November 23, 2000 Thursday FINAL EDITION

SECTION: A SECTION, Pg. 1A

HEADLINE: LABARGA RULES DIMPLED CHADS SHOULD BE CONSIDERED AS VOTES

BYLINE: Kathryn Quigley, Palm Beach Post Staff Writer

WEST PALM BEACH - In a rare moment, everyone agreed they liked Circuit Judge Jorge Labarga's ruling Wednesday.

They just couldn't agree on what it meant.

Democrats and the county canvassing board had not been able to concur on when "dimpled" chads should be counted as votes.

So the Democrats asked Labarga to make a ruling - his second dimple decision in a week - with Al Gore's chances of victory perhaps riding on it.

Hours after the 4:30 p.m. ruling Wednesday, the Democrats and the board still didn't agree about the dimples.

Both sides claim the seven-page order as a victory, showing how it can be interpreted different ways.

The board had been disqualifying dimpled chads if other races on the same ballot had clearly punched holes. The board reasoned that, if voters could make firm punch holes for other candidates, a dimple for president must mean they hadn't made up their mind.

Dimpled ballots should be considered as possible votes, Labarga ruled. More importantly, he said, "The canvassing board cannot have in place a policy which provides for a per se exclusion of any ballot."

Democrats want as many dimples counted as possible because the dimples are favoring Gore. Democrats contended Wednesday night that the board's policy of throwing out dimpled ballots when other races have clean holes is, in fact, a "per se exclusion" that Labarga has banned.

"The people have won with Judge Labarga's ruling," said Democrat lawyer Ben Kuehne.

Judge Charles Burton, the chairman of the canvassing board, said that its practice is not a "per se" exclusion.

"It's my view we have been complying with that standard," Burton said.

The Republicans? They liked the ruling, too.

"We are comfortable with the standard being applied and the Democrats have no other place to go," Wallace said.

In Wednesday's ruling, Labarga once again stated that the canvassing board must do its very best to determine the voter's intent in each hand-counted ballot.

"Conversely, the canvassing board must reject any vote in which it cannot discern the intent of the voter," Labarga wrote.

Burton - a county court judge now placed on the witness stand - said in court on Wednesday that not only do chads come in different varieties - swinging door, hanging door - but so do dimples. Burton said the dimpled chads have appeared in such a wide variety of "dents and dings and marks" that he often scratched his head and wondered, "How did this happen?"

Kuehne said the ruling doesn't allow the canvassing board to continue as before. He said Labarga's ruling made clear that certain dimpled votes must be counted, especially those in which the ballot had only a dimple mark for the presidential candidate but hole punches for every other candidate. The canvassing board had been automatically excluding those kinds of ballots.

"That's a vote," Kuehne said. "Let's stop the namby-pamby."

Labarga provided a road map and the canvassing board must follow it, Kuehne said.

The lawyers will argue their cases again Friday - this time, before the canvassing board itself as the manual recount hurtles toward a Sunday deadline.

Last week, Labarga threw out the canvassing board's 10-year-old rule of automatically excluding dimples. He said the board should examine each one individually - but Democrats believed the board still wasn't validating enough of the dimpled chads.

During Wednesday's hearing before Labarga, the Democrats asserted that thousands of voters would be disenfranchised unless every opportunity was made to allow their votes to be considered valid. Attorney Greg Barnhart told Labarga he needed to make more clear which votes the canvassing board should count and which it should not.

"If we fail now," Barnhart said, "I submit respectfully that history shall judge us harshly."

Burton pleaded with Labarga for help in determining which votes should be considered valid.

"In all candor, determining intent from a ballot card is impossible," Burton said. "Would I like for Judge Labarga to tell us 'Canvassing board, if there's an indentation, you count it. Or if there's only one, don't count it'? Absolutely. And we would follow whatever your honor says."

But Labarga's ruling was not that specific, instead leaving that power in the hands of the three-member canvassing board.

In a footnote to his ruling, Labarga mentioned a 1996 Massachusetts Supreme Judicial Court decision that said an "indentation made on or near a chad should be recorded as a vote for the person to whom the chad is assigned." That ruling "may be of assistance to the board," Labarga wrote.

Democratic lawyers took that to mean the dimples should be counted. But County Attorney Denise Dytrych said the board shouldn't place weight on a footnote.

"If he intended that to be his ruling he would have said it in the body of the ruling," she said.

Meanwhile, the 4th District Court of Appeal said Wednesday it was premature to hear a challenge to a separate ruling by Labarga. On Monday, Labarga ruled that holding a revote in Palm Beach County would be unconstitutional. Democratic voters wanted a new vote because of what they claim was a confusing and illegal ballot.

The appeal court said it will not rule on the question until Florida Secretary of State Katherine Harris certifies the tally Sunday. Lawyers for several of the voters want the case to be heard by the Florida Supreme Court instead of the appeal court. The appeal court will hear arguments at 11 a.m. Monday on whether the case should be transferred to Leon County.

Staff writers Marc Caputo, Joel Engelhardt, John Pacenti and Susan Spencer-Wendel contributed to this report.