ASHINGTON - A recount favorable to Al Gore in Florida's Broward County was partly the result of mistaken claims that dimpled ballots had been counted in a landmark Illinois case, lawyers for George W. Bush argued in a complaint filed yesterday against the county canvassing board.
The Republican nominee's lawyers said a Chicago-area lawyer erred in signing an affidavit that Gore's lawyers used to urge the Broward canvassing board to count the disputed dimpled ballots.
Republicans maintain that a misrepresentation never was corrected in Broward County and resulted in hundreds of votes being improperly counted for Gore. The vice president picked up 567 votes in the heavily Democratic county as a result of the recount, some 420 of which were from dented or dimpled ballots.
Bush lawyer William Scherer said Thursday that the legal team is taking the extraordinary step of contesting the Broward results as a way of protecting the Texas governor's interests if Gore gets a recount in other counties.
Gore is contesting the election results in three Florida counties. In his complaint, he raises the issue of dimpled ballots, arguing that Palm Beach County officials used the wrong legal standard when they excluded them. But Palm Beach's standards, Republican lawyers argue, were based on an accurate reading of the Illinois case.
At the center of the dispute is attorney Michael Lavelle, the former head of the Illinois and Chicago elections boards, who was involved in the decade-old Illinois case.
In a late-night phone call last week, Gore lawyers David Boies and Mitchell Berger asked Lavelle to send them an affidavit saying that a judge in Illinois counted indented or dimpled ballots in a state legislative race after determining the dimples accurately reflected the voters' intent.
Lavelle said Thursday that he complied because that is the way he remembered the 1990 case. He sent the affidavit early in the morning of Nov. 22, so Gore's lawyers could present it to the canvassing board as board members weighed what standard to use in evaluating dimpled ballots.
Lavelle now acknowledges that his memory was faulty and that the judge in fact ultimately excluded those ballots, accepting only those that were punched enough to let light shine through.
''I had filed a general affidavit, but I thought it was misleading,'' Lavelle said. He went to his office early the next day, on Thanksgiving, to send Gore's legal team a corrected affidavit. In it, he said he realized he ''was mistaken in my recollection of how the disputed ballots were reviewed.''
Lawyers for Gore said they believed they gave the corrected version to the board, but two Broward canvassing board members and a board attorney said Thursday they had never seen it.
''There wasn't a second one,'' said Andrew Meyers, Broward's chief appellate counsel, who was the canvassing board's lawyer and received filings from each side.
Broward County Court Judge Robert Lee, the board chairman, said Thursday he had no recollection of a second Lavelle affidavit, though he remembers one by Republican lawyer Burton Odelson stating Lavelle's initial filing was inaccurate.
Lee, however, said Lavelle's first filing had no effect on the board.
Broward Judge Robert Rosenberg, another board member, said through assistant Nadeen Barnett that he doesn't ''ever recall getting a revised affidavit.'' But he got a transcript from a court hearing in the Illinois case, he said through Barnett, and told fellow board members that a judge had in fact excluded ballots that didn't allow light to shine through.
Gore's lawyers tried to play down both Lavelle affidavits. Boies suggested he believed the original statement was not inaccurate, saying ''the record is clear that there were indented ballots counted'' in the Illinois case.
Charles Lichtman, the Florida attorney who headed Gore's Broward County effort, said Lavelle's first affidavit was a ''minor misrepresentation,'' and the board made clear it did not rely on the document.
