Vice President Gore's effort to convince Florida election officials to count indented or "dimpled" ballots as votes for him runs contrary to the practice in almost all jurisdictions that use the punch card system, with the notable exception of Texas, the home state of George W. Bush, his rival for the presidency.
In the 38-year history of punch card voting, only a small number of communities have counted these ballots as valid, voting experts said. R. Doug Lewis, executive director of the Election Center, a nonpartisan group that trains and certifies election supervisors, said that to his knowledge, with the exception of Texas, "no election official has counted a dimpled chad as a vote.
"Instead they tend to turn the question over to a judge, and historically courts around the country have said dimpled chads aren't clear enough for them," Lewis said, stressing that he is not referring to Florida.
However, a 1993 Texas law specifically provides for the possible inclusion of dimpled chads. Although it's not common, Texas judges on occasion do rule such ballots as countable votes, including in one recount that wrapped up this week in East Texas.
Lawyers for Bush say it's absurd to try to guess what a voter had in mind in only gently poking the chad, the perforated rectangular box next to a candidate's name, instead of puncturing it as required. Most likely, GOP officials say, such dimpled or "pregnant" chads are evidence that the voter put the pointed stylus on the box and then decided against that vote.
Gore supporters say that election officials should be allowed to find that some half-pressed chads represent a genuine effort to declare an electoral preference, noting that the punch card system can pose particular problems for voters who are elderly or inexperienced.
In any case, outside Texas, aggrieved candidates demanding a retallying of votes are rarely successful in getting dimples declared countable.
"I'm not aware it's ever happened anywhere" in California, said Ernest Hawkins, the registrar of voters in Sacramento and president of the National Association of County Recorders, Elections Officers and Clerks.
Election lawyers in Illinois say that the Gore team and the Florida Supreme Court were mistaken this week in citing an Illinois Supreme Court decision in 1990 as a precedent for ruling dimpled ballots are acceptable.
In a passage quoted by the Florida court, the Illinois judges said that voters should not be disenfranchised "simply because the chad they punched did not completely dislodge from the ballot." But the ballots at issue in the Illinois case involved mostly "hanging" chads much more detached from the punch card, those involved in the case said.
"The Florida Supreme Court misinterpreted the Illinois Supreme Court," said Burton Odelson, who represented Marjorie Mulligan in the heated recount at issue in that case. Mulligan was initially declared the winner of a GOP statehouse primary in suburban Chicago by 34 votes but after the court case was found to have lost by six.
After the Illinois court sent the contentious case back to the Cook County trial judge, he never counted any of the bulging chads as valid votes, Odelson and Mulligan said.
What appears to be the sole court case squarely backing Gore's position on chads--and a case the Democrats would most like to see replicated in Florida--was decided in 1997 by Massachusetts' highest court. It established that "dimpled" chads can be deemed valid votes for a candidate.
On Election Day in 1996, prosecutor William Delahunt lost by 215 votes to environmentalist Philip Johnston in the Democratic primary for a congressional seat outside Boston. But there had been a strange quirk: Vote-counting machines said 22 percent of the ballots were blank in some towns. Since this was the only race on the ballots, and there had been a severe thunderstorm that day, it was puzzling why voters would trudge to the polls to leave unmarked ballots.
After thumbing through the ballots, the judge ruled that Delahunt won, and an appeals court agreed, saying hundreds of indentations near his name were in fact attempted votes.
"We find unpersuasive Johnston's contention that many voters started to express a preference in the congressional contest, made an impression on a punch card, but pulled the stylus back because they really did not want to express a choice," the Massachusetts Supreme Judicial Court said.
In an interview, Delahunt said that raindrops had soaked the ballots, which then crumpled on drying and made it hard for voters to puncture the paper.
William Galvin, Massachusetts' secretary of state, banned punch card voting machines after the Delahunt election, so there have been no further legal tests of the justices' proposition.
But Galvin said election administrators in other states should consider dimpled chads as possible votes in a recount. A dimpled chad is akin to a check mark on a ballot that requires an X beside a candidate's name, he said. "Nobody would disqualify a vote just because somebody made an imperfect X," he said. "When you look at a card and a chad's been disturbed, you have to conclude the voter did it. You can detect the intent of the voter."
One major difference between the Delahunt situation and the Florida ballots, however, is that in Delahunt's case, there were no other elections on the punch card, meaning that the judge had no other votes to compare against the dimple for Delahunt. Some of the counties in Florida have said they will include dimpled chads cast in the presidential vote, but only if the votes in other races show similar indentations. If the other votes are fully perforated and only the presidential race is dimpled, however, the counties will not consider that a vote.
In making their case against including even such votes, Republican lawyers cite a 1984 Louisiana case in which a state appeals court ruled that Lloydell Mullican defeated George LeRay for Beauregard Parish (county) school board by two votes, and that a penciled check mark left near an unpunched chad beside LeRay's name was not a vote for him.
"This was not the prescribed method to mark the ballot," the court said. "We must hold that the ballot is void as the penciled check mark is a distinguishing mark which is susceptible of identification," and therefore violates the principle of secret ballots.
Another case cited by GOP attorneys is a 1973 suit involving a tie in a local election in DeKalb County, Georgia. The state's court of appeals ruled against counting one ballot in dispute, saying, "Because of the voter's failure to utilize properly the vote recorder by punching out the 'chad' with the instrument provided, the voter has disenfranchised himself."
Most state legislatures, including Florida, are silent or vague in laying out standards such as these that their counties are supposed to use in recounts. Of those states that do set statewide guidelines, election experts say that to their knowledge, Texas is the only one that specifically approves counting dimpled chads.
The state's 700-page Election Code states that in recounts in the 14 of 254 counties that use punch card machines, a ballot is usable if "at least two corners of the chad are detached" and "light is visible through the hole."
A vote also can be counted if election officials decide "an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote."
"That means election officials need to look at the whole ballot," said Ann McGeehan, the Texas director of elections. "If someone left a few faint marks on one part of the ballot but fully punctured" other chads, then the indented chads can't be counted because the voter clearly understood the need to push chads out, she said.
In one recount in East Texas this week, a handful of dimpled ballots were found to be authentic votes and helped persuade Bill Hollowell, a Republican candidate for state representative, that his vote protest was unwinnable.
Hollowell lost to incumbent Democrat Bob Glaze on election night by 2,080 votes, and asked for a recount in all three counties in the district. Smith County is the only one of the three that uses punch card machines, and County Judge Larry Craig was named head of the recount panel that went through the 11,121 ballots by hand.
After hours of work, the panel changed only 10 votes, leaving the results the same. About three dimpled ballots were thrown out because they were "just barely touched," Craig said. But he counted three or four others because "you could see light through it."
Two years ago, dimpled chads helped reverse an election in Texas. A Republican small-business owner named Rick Green of Dripping Springs asked for a recount in 1998 after losing to the incumbent Democrat by 20 votes out of 30,114 cast.
On appeal, recount teams from the Hays County election office flipped through the ballots for seven hours before moving 50 votes to Green's column, which gave Green the election by 36 votes.
Most of the 50 were ballots on which voters had tried to punch the box indicating support for the straight Republican ticket, but didn't penetrate the paper, said Joyce Cowan, the Hays election administrator.
"It's a voter error, but you can tell the voter's intent," she said. "Under Texas law, you give every benefit of the doubt to the voter. It was an honest and fair count."