quarterly-report.com Political Commentary by James R. Audet

November 25, 2000
37th Anniversary of the internment of John F. Kennedy at Arlington National Cemetery.

Damn... damn... damn!

A quote of Henry Higgins from "My Fair Lady" sums up this writer's realization that the Florida Supreme Court ("Court") erred in its November 21 Opinion in which it cited a 1990 Supreme Court of Illinois ruling involving disputed ballots.  Consequently, so called dimpled or "pregnant" ballots should not be counted.

In its per curiam ruling, the Court extended the deadline for the filing of certified election results with the Florida Secretary of State, thus permitting the recounts to continue.  In citing the Illinois ruling, the Court gave it the weight of law, as was evidenced on Friday, November 24, when a Florida Circuit Court ruled that dimpled ballots may be tallied in the recount underway in Palm Beach County.

The Court cited, in pertinent part, from the Supreme Court of Illinois decision in Pullen v. Milligan:

The purpose of our election laws is to obtain a correct expression of the intent of the voters.  Our courts have repeatedly held that, where the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect even though the ballot is not strictly in conformity with the law...  To invalidate the ballot which clearly reflects the voter's intent, simply because a machine cannot read it, would subordinate substance to form...

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. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect.

Pullen v. Milligan, 561 N.E.2d 585, 611 (Ill. 1990)(citations omitted).

In copyrighted story dated November 23, the Chicago Tribune reported that the Illinois Supreme Court's decision in Pullen v. Milligan was to affirm a trial court's order to exclude dimpled ballots.  The trial judge was presented with 27 disputed ballots, of which nine were dimpled.  The trial court judge was unable to determine reasonably the voter's will by examining the ballots.  All the dimpled ballots were rejected.

Why did the Florida Supreme Court cite the Illinois decision without an appropriate footnote to distinguish it?  The citation guaranteed -- proven by the November 24 Circuit Court order -- that the dispute over dimpled ballots would continue.  Was it misfeasance, the speed of the process, or misrepresentation of Illinois case by one of the parties to the litigation?

This writer retracts a previously stated position on dimpled ballots.  Such ballots should be excluded.

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