November 23, 2000 Thursday, CHICAGOLAND FINAL EDITION

SECTION: News; Pg. 1; ZONE: N

LENGTH: 1169 words

HEADLINE: BUSH TURNS TO TOP U.S. COURT;
REPUBLICAN WANTS FLORIDA'S MANUAL RECOUNT STOPPED;
ILLINOIS CASE OFFERS SHAKY PRECEDENT

BYLINE: By Jan Crawford Greenburg and Dan Mihalopoulos, Tribune Staff Writers.

BODY:
   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.