he said then.
He even embraced the position forged last week by the Palm Beach County canvassing board: To determine a voter's intent, the entire ballot must be taken into account. In other words, if a ballot doesn't have dimples in several different races -- not just the presidential race -- the voter probably didn't intend for that presidential dimple to be a vote.
In 1996, Newman argued that the congressional race, while heated, wasn't the most important thing on the minds of all 50,000 voters in the district and many may have purposefully skipped it. Now, he insists, Palm Beach County voters didn't stand in line on Election Day only to skip the most important race on the ballot.
Four years ago, he pointed to confusion on the ballot -- two men by the same name ran for different offices -- and said it may have forced voters to stop, press, then pull away without casting a vote.
Now, he seriously doubts the indentations could have been made by someone pausing over the name -- and then choosing to skip the race for president.
Newman and at least three other Boston-area attorneys -- all with election law experience -- have been here or in Broward County fighting for every presidential vote. Among them is Haskell Kassler, one of the lawyers on the other side in Newman's Massachusetts case.
They've heard the opposition to dimples before. In Newman's case, he's even spouted it. But no longer. He lost.
He represented Philip Johnston, the hardluck candidate who won the Election Day count in September 1996 by 266 votes but lost the judicial review less than a month later by 108.
"The court has ruled and I've seen the light -- through the chad," Newman said in an interview Tuesday.
Newman, 50, ran Gore's campaign in Massachusetts. He flew to West Palm Beach just two days after Election Day turned into topsy-turvy Election Night and Florida went up for grabs.
Even before chad became a household word, Newman knew it could come down to dimples.
Nestled among Palm Beach County's 462,000 presidential ballots were 10,300 on which no vote was cast for a presidential candidate. In past national elections, when millions of votes are cast, 10,000 lost votes in Palm Beach County would have been of no consequence. But not this time.
Machines, Newman knew, wouldn't count the votes if the voter didn't press hard enough to sever the chad, allowing light to shine through. But judges -- some judges, at least -- would.
He knew.
He watched four years ago as Massachusetts Superior Court Judge Elizabeth Donovan counted 956 ballots the machine couldn't count. She awarded 177 to Johnston and 469 votes to his opponent, William Delahunt.
Newman waited while the Massachusetts Supreme Judicial Court affirmed her decision.
He was there two years later when the state banned the use of punch-card ballots, the same voting system that Palm Beach County voters have been using since the 1970s.
So dimples aren't something new to Newman. He bristles when he hears Republicans say the Democrats are trying to change the rules midway through the game.
On Nov. 11, the morning of Palm Beach County's sample hand count of four precincts, the Democrats turned in a memorandum of law explaining why dimples should be counted.
Two days later they filed suit.
At the time, Newman was a silent observer, working behind Miami lawyer Ben Kuehne, who earned his election law stripes in helping to throw out Miami's 1997 mayoral election.
But Kuehne has gone behind the scenes, working on the legal challenges and leaving Newman in the network glare.
When Circuit Court Judge Jorge Labarga ruled last week that dimples must be considered, Democrats believed they had won.
But days later, without an explosion of anger, there was Newman, patiently explaining that no, the dimples still weren't being counted. The canvassing board, he said, failed to follow the judge's direction. And no, the Democrats were not changing the rules in the middle of the game and really all they wanted was a fair and accurate count.
And Monday night, Newman found comfort deep within a Florida Supreme Court ruling extending the deadline for the hand counts. The court cited a case that held voters should not be disenfranchised because the chad they punched did not completely dislodge from the ballot.
Now Newman's appearance outside the counting center is an excuse for cameramen and reporters to swarm. He does live shots for Fox News. He is not stylish. He is part lawyer, part lifelong political operative who back in 1992 helped run the late Sen. Paul Tsongas' White House bid.
He's an advocate and he's working for his client, the vice president of the United States.
He closes with a tale, a cautionary fable about lawyering. Abe Lincoln is arguing as an attorney before a judge. The judge points out that Lincoln argued one way in the morning and took the opposite tack in the afternoon. "Were you right this morning?" the judge wants to know.
