November 30, 2000, Thursday, Final Edition

SECTION: PART A; NATION; ELECTION 2000; Pg. A16

LENGTH: 700 words

HEADLINE: Lawyer withdraws chad vote affidavit, Democrats don't;
Illinois case cited for dimple counts

BYLINE: Rowan Scarborough; THE WASHINGTON TIMES

BODY:
   A Democratic lawyer has retracted a sworn affidavit that the Gore campaign
solicited and then used to persuade two election boards to count slightly
indented punch-card ballots as votes.

   The lawyer, Michael Lavelle, faxed a corrected affidavit Nov.  23, but
Democratic attorneys never forwarded the document to either the Broward or Palm
Beach County election boards, according to a Republican attorney monitoring
ballot hand counts in those two jurisdictions.

   Democratic attorneys used Mr.  Lavelle's first affidavit to persuade the
Broward board to change its policy and count ballots whose punch-hole chad had
been merely indented, but not detached in any way.

   The counting system produced a net gain of 565 votes for Vice President Al
Gore, cutting into George W.  Bush's slim lead for Florida's decisive 25
electoral votes.

   "It gave them what they needed to continue doing what they were doing to
count nonexistent votes," said Burton Odelson, who represented Republicans
during the Broward hand count.

   "It was the most massive ghost voting I've ever seen," the Chicago-area
lawyer said.  "I sat there and watched the most massive vote fraud I've ever
seen."

   The all-Democratic Palm Beach County board adopted a stricter standard, but
did count some indented, or dimpled, ballots.  According to the latest figures,
which the board announced yesterday, Mr.  Gore picked up 188 votes in Palm Beach
County's manual count.

   The state election board did not accept any hand-counted votes from Palm
Beach County because the board missed the state Supreme Court's 5 p.m. Sunday
deadline for submission.

   The Lavelle affidavit was personally requested by Gore attorney David Boies
for submission to the state Supreme Court and the canvassing boards. It involved
a 1990 election case in Cook County, Ill., in which the two Republican primary
candidates had their election decided by a county judge and then the state
Supreme Court.

   Mr.  Lavelle, who represented one of the candidates, first said in the sworn
statement that the trial judge ruled that dimpled ballots must be counted and
that the Supreme Court upheld his decision.

   In fact, the Illinois trial judge rejected the Gore argument and backed Mr.
Bush's contention that indented chads should not be counted.  The Illinois trial
judge considered only punch cards in which the chad had been detached and light
could be seen through the hole.

   The Illinois Supreme Court later upheld the judge's decision, although it did
say that election boards could consider dimpled ballots as one factor among
others in determining voter intent.

   In his corrected affidavit addressed to the Florida Democratic Party, Mr.
Lavelle said he realized his mistake after a Chicago Tribune reporter read him
the original court transcript.

   Said Mr.  Lavelle in his second affidavit, "My mistaken recollection was that
the trial judge counted 'indented or dimpled ballots' where light did not shine
through.  In fact, the trial judge only counted 'indented or dimpled ballots'
that light could pass through."

   Authorities on punch-card voting say ballots through which light can be seen
are "detached chad" and ballots that have only indented chad are "dimpled."

   The Tribune reported the trial judge as saying, "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."

   A Broward County official, who asked not to be identified, said Broward had
used a standard of counting only ballots with two corners of a chad detached.
But after Mr.  Boies appeared before the board Nov.  22 and cited the Illinois
case, the board's two Democrats, Judge Robert W.  Lee and Suzanne N.
Gunzburger, voted to adopt a more liberal standard and count indented chad.

   Republicans contend that such dimpled ballots show that the voter chose not
vote in the presidential contest.

   A phone message left for Judge Lee yesterday was not immediately returned.

   Mr.  Odelson said the Republican legal team plans to cite the Illinois case
and Mr.  Lavelle's affidavits in Leon County Circuit Court, where Mr. Gore is
contesting Mr.  Bush's 537-vote certified victory in Florida.