David Boies walked onto the famed set of NBC’s “Meet the Press” in December 2000 and readied himself for what he expected to be a contentious interview. Boies, one of the country’s most well-known attorneys, had recently gained even more notoriety when Vice President Al Gore asked him to lead his legal team to argue for a recount in the state of Florida the month before. The team was preparing to file their legal brief before the Supreme Court in the case of Bush v. Gore, and Boies was doing a full-court press in the media to complement their effort.
After host Tim Russert pressed the vice president’s attorney on their legal strategy and how Boies felt about the case, he ended with a pointed question. “So you’re confident the Florida bar will take no action?” Russert asked, alluding to an ethics accusation recently filed against him. Republican lawyers had accused him of falsifying an affidavit to support the Gore team’s argument that so-called “dimpled chads” that appeared to be votes for the vice president should be counted for Gore.
Voters in a number of counties had experienced trouble using a stylus to punch a full hole through their ballots, and the legal team wanted the canvassing boards conducting a recount to consider the intent of the voter, not just the numbers the machines reported out. Boies, a slender man dressed in a plain blue suit, grinned as he gave his unequivocal response. “I’m very confident of that,” he said, tersely ending the interview.
Just a few weeks earlier, the Gore legal team had been on the hunt for a case that would support their argument that those dimpled ballots should be counted. With just a few hundred votes separating the two candidates, the eyes of the world were now on these attorneys to see just how the 2000 presidential election would be resolved, and they needed every bit of legal ammunition they could get. Not an election lawyer by trade, Boies had previously led important cases like the federal government’s antitrust action in United States v. Microsoft and was hired earlier that year to defend the music-sharing website Napster in a make-or-break lawsuit. Still, nothing compared to the intense scrutiny he was currently facing.
Both the Gore and Bush teams were in uncharted territory legally. Election law is a niche field, and there are few cases on recount issues, let alone ones as specific as how to judge the intent of a voter on paper ballots. So when searching for a case to support their proposition, the Gore lawyers were delighted to come across an article in the Chicago Tribune discussing an election decided by the Illinois Supreme Court in 1990 that shared many similarities with the issues now being debated in Florida. According to the Tribune, Illinois’s highest court had ordered “dimpled chads” be counted in a case called Pullen v. Mulligan. The precedent couldn’t bind the Florida canvassing boards to follow an Illinois standard, but it provided a persuasive argument for why they should anyway.
Without delay, the Gore team tracked down the Chicago attorney who worked on the case a decade earlier. Mike Lavelle was known as the dean of Illinois election lawyers. A former marine and native of Ireland, Lavelle was one of the most respected members of his field and known for his thoroughness and quick recall of the idiosyncrasies of state election law. An avid Chicago Cubs fan, he wore black, thick-rimmed glasses and had a receding hairline. Lavelle wrote many of the rules at issue in the Pullen v. Mulligan case, having served on the state and city of Chicago election boards in their infancy. He was woken up at 11 p.m. with a surprising and pressing ask.
On the other end of the line, one of Gore’s attorneys explained that they saw the Tribune story and wondered if he would sign an affidavit affirming what was held in the Pullen case. After then speaking with Boies, who further assured him how valuable an affidavit would be, Lavelle agreed. The next morning, Lavelle made some changes to the draft text provided by the Gore team and faxed it back to them in Florida.
The following day, Lavelle realized he had misremembered some of the Illinois Supreme Court’s holdings. The court hadn’t actually ruled that dimpled chads should be counted in all cases but said they should be counted if the intent of the voter could be ascertained. It was a crucial detail the team had unwittingly left out of the affidavit.
In some ways, the Illinois court’s holding hurt Democrats’ legal argument in Florida. Lavelle decided to flag it for the Gore team. “We’re f***d,” said one of the lawyers upon hearing the news. With attention magnifying every move the team made, they knew it wouldn’t slip by their counterparts working for Texas governor George W. Bush. Indeed, within a few days, a complaint was filed against Boies with the Florida bar accusing him of lying.
It was mostly a bogus claim given Boies had no knowledge that any information in the affidavit was false — he was merely putting forth what the article in the Tribune erroneously reported and Lavelle had inaccurately confirmed. Still, the media made a stink about it anyway. “Boies Will Be Boies!” crowed a headline in the New York Post.