"Your honor, this morning I'm not sure. But I'm sure I'm right now," Lincoln replies.
Staff researchers Geni Guseila and Monica Martinez contributed to this story.
joel_engelhardt@pbpost.com
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Bush team reviews Oregon voting records
Wednesday, November 22, 2000
THE ASSOCIATED PRESS
PORTLAND, Ore. -- A 10-person team that Republican George W. Bush sent to Oregon to review election and voter records says it has found some voters registered in more than one county in Oregon's Nov. 7 presidential election.
With nearly all ballots counted, Democrat Al Gore led Bush by 6,595 votes -- well above the legal threshold of roughly 2,800 votes that would trigger an automatic recount.
Leslie Goodman, a Bush spokeswoman, said a GOP search of voter rolls in 17 of Oregon's 36 counties found 4,000 people registered in more than one county. "It means that there is a systemic problem," she said.
Others questioned that conclusion, including Marion County Clerk Al Davidson, a Republican.
"I find it hard to believe that's what their data show," Davidson said.
Davidson noted that Oregon county clerks all submitted their voter rolls to a private contractor last spring, who checked the lists for duplications. Clerks followed up when they found problems.
"I think that as close as this election is, both camps are looking for every advantage they can get," Davidson said.
So far, the Bush campaign hasn't decided whether to seek a recount in Oregon, Goodman said, acknowledging that Gore has a "growing margin" as the counting winds down.
Jim Edmunson, state Democratic Party chairman, called the Bush effort "futile," noting that Oregon was the only state in the nation to conduct its election entirely by mail, requiring each voter to sign his or her ballot.
If any voters tried to vote twice, Edmunson noted, their signed ballot envelopes would be a dead giveaway. "There would be proof of it and they would be prosecuted," he said.
As of last Friday, no complaints had been filed, said Paddy McGuire, chief of staff to Secretary of State Bill Bradbury.
Final election results won't be available until after counties submit their totals to the secretary of state on Nov. 27. The secretary of state then has until Dec. 7 to release final results.
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Anger at court may not vanish
By John Kennedy and Gwyneth K. Shaw
Tallahassee Bureau
Published in The Orlando Sentinel on November 23, 2000
"Make no mistake: The court rewrote the laws. It changed the rules, and it did so after the election was over."
-- George W. Bush
Republican presidential candidate
TALLAHASSEE -- Angry Republican lawmakers in Florida worked feverishly Wednesday to sidestep or block the state Supreme Court`s presidential ballot ruling, claiming justices crossed a constitutional line and jumped into legal turf reserved for legislators.
Led by House Speaker Tom Feeney of Oviedo and Sen. Daniel Webster of Ocoee, lawmakers began floating several ideas that would give the Republican-dominated Legislature a key role in deciding the presidential election in Florida.
One move being considered would allow the Legislature to choose the state`s 25 electors, assuring a victory for George W. Bush.
A final strategy likely will emerge by Sunday -- the deadline justices set for hand recounts to be completed in key South Florida counties.
The reaction by leading Republicans on Wednesday capped a longstanding feud between the conservative Legislature and the state`s high court.The friction sparked a flurry of legislation last spring aimed at giving lawmakers and Republican Gov. Jeb Bush more authority over the court. In the end, the effort failed.
Still, nothing has compared with the outrage Republicans showed Wednesday at the court`s decision that could tip the election toward Democrat Al Gore.
The justices, all appointed by Democratic governors, are moving away from merely interpreting the laws, Republicans complained. Now, they said, the court has created law, which is a violation of constitutional separation-of-powers provisions.
"What we have here is a court that actively stomped on our constitutional rights to set policy," Webster said. Even Republican candidate George W. Bush lashed out at Florida justices during an appearance in Austin, Texas.
"Make no mistake: The court rewrote the laws," Bush said. "It changed the rules, and it did so after the election was over."
