David Rivera loses challenge; Robert Asencio joins Legislature

David Rivera
David Rivera

Former Congressman David Rivera lost his battle to return to the Florida House of Representatives Tuesday after state elections officials certified that he had lost to Democrat Robert Asencio by 53 votes and Asencio was sworn in to the District 118 seat.

The Florida Canvassing Board, headed by Secretary of State Ken Detzner, on Tuesday certified that the recount of ballots conducted last week by Miami Dade elections officials was legitimate and certified Asencio as the victor.

Rivera, a Republican who first served in the state Legislature from 2000-2008, had filed a formal challenge with the House, alleging that Asencio should not be seated because the state has not reviewed about 112 vote-by-mail ballots that were rejected because of mismatched signatures. He produced affidavits from 59 people who said they had voted by mail and wanted their ballots counted.

But during the House's post-election organizational session on Tuesday, the House unanimously rejected Rivera’s claim, concluding he did not properly allege any irregularity with the vote tally. The review of affidavits from a selective set of voters would have been unprecedented in a race that did not involve fraud.

"There is no assertion and no evidence submitted that the Miami-Dade canvassing board did not fully follow applicable law and rules,’’ said Rep. Larry Metz, R-Umatilla, who moved to dismiss Rivera’s challenge. “..In other words, there was no allegation of any irregularity in canvassing or tabulating vote-by-mail or provisional ballots cast by the Miami-Dade canvassing board.”

Ascencio, a retired Miami-Dade Schools police captain, said he was confident in the process.

“I’m very happy. The voters have spoken. It’s democracy as its best,’’ he said after having been sworn in as one of 46 House freshmen. “It was challenged and the votes determined I was the winner.”

The ballots in the narrow election were recounted twice, a machine recount and hand review of ballots the machine thought were marked with votes for too many candidates or too few. After 10 hours of counting ballots, the Miami-Dade County elections department declared last week that Asencio finished with 31,412 votes and Rivera 31,359 — a margin 15 votes closer than when the recount began.

Rivera’s lawyers asked elections officials to impound about 300 disputed ballots — mostly absentee ballots on which the voter’s signature was either missing or ruled not to match signatures in elections department records -- and asked the Florida House leadership to halt Asencio's swearing in until the ballots were reviewed.

The unanimous vote of the House seated everyone who was sworn in and deemed them all qualified.

"Seeing that the House of Representatives is the sole judge of the qualifications, elections and returns of its members, by a vote of the House, you are now officially members of the House of Representatives. Congratulations," said outgoing House Speaker Steve Crisafulli.

Rivera said in a text message to the Miami Herald late Tuesday that his appeal efforts had not ended. He said he will ask a federal court to order the state to review the omitted and mismatched signatures in his race.

Mary Ellen Klas can be reached at meklas@MiamiHerald.com. Follow her on Twitter @MaryEllenKlas