A Miami-Dade ordinance outlawing the collection of more than two absentee ballots is unconstitutional, claims a Hialeah man accused of voter fraud.
In court documents filed Wednesday, Sergio “El Tio” Robaina is asking a Miami-Dade judge to throw out two misdemeanor counts of violating the ordinance.
Prosecutors say Robaina illegally collected ballots, and filled out two against the wishes of two voters, one of them a woman with dementia. Robaina insists he was just helping elderly citizens who could not deliver their absentee ballots themselves.
In an effort to crack down on perceived election fraud,
The Miami-Dade County Commission passed the ordinance in 2011, making the possession of more than two absentees ballots a misdemeanor punishable by up to 60 days in jail or a fine of up to $1,000.
“The Miami-Dade Commission has used a sledge hammer to deal with a flea bite,” his lawyers wrote, saying the ordinance violates Robaina’s right to political expression and deprives well-meaning voters of their right to vote.
The long-expected legal move comes after an election season that prominently featured the use of absentee ballots. Miami-Dade voters in Tuesday’s presidential election cast at least 207,000 absentee ballots, a sizeable jump from 177,000 overall cast four years ago.
Elections officials also have blamed the flood of last-minute absentee ballots for long lines at polls Tuesday and delays in tabulating votes.
The use of the ballots also roiled the August primary as Miami-Dade police’s public corrupt unit began investigating potential ballot abuses.
One woman, Deisy Cabrera, 56, was caught with at least 31 absentee ballots, and stands accused of filling out a ballot for a terminally ill woman at a nursing home, police said. She is awaiting trial.
Robaina’s case stems from 164 absentee ballots police say were dropped off at a post office by an aide to Miami-Dade Commissioner Esteban Bovo, who has not been accused of wrongdoing.
According to police and prosecutors, one voter said Robaina filled out the ballot for him and his dementia-stricken mother.
Robaina, the uncle of former Hialeah Mayor Julio Robaina, in interviews with El Nuevo Herald has shifted blame on Bovo’s aide, Anamary Pedrosa — who is now a key witness against him.
Robaina is charged with two counts of violating the ordinance, and two felony counts of voter fraud.
This election season, investigators have used the 2011 ordinance as a probable cause-stepping stone to investigate felony charges of voter fraud.
According to a motion filed in Miami-Dade Circuit Court, the elderly Robaina has for years lent a “helping hand to fellow citizens” who could not deliver ballots for themselves.
The ordinance, while well-intended, criminalized a “courier function,” lawyers Thomas Cobitz and Joseph Klock wrote in their motion.
“Not only is Sergio’s admirable community service criminalized, but one only hopes that nurses and other employees at retirement facilities that operate mail carts within those facilities keep the name and telephone number of their bondsman handy,” they wrote.
Also, they alleged, the ordinance is fundamentally unfair because it applies only in Miami-Dade — while some ballots include races for districts that stretch into neighboring counties.
Robaina is set for court Thursday, and Miami-Dade prosecutors will get a chance to respond.
The case is set before Miami-Dade Circuit Judge Milton Hirsch. In the past, he has not hesitated to issue controversial rulings challenging long-accepted testimony of fingerprint experts, and declaring the state’s drug law unconstitutional, which an appeal court shot down.