The high-court setback for Republicans, while enormous, was not isolated. Republicans have been on the losing end of Supreme Court decisions in recent years. "I think the real question here is, `What is the Legislature`s relationship with the Supreme Court going to be like when all of this is over?` " said Drew Lanier, a constitutional-law expert at the University of Central Florida.
Racing from live television appearances Wednesday to closed-door sessions with legislative staff, Webster urged legislative leaders to ask a federal court to block the court`s ruling, saying it was clear that justices tread into law-making territory reserved for the Legislature.
Meanwhile, Feeney, a former running mate of Jeb Bush`s, spent the day rallying House members behind a proposal to allow the Legislature to choose the state`s 25 representatives to the Electoral College.
Under federal law, these electors must be chosen by Dec. 12, a deadline threatened by the presidential stalemate.
With no electors, Florida`s presidential votes would not be counted. But federal law gives the Legislature authority to appoint electors if a state has "failed to make a choice on the day prescribed by law."
That`s what Feeney and his top lieutenants seized on.
They began trying to woo a reluctant Senate to embrace the idea of calling a special legislative session in early December to name electors.
Securing the votes of Florida`s electors on Dec. 18, when the Electoral College convenes to actually vote, would give Bush the presidency.
Democrats were outraged.
"A special session . . . should not be called for the purpose of overturning the will of the people or intervening in this presidential election," said Senate Democratic Leader Tom Rossin of West Palm Beach.
Feeney, however, said he has asked a "prominent law professor," whom he declined to name, to give him advice on the issue before he asked Senate President John McKay, R-Bradenton, to join him in calling a special session.
McKay said only that he wanted more time to consider the move, which several top Republican senators fear could backfire since it could be viewed as blatantly political.
Lance deHaven-Smith, associate director of Florida State University`s Institute of Government, said Feeney`s move is high-risk. It would give Republicans the presidency, but it could lose the trust of Florida`s voters.
For his part, Webster, a former House speaker, is opposed to the special-session idea, saying it would fail. Whatever legislation was approved allowing selection of electors, Webster said, would be appealed to the state Supreme Court.
After Tuesday night`s ruling, Webster holds no hope of success there.
Webster said he thinks lawmakers should forge ahead and sue in federal court. The separation-of-powers claim would center on the issue that justices were creating new law by setting new deadlines Sunday for completing hand recounts.
He was particularly incensed by the court`s dismissal of Republican Secretary of State Katherine Harris` decision to uphold a seven-day deadline contained in state law for certifying election returns.
Lanier, the UCF law expert, said the animosity between lawmakers and the court is certain to yield harsh legislation during next year`s legislative session.
"I wouldn`t be surprised if the Legislature did something that restricted the court`s jurisdiction as a punishment for overreaching," Lanier said.
David Cox of the Tallahassee bureau contributed to this report.
Posted Nov 22 2000 9:30PM
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Congress gets ready for its potential role
By LANCE GAY
Scripps Howard News Service
November 21, 2000
WASHINGTON - Members of Congress are dusting off papers and searching for precedents in case the contested presidential election has to be decided by a joint convention of the House and Senate on Jan. 5.
Rep. David Price, D-N.C., a former Duke University political science professor, said the congressional procedures for handling the Electoral College vote are unclear.
And, he noted, the new Congress meets on Jan. 5 to receive the Electoral College's returns and has only until the constitutionally mandated Jan. 20 swearing-in date to sort it all out.
"When they moved up the date, it compressed all this,'' said Price, noting that until the 20th Amendment was adopted in 1933, the new president didn't take office until late March.
The certification of Electoral College votes is normally a routine procedure: It took the special "joint convention" of the House and Senate just 24 minutes to do the job in 1997.
But it took Congress 11 weeks in 1877, when Florida, Louisiana, Oregon and South Carolina returned two certifications for electors. Congress turned the election disputes over to a special commission to determine which certification would be accepted. The election wasn't resolved until March 2, when Rutherford B. Hayes was elected president.
