Judge refuses to throw out charges in Miami-Dade absentee ballot case
An accused ballot broker had challenged a law county commissioners, worried about election fraud, approved in 2011 that made possession of more than two absentee ballots a misdemeanor.
01/23/2013 9:11 AM
01/23/2013 6:49 PM
Miami-Dade’s absentee ballot ordinance survived a legal challenge in criminal court Wednesday, while county commissioners approved a new measure to track how campaigns pay workers involved in collection of the ballots.
The use of absentee ballots, which voters can turn in by mail or in person to the elections department, has skyrocketed in Miami-Dade in recent years. Allegations of absentee-ballot fraud shook the August primary as police investigators arrested two ballot brokers, or boleteros, on voter fraud charges.
On Wednesday, a Miami-Dade judge declined to throw out misdemeanor charges against one of the accused, Sergio “ El Tío” Robaina, whose lawyers had challenged the constitutionality of a county ordinance that bans collection of multiple ballots. A person may turn in only two absentee ballots in addition to their own: one belonging to an immediate family member and another belonging to a voter who has signed a sworn statement designating that person as responsible.
Prosecutors say Robaina, 74, illegally collected absentee ballots and filled out two against the wishes of two voters, one of them a woman with dementia. He faces two felony counts of voter fraud, and two misdemeanor counts of illegally possessing absentee ballots.
Robaina has long admitted to collecting the ballots, but merely as a way to help elderly citizens. The probe started after authorities discovered 164 absentee ballots dropped off at a North Miami-Dade post office.
The bundle was dropped off by an aide to Miami-Dade Commissioner Esteban “Steve” Bovo, who has not been accused of wrongdoing. Robaina, the uncle of former Hialeah Mayor Julio Robaina, has consistently shifted the blame to that aide, now a key witness against him.
His attorneys chose to challenge the misdemeanors charged under the county ordinance, which went into effect July 1. The County Commission, worried about the perception of election fraud, passed the ordinance two years ago.
In a hearing last week, Robaina’s lawyers claimed the ordinance is fundamentally unfair because it applies only in Miami-Dade, while some ballots include races for state or congressional districts that stretch into neighboring counties.
They also said the ordinance violates a citizen’s right to vote, to speak freely and to assemble.
“It cuts off a certain class of voters, for the most part elderly Hispanics who probably live in the Sweetwater area who are accustomed to having confidence in certain people and they talk to them about how to vote,” defense lawyer Joseph Klock told the judge during a hearing last week.
Oren Rosenthal, an assistant county attorney, argued that the commission had every right to enact the ordinance under state law. He also said the ordinance “cuts off a class of fraud that has been proven unique in Miami-Dade County over the years.”
Judge Milton Hirsch, in a 15-page order released Wednesday, acknowledged that absentee ballot fraud is a problem that is prevalent in Miami-Dade. He also noted that the relationship between voters and absentee-ballot brokers is not protected by law and that the County Commission has the right to legislate how the ballots are collected.
The judge also pointed out voters can also use the U.S. Postal Service mail carriers to pick up ballots.
And, “friends of Mr. Robaina remain free to invite him over for café y pastelitos to discuss the pros and cons of each electoral choice before filling out ballots,” Hirsch wrote.
But Hirsch did not rule on whether the ordinance passed constitutional muster. Instead, he said that Robaina didn’t have standing to make those claims.
The reason: Voters whose ballots Robaina collected would have to be the ones to go to court.
“Sergio Robaina cannot demand their rights to vote,” Hirsch wrote. “Sergio Robaina cannot assert their rights to vote.”
Defense lawyer Thomas Cobitz said his client will consider an appeal of Hirsch’s ruling. No trial date has been set.
A few miles away at County Hall, commissioners signed off on a new measure prompted by the cases of Robaina and another accused boletera who has pleaded not guilty, Deisy Cabrera.
The ordinance, sponsored by Commissioner Jose “Pepe” Diaz, will require candidates running for county or municipal office to identify paid workers who take part in their absentee-ballot campaigns.
Candidates must already disclose their campaign expenditures under state campaign finance laws. They will now have to file an additional report solely listing campaign workers who deal with absentee ballots — including those hired by campaign consultants. Candidates often list consultants without detailing what work the consultants are doing.
The measure originally also required the disclosure of unpaid volunteers directed by campaigns to work with absentee ballots, but a majority of commissioners said campaigns cannot control volunteers’ actions.
“What I’m trying to do is bring back the trust of the people,” Diaz said.
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