Spinning the Supreme Court

Bush team criticizes Florida court's interpretation of an Illinois case, when it was actually referring to a different decision.

By Jake Tapper

Published November 22, 2000 6:17PM (EST)

"Talking points" sent out Wednesday morning by the campaign of Gov. George W. Bush to Republicans and supporters clearly indicate a desire to slam Tuesday night's Florida Supreme Court decision in favor of allowing hand recounts as a "decision by seven Democrat justices." That's to be expected.

What's more surprising, however, is talking point No. 2, which is at best an extremely misleading statement about the Illinois Supreme Court decision about which ballots should be considered legitimate votes -- which "chad" is kosher -- that was included in Tuesday night's Florida Supreme Court ruling.

"In response to inquiries about whether dimpled chads can be counted as votes, the Florida Supreme Court cited the Hartke case in Illinois," the Bush talking points state. "But the Illinois case didn't talk about dimpled chads at all. It involve [sic] hanging chads, the standard that these three counties began using and the standard that they are now seeking to change."

It is true that the "Hartke case" doesn't talk about dimpled chads. It doesn't talk about chads at all. And actually, the "Hartke case" -- Roudebush vs. Hartke -- isn't even an Illinois Supreme Court case, it was a 1972 U.S. Supreme Court decision that allowed a recount in Indiana.

But the relevant reference was to a 1990 Illinois Supreme Court case cited on page 35 of Tuesday night's 43-page Florida Supreme Court decision -- Pullen vs. Mulligan, which indeed allowed some indentations on the ballot to be considered as votes.

But, according to a Nov. 23 story by the Chicago Tribune, not all of the indented, or dimpled chads were considered votes. "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 judge in the 1990 case, Cook County Circuit Judge Francis Barth, said about one ballot. The Illinois matter is neither the dimpled chad-bashing precedent that the Bushies would have you believe, but nor is it the acceptance of all things dimpled as the Gore camp would have it.

Neither the Bush nor the Gore campaigns returned calls for comment.

The issue of which chad to accept is of paramount importance for both campaigns since the margin of Bush's lead is so slim -- 930 votes as of Wednesday morning -- a more liberal interpretation of chad could mean the difference in the election. Thus, both camps have been arguing for and against broad chad rulings in the court of public opinion.

The talking points repeat comments made late Tuesday night by Bush's man in Tallahassee, former Secretary of State James Baker, who referred to "an Illinois case which in effect blessed the standards -- blessed the idea of using -- of counting dimpled chads ... The Illinois case cited on page 36 or 39 -- I don't know which it is -- but it was the Hartke case -- didn't talk about dimpled chads at all. It involved hanging chads, the standard that these three counties or four counties began using, and the standard that they are not seeking to change."

Reached on Wednesday morning on Capitol Hill, a senior Republican staffer expressed dismay when told that the Bush talking points had included the false statements about the Illinois ruling.

"They got an argument they can make down in Florida," the GOP senior staffer said. "They don't have to lie."

The relevant ruling -- Pullen vs. Mulligan, not Hartke -- was made after seven-term state Rep. Penny Pullen, an anti-abortion activist, lost a March 1990 GOP primary challenge by 31 votes to pro-choice Republican paralegal Rosemary Mulligan. A July recount resulted in a tie, and -- believe it or not -- a coin toss gave the nomination to Mulligan.

That September, the state Supreme Court ordered a lower court to include in the tally eight ballots out of 30 that weren't counted on election night because the chad hadn't been dislodged from the ballots.

According to the Chicago Tribune story, many of the dimpled chads weren't dimpled enough for Judge Barth. In the end, eight disputed ballots were deemed OK -- three "hanging chad" ballots, and five others in which all four corners of chad were still attached to the ballot, but a pinhole had punctured the chad.

Seven of these eight disputed ballots went to Pullen, one to Mulligan. Pullen won with 7,392 votes to Mulligan's 7,386.

"Lawyers for Mulligan had argued that the ballots should not be counted because trying to determine whom the ballot was cast for would be pure speculation," one news account at the time reported. "Pullen's lawyers had said they should be because there were pinholes through the chads or indentations indicating voter intent, and the court agreed."

The court ruling, cited Tuesday night by the justices' Florida counterparts, stated, "The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot.

"Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter's disability or inadvertence," the Illinois high court wrote. "Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect."

At the time, the Chicago Tribune editorial board -- which recently endorsed Bush over Gore -- endorsed the court's findings. "The high court agreed, properly, with Pullen's lawyers, declaring that pinholes or other indentations in the chads that reasonably indicate voter intent should be counted, even if this requires a hand count instead of machine tabulation. That decision gave Pullen the edge. It was also a victory for the concept that the obvious intent of voters counts more than rigid technicalities."

Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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