Price said that there are few guidelines for Congress to follow in the event of a disputed Electoral College vote, and that basic disagreements over what the Constitution means could drag out the process.
One disagreement involves the 12th Amendment, which states that the winner is the one who gets "a majority of the whole number of electoral votes," which now totals 538.
But, Price noted, if Florida fails to certify its 25 electoral votes, does the 12th Amendment mean that the winner must still get a 270-vote majority, or a majority of the reduced number (257) reflecting Florida's failure to certify its results?
"There's an argument then that the Supreme Court would have to adjudicate," Price said, but even that is uncertain because the Constitution gives the court no role in certifying Electoral College votes.
Stanley Bach, a legislative specialist with the Congressional Research Service, cited two precedents:
- In 1873, the disputed electoral votes of Arkansas and Louisiana won by Horace Greeley, who died after the election, were not included in the tally of the whole number of Electoral College votes given to President Ulysses Grant. And in 1865, only two of the three Nevada electors cast their votes to be counted.
- In 1961, Hawaii certified two slates of electors after Richard Nixon was declared the victor in certified returns, but John Kennedy won the state on a recount. The House and Senate agreed to take Kennedy's electors.
Price said there is another problem: Who presides over the special joint session?
Under current procedures, the presiding officer is the president of the Senate - in this case Al Gore, who is legally vice president until Jan. 20. In 1969, then-Vice President Hubert Humphrey, declined to preside over the joint session that considered electoral votes in his race with Richard Nixon.
Then there are procedural difficulties. No debate is permitted in the joint meeting, but a lone senator and a lone member of the House can file written objections, which would require the House and Senate to deliberate separately.
The last time this happened was 1969, when Sen. Edmund Muskie, D-Maine, Humphrey's running mate, objected that a North Carolina Democratic elector had decided to vote for George Wallace. Both the House and Senate deliberated and decided North Carolina's laws did not bind the elector to vote the winning ticket, so the elector's vote stood.
If Congress cannot determine the winner of the Electoral College, the election of the new president is left to the House of Representatives, which votes delegation-by-delegation, with each state getting one vote each.
"First one to 26 wins," said Rep. Martin Frost, D-Texas. "You keep counting ballots till somebody gets to 26."
Currently 28 delegations in the House are controlled by Republicans.
The Senate has no role in the presidential election under this procedure, but picks the vice president.
But if lawmakers can't decide by Jan. 20, the Constitution has provided another way out: The next in line of succession is House Speaker Dennis Hastert, R-Ill., who would have to resign his House position to take the job.
If Hastert declined, the post would then go to the Senate's president pro-tem, Strom Thurmond, R-S.C., age 98.
"President Strom Thurmond?" said Yale Law School professor Akhil Reed Amar. "Don't laugh.''
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Harris to be open Sunday for vote totals
By S.V. Date, Palm Beach Post Capital Bureau
Thursday, November 23, 2000
TALLAHASSEE -- With disputed recounts set to wrap up in South Florida this weekend, Florida Secretary of State Katherine Harris's office is planning on keeping hours Sunday to accept vote totals, as ordered by the state Supreme Court.
Officials for Harris said the Division of Elections will be processing revised vote counts Sunday but did not offer any details of exactly when Harris would certify Florida's presidential election.
The Florida Supreme Court on Tuesday ordered county elections officials to submit revised recount numbers by 5 p.m. Sunday if Harris's office is open at that time, and by 9 a.m. Monday if the office is closed over the Thanksgiving weekend.
Some state legislators speculated Wednesday that Harris might be able to accept the results but not certify the election Sunday -- thereby allowing lawmakers to try to hold a special session to specify whether "dimpled ballots" would or would not be counted.
But a source in Harris' office said that strategy had not been discussed with Harris.
Harris and her staff watched the Supreme Court ruling unfold late Tuesday from their Capitol offices, watching with dismay as the seven justices roundly criticized her decisions regarding manual recounts.
s_v_date@pbpost.com
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