Suarez's right to hold office goes on trial

 

Judge will hear Carollo's claim of absentee vote fraud

Miami Herald Staff

In the minds of grand jurors, state authorities and former Mayor Joe Carollo, there is no doubt: Miami's Nov. 4 mayoral election was tainted by absentee ballots cast in the names of dead people, out-of-towners and the absent-minded.

There have been three arrests in the widening Florida Department of Law Enforcement probe and a tersely worded Miami-Dade grand jury report citing "evidence of outright fraud" in the city's election.

None of that will come into play today, when Circuit Judge Thomas S. "Tam" Wilson Jr. gavels Courtroom 6-1 to order, beginning a closely watched nonjury trial to determine whether there was sufficient fraud to call a new election or put Carollo in office. The trial could take weeks.

For Judge Wilson, only one factor will matter: evidence. The judge wants to see lots of it, and he wants to hear much of it from people sitting in the witness box.

Carollo, who filed the lawsuit one day after Suarez won the Nov. 13 runoff election, will try to prove that his seat was stolen, hoping to wrest the job from his rival, Mayor Xavier Suarez.

For Joseph Portuondo, who represents Suarez, that would be tantamount to a coup by judicial order. "Sore loser, " he pegged Carollo during recent pretrial maneuvering. The lawsuit names as defendants Suarez; David P. Leahy, supervisor of the Miami-Dade Department of Elections; and members of the election canvassing board.

ABSENTEE VOTES AT ISSUE

The focus is not on the Nov. 13 vote that vaulted Suarez into office. The suit claims that Carollo, who had a substantial lead in the machine balloting Nov. 4, was forced into a runoff by large numbers of absentee ballots that favored Suarez.

The absentees -- many fraudulent, according to the Carollo camp -- were enough to deny Carollo a majority, giving Suarez a second chance he didn't deserve, according to the lawsuit.

Kendall Coffey, Carollo's lawyer, expects a hard-fought case.

"We've worked around the clock for weeks to put a case together, " Coffey said. "We don't know in detail what [Suarez's] case will be. He will be challenging aggressively our evidence."

Portuondo did not return a phone call Friday seeking comment. But his client has made it clear he doesn't believe that tainted votes bolstered his campaign.

TWO-PRONGED CHALLENGE

In an interview and in court papers, Coffey said he intends to pursue a two-track approach:

* Prove that the number of tainted absentee ballots was so large that it swung the Nov. 4 election against Carollo.

"It's our burden to demonstrate fraud and illegality affecting a significant number of ballots to change the outcome of the election, " Coffey said.

* Show that illegality was widespread enough to have adversely affected the "sanctity" of the voting process.

"That is a more flexible standard that does not require numerical proof, " Coffey said.

The second theory tracks a 1984 Florida Supreme Court ruling that invalidated a 1978 Liberty County School Board election fraught with vote-buying. In Bolden vs. Potter, the court found that all absentee ballots had to be invalidated, even though a "specific number of invalid votes could not be established with mathematical certainty sufficient to change [the] result of the election."

REMEDY UP TO JUDGE

Assuming that Coffey prevails with one or both theories, Judge Wilson would next turn to the issue of what to do, if anything.

"We submit the remedy is the invalidation of all absentee ballots, and declaration of the [Nov. 4] election solely on a machine count, " Coffey said. "If that is not adopted, we would propose a new election."

That would mean not only a third electoral face-off between Carollo and Suarez, but the possible inclusion of three other candidates who appeared on the Nov. 4 ballot: Kenneth Merker, Juan Miguel Alfonso Perez and Janet Post.

"They're issues for the judge to decide, " Coffey said.

PARADE OF WITNESSES

He intends to introduce testimony from dozens of witnesses, some via depositions, others from the stand.

Documents and handwriting expert Linda Hart will discuss "over 200" alleged discrepancies in signatures between voter registrations and envelopes that contained the absentee ballots. Former FBI agent Hugh Cochran, the main investigative legman for Carollo, will offer details about the alleged use of false residences.

Kevin Hill, a statistician at Florida International University, will provide an analysis of absentee returns from various city districts. Christopher Warren, a government professor who also teaches at FIU, is scheduled to testify about the impact of tainted ballots on the political process.

According to a defense witness list submitted to the court, Portuondo plans to summon Carollo, Suarez, Leahy and members of the election canvassing board.

Portuondo is not pleased that the trial is proceeding at all.

During pretrial hearings, Judge Wilson denied his request to delay the case after Portuondo complained that there wasn't enough time to take the depositions of all of the people targeted by Coffey. The judge said evidence collection could occur as the trial unfolds, if necessary.

MAYOR'S VIEW OF CLAIM

To Suarez, there is very little evidence of fraud, despite statements to the contrary by Miami-Dade State Attorney Katherine Fernandez Rundle, the county grand jury and Leahy, the elections supervisor.

Leahy has called the Miami mayoral race "much worse" than the 1993 mayoral election in Hialeah, which was thrown out by a judge because of absentee ballot fraud. In that case, lawyers for the plaintiff had asked Dade Circuit Judge Sidney Shapiro to throw out the absentee ballots; he called a new election instead.

But in testimony before a state Senate committee that visited Miami specifically to learn about crooked voting, Suarez declared that he and his wife personally supervised a clean campaign.

"Certainly I can tell you there was no ballot fraud in my campaign, " he testified. "There was no fraud at all. I did not have a single fraudulent ballot cast by absentee."

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