Defeated Miami-Dade mayoral candidate, property appraiser challenge election over absentee ballots

Citing the ongoing absentee-ballot fraud investigation in Hialeah, two Miami-Dade politicians who lost their election contests two weeks ago say they have sued to challenge the results.

County Commission Chairman Joe Martinez, who ran for Miami-Dade mayor, and Property Appraiser Pedro J. Garcia, defeated in his reelection bid, filed parallel lawsuits Friday asking the courts to throw out the absentee votes in their countywide races, according to a lawyer representing both men.

Without the absentees, the results would rely only on ballots cast during early voting and on Election Day. In that case, Martinez would have narrowly made it to a runoff against Mayor Carlos Gimenez. Garcia would have defeated state Rep. Carlos Lopez- Cantera.

Prosecutors have charged two suspected Hialeah ballot brokers known as boleteros, Deisy Cabrera and Sergio Robaina, with voter fraud. Cabrera allegedly forged the ballot signature of a terminally ill woman in a nursing home; Robaina allegedly filled out two absentee ballots with his own candidate choices, not those of the voters involved.

As part of the investigation, authorities have identified 195 absentee ballots collected by Cabrera, Robaina or other brokers. Six of those ballots were seized by investigators and not counted in the Aug. 14 election. The county’s three-member canvassing board rejected four other ballots collectedby the brokers because the signatures on the ballot envelopes did not match voter signatures on file.

In an interview Monday, Martinez cited the Hialeah arrests as enough evidence to contest the election.

“I know there was fraud,” Martinez said flatly. On the campaign trail he saw other activity that raised concerns, he added: At a Hialeah medical center, a worker offered a patient a list of candidates to vote for.

Gimenez acknowledged the ongoing fraud investigation, but countered that Martinez is “grasping at straws.”

“There may be a taint on the election, but it’s not to the extent of 90,000 ballots,” Gimenez said. “He’s trying to disenfranchise 90,000 voters, and to me, I think that’s unconscionable.”

Almost 88,000 voters cast absentee ballots in the mayoral race, out of more than 233,000 — amounting to about 38 percent of the vote. In the property appraiser contest, there were about 80,000 absentee ballots out of nearly 207,000 — about 39 percent of the total.

Garcia — who shortly after the election told a Spanish-language television station that he was not interested in overturning the results but in preventing future fraud — said Monday he wanted “all the absentee ballots reviewed and completely eliminated.”

“With the number of problems we’ve had and the number of people we’ve had handling the ballots, it’s clear that they have been manipulated,” he said.

In a statement, Lopez-Cantera said he respects Garcia’s right to sue “even if I question his motives and wholeheartedly disagree with his assumptions.”

“At the end of the day the outcome will be the same . . .” he said.

In this month’s election, Lopez-Cantera defeated Garcia, 51 percent to 49 percent. If absentee ballots were thrown out, the results would have been flipped: Garcia would have won, 51 percent to 49 percent.

Gimenez won the mayoral election with just over 54 percent of the vote, compared to Martinez’s 31 percent.

Without the absentee ballots, Gimenez would have won 49.5 percent of the vote — short of the 50-percent- plus-one-vote majority required to avoid a runoff against Martinez, who would have garnered 33 percent of the vote.

Candidates had until Monday — 10 days after the election was certified on Aug. 17 — to contest the election. Because the courts were closed Monday while Tropical Storm Isaac passed, the deadline could be extended until Tuesday.

Martinez’s and Garcia’s lawsuits had yet to appear in electronic court records by Monday evening. But Stephen Cody, the attorney representing both men, said he filed the complaints late Friday at the courthouse annex of the South Dade Government Center in Cutler Bay.

Martinez and Garcia are seeking an injunction ordering that the official results contain only early voting and Election Day votes.

There is no bright-line legal standard establishing when a judge can overturn an election. In their complaints, Martinez and Garcia cite a Florida Supreme Court case that says an election may be voided when there is evidence that fraud “permeated the entire process,” even if the number of fraudulent votes would not change the results.

Relying on the same case, a judge voided the 1997 Miami mayoral election between Joe Carollo and Xavier Suarez after 225 illegal votes were cast and hundreds more were found to list false voter addresses, be falsely witnessed or procured by ballot brokers. The trial court ordered a new election.

But the appeals court ruled that voting absentee is a privilege that does not have the same legal protection as voting at the polls, which is a constitutional right.

It proposed a different remedy, saying a new election was not required. Instead, the court ruled that the elections supervisor should toss out all of the absentee ballots and certify the election based on the remaining votes — which is what Martinez and Garcia are asking for now.

“Florida courts have said I don’t need to prove that there are 30,000 corrupt ballots,” Cody said. “All I have to show is that there was a level of corruption in the election sufficient to raise doubts as to whether the election actually put forth the voters’ intent.”

State law, however, has changed since 1997. Voters can now cast absentee ballots for any reason, without citing a medical issue or saying they will be unable to make it to their polling place.

“The Legislature’s spoken, and they eliminated the specific rules that made absentee voting a privilege,” said attorney Kendall Coffey, who represented Carollo in his successful 1997 lawsuit and will now represent Gimenez. “Today, absentee ballots enjoy the same . . . fundamental right as voting in the polling places.”

Miami Herald Staff Writers Scott Hiaasen and David Ovalle contributed to this report.