The Pullen case became a central point of disagreement between the Bush and the Gore legal teams. One side asserted it meant dimpled chads should be counted while the other insisted it stood for exactly the opposite notion. In fact, Lavelle’s opposing counsel on the Pullen case in 1990, Illinois attorney Burt Odelson, had even been aiding the Bush team in Florida. Odelson had received a similar call from Governor Bush’s campaign chairman Don Evans, and he eventually flew down to Florida to assist with arguments before some of the county canvassing boards. The two friends found themselves again on opposite teams advocating for the same things they’d fought over ten years prior.
As recounts went forward across the state of Florida, each canvassing board began adhering to a different standard based on these arguments. This meant the recount process varied by county, which would eventually be the reason the Supreme Court cited for ruling in Bush’s favor. The disagreement around the Pullen case would become one of the dominoes in a long chain of events that would eventually determine who ascended to the presidency.
For example, Broward County officials relied in part on the Pullen case for their rationale in counting dimpled chads, something the Bush team claimed resulted in Gore unfairly gaining hundreds of votes. Put simply, a little legislative campaign the country knew nothing about helped caused the confusion and chaos that eventually led to a Bush victory.
During the Florida recount, the national media took a new look at the Illinois case, interested in the mechanics of the court’s holding. But what many missed in focusing on the legal aspects of Pullen v. Mulligan was the story surrounding the actual election ten years earlier. The case involved a recount battle from a state legislative race in suburban Chicago during the March 1990 GOP primary.
A Republican primary in a sleepy suburban district outside Chicago might not sound very interesting, but the campaign had been a media circus of its own at the time. It was a state legislative campaign that found itself in the spotlight as a national proxy war on the issue of abortion. It was a legal battle that would eventually be cited as precedent in the most important election case of our country’s history. And it was a story that illustrates the behind-the-scenes machinations of state and local politics that is often overlooked.
Penny Pullen was a longtime conservative leader in the Illinois House. Well-known in Republican circles for her appointments to several commissions by Presidents Ronald Reagan and George H. W. Bush, her biggest devotion was to the cause of restricting abortion. Her strong views on the issue would eventually make her a national target following a Supreme Court decision called Webster v. Reproductive Health Services that reenergized pro-choice activists in 1989. Her primary challenger, Rosemary Mulligan, was a single mother, a paralegal, and a staunch pro-choice advocate. Mulligan faced many obstacles in her life, but she would find success in her eventual career in politics.
Neither Rosemary Mulligan nor Penny Pullen is a household name today, nor are their raucous political battles remembered in the annals of American political history. Despite this, their story is emblematic of the important work performed by state legislators across the country each year.
Much of this work, because it lacks the glamour of national politics, goes entirely unnoticed. Voter turnout in local elections is almost always dwarfed by that in the larger, seemingly more important campaigns. Less money is spent on local races and most candidates don’t have the resources to put up flashy TV ads or full-scale field operations. Many state legislators have little to no staff once elected. Yet most of the lawmaking that actually affects Americans’ day-to-day lives happens in state capitals, not in Washington.
There are thousands of books, movies, and TV series about presidential campaigns. Stories abound of high-profile Senate races and of campaigns for governor. But very few accounts exist of the campaigns down ballot. Down Ballot is one of those stories — and it had a huge impact far beyond just the 55th state legislative district of Illinois.
On average, state legislatures introduce 23 times as many bills as the U.S. Congress annually, close to 130,000 bills each year. Today, a list of our country’s most contentious issues could easily be confused for the agenda of a state legislature. Religious liberty or freedom from religion. Voting rights or voter ID. The freedom to carry or stricter gun control. Protecting women in sports or protecting the rights of transgender athletes. And yes, abortion.
If you look close enough, there is a Rosemary Mulligan and a Penny Pullen advocating passionately for either side of these issues in every state across the country. They’re watching carefully. The only question is: Who’s watching them?
Adapted from Down Ballot: How a Local Campaign Became a National Referendum on Abortion by Patrick Wohl. Copyright 2024 by the Board of Trustees of the University of Illinois. Used with permission of the University of Illinois Press.
