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DECISION 2000 / AMERICA WAITS

Judge's 'Dimple' Ruling Is Another Setback for Gore

Courts: As a result, Palm Beach County board decides to not change how it evaluates validity of contested ballots. Hundreds of votes are at stake.

November 23, 2000|SCOTT GOLD and BOB DROGIN | TIMES STAFF WRITERS

WEST PALM BEACH, Fla. — In another blow to Vice President Al Gore, a Palm Beach County judge eased county standards for deciding the validity of so-called dimpled ballots Wednesday but stopped well short of issuing an order that could move hundreds of disputed votes to Gore's column.

The ruling by Circuit Judge Jorge Labarga further dismayed the Gore campaign, which was stunned earlier Wednesday by the decision in Miami-Dade County to abruptly end the manual recount of votes in Florida's most populous county. The rulings appeared to end Gore's best chance of overcoming Texas Gov. George W. Bush's statewide lead.

The case here focused on Democratic claims that the county canvassing board has unfairly invalidated hundreds of ballots in which voters had failed to punch out a chad--the paper filling the ballot hole--but had instead dented or "dimpled" it.

Gore's lawyers argued that dimples should be reexamined under far looser standards. They hoped another review would produce a surge of new votes for the Democratic nominee and resuscitate his flagging postelection chances.

But the three Democrats who make up the county canvassing board agreed in a brief meeting after the judge's ruling that they would not revisit any of the dimpled ballots that Democrats have earmarked for legal challenges. Nor do they see any need to drastically change their approach to scrutinizing additional flawed ballots in coming days, said Denise Cote, a county spokeswoman.

"They felt they were on target with his ruling, consistent with his ruling--and they are going to continue in the manner they have," Cote said. "They feel they have been doing it correctly."

The first round of the Palm Beach County recount was expected to end late Wednesday. The board will meet again Friday and through the weekend to consider thousands of disputed ballots before a Sunday night deadline set by the state Supreme Court.

In his seven-page ruling, Labarga tinkered with the county's current standard, suggesting that the canvassing board should be less restrictive when scrutinizing dimpled ballots. Such votes should be counted, he wrote, if the board can "fairly and satisfactorily" determine the voter's intent.

Until now, the county board has only counted a ballot if it presented "clear and convincing" evidence that a dimple meant a vote, and not a mistake, a change of heart or a flaw on the ballot.

Labarga said the board should not automatically throw out dimpled ballots, as it has done in most cases so far.

Democrats wanted Labarga to grant an injunction that essentially would have ordered the canvassing board to count discarded ballots unless the voter's intent was impossible to divine. But Labarga declined to do so.

The judge relied heavily on Tuesday's state Supreme Court decision and cited a section of that ruling that addressed the shortcomings of vote-counting machines:

"Although error cannot be completely eliminated in any tabulation of the ballots, our society has not yet gone so far as to place blind faith in machines," says the ruling quoted by Labarga.

Labarga's ruling amplified his previous decision in the case. On Saturday, he ordered the canvassing board to at least consider dimpled ballots. But Democrats complained that ruling was too broad, since the board wound up invalidating most of the disputed ballots anyway.

Broward County, the only other county still recounting its ballots, has used a less restrictive standard for classifying dimpled ballots as votes.

Democratic attorneys had prepared for the case here by setting aside ballots that were invalidated but which they claim should have been added to Gore's stack.

In all, Democrats have earmarked 557 disputed ballots, almost all of which are dimpled. Representatives of the Bush campaign have set aside 260 similar ballots.

In a three-hour hearing before Labarga early Wednesday, Democrats argued that the county's manual tabulation of votes has become "not so much a counting of votes as an exclusion of votes."

"The primary directive of your [previous] order was that they were to enfranchise, not disenfranchise, the voters of Palm Beach County," said F. Gregory Barnhart, a West Palm Beach attorney representing the Florida Democratic Party. "A vote in Palm Beach County now carries a presumption of unlawfulness and irregularity unless a voter can show, clearly and convincingly, otherwise."

Republicans countered that a liberal interpretation of marks on the ballot is akin to mind-reading and is hardly the appropriate method for choosing the next president.

"We don't just guess at what these voters intended," said Bush lawyer Barry Richard.

The Republicans won crucial support at the hearing from Charles Burton, a Democrat and civil court judge who chairs the county's canvassing board. Burton explained from the witness stand that the county is abiding by Labarga's earlier ruling and is considering every dimpled ballot.

But the vast majority of dimpled ballots have been thrown out, Burton said, because, "in all candor, determining intent from a ballot card is impossible."

If a voter punched out chads in other races but only dented the chad for president, Burton said, the board could not determine if the dimple meant a valid vote or a last-minute decision that neither candidate deserved a vote.

"We have to attempt to define what the clear intent of the voter is," Burton testified. "We have attempted, at the very least, to be consistent. Does it result in excluding? Perhaps."

At least one Democrat praised Labarga's ruling.

"The canvassing board is acting like a supercomputer," said Benedict P. Kuehne, a Miami lawyer for the Florida Democratic Party. "The canvassing board is attempting to do exactly that which . . . the machines tried to do. And that's not what Florida law says the human beings--the canvassing board--is supposed to do."

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