In re Protest of Election Returns and Absentee Ballots, 707 So.2d 1170
Florida 3rd District Court of Appeals , March 11, 1998

(Fla.App. Dist.3)

[1] Florida Court of Appeals

[2] CASE NO. 98-507

[3] 707 So.2d 1170, 1998.FL.1043

[4] March 11, 1998

[5] IN RE: THE MATTER OF THE PROTEST OF ELECTION RETURNS AND ABSENTEE BALLOTS IN THE NOVEMBER 4, 1997 ELECTION FOR THE CITY OF MIAMI, FLORIDA

[6] JANUARY TERM, 1998

[7] LOWER TRIBUNAL NO. 97-25596

[8] An Appeal from the Circuit Court for Dade County, Thomas S. Wilson,
Jr., Judge.

[9] Coffey, Diaz & O'Naghten and Kendall Coffey; Geller Geller Garfinkel &
Fisher and Joseph S. Geller; Sale & Kuehne and Benedict P. Kuehne; Shubin &
Bass and John Shubin and Jeffrey S. Bass, for Joseph Carollo. Joseph J.
Portuondo and Manuel R. Lopez; Marcos A. Gonzalez Balboa; Luis Fernandez,
for Xavier Suarez. Joel Edward Maxwell, Interim City of Miami Attorney, for
the City of Miami.

[10] Before Cope, Levy, and Sorondo, JJ.

[11] The opinion of the court was delivered by: Per Curiam.

[12] This appeal involves an election contest which occurred during the
November 4, 1997, Miami Mayoral election. After considering the evidence,
the lower tribunal issued a Final Judgement which found that the evidence
demonstrated an extensive "pattern of fraudulent, intentional and criminal
conduct that resulted in such an extensive abuse of the absentee ballot laws
that it can fairly be said that the intent of these laws was totally
frustrated." The lower court ordered that the appropriate remedy was to
declare the entire Mayoral election void and order that a new election be
held within sixty (60) days. While we find that substantial competent
evidence existed to support the trial court's findings of massive fraud in
the absentee ballots, we disagree as to the appropriateness of the trial
court's remedy in ordering a new election.


[13] In July, 1996, Joe Carollo became the Mayor of the City of Miami. On
November 4, 1997, a general election was held for the position of Executive
Mayor, with Joe Carollo and Xavier Suarez as two of the contenders. Carollo
received a majority of the precinct votes (51.41%) and Suarez received a
majority of the absentee votes (61.48%), resulting in Carollo receiving
49.65% of the votes and Suarez receiving 46.80% of the votes when the
absentee ballot votes were combined with the machine precinct votes.


[14] Since neither of the parties received a majority of the overall votes,
a run-off election was held on November 13, 1997. In that election, Suarez
defeated Carollo in both precinct votes and the absentee votes. On November
14, 1997, the results of the November 13, 1997, election were certified and
Suarez assumed the position of Mayor of the City of Miami. On the same day,
Carollo filed a protest to the run-off election pursuant to Section 102.166,
Florida Statutes (1997), as well as the November 4th and November 13th
election results, under Section 102.168, Florida Statutes (1997). The
filings were consolidated. The principal relief sought by Carollo was to be
declared the victor of the Mayoral election, having received a majority of
the "untainted" precinct votes or, in the alternative, for a new election.


[15] A bench trial was held and, on March 3, 1998, the trial court declared
the Mayoral election void. This Judgement was based on the trial court's
finding of massive absentee voter fraud which affected the electoral
process.


[16] The uncontradicted statistical evidence presented by Kevin Hill,
Ph.D., a political scientist and expert in research methodology and
statistical analysis, indicated that the amount of fraud involved in the
absentee ballots was of such consequence so as to have affected the outcome
of the election. Dr. Hill analyzed the absentee ballot voting, finding that
the absentee ballots cast in Commission District 3 could not be explained by
any normal statistical measurement. *fn1 District 3 is the area which the
trial court found "was the center of a massive, well conceived and well
orchestrated absentee ballot voter fraud scheme." Dr. Hill referred to the
results of the absentee ballots as an "outlier" and an "aberrant case" so
unlikely that it was "literally off the charts" of probability tables. The
odds of this occurring by chance were 5,000 to 1. (Final Judgment, n.7).


[17] Dr. Hill finally concluded it was "reasonable" that the absentee
ballot deviation in favor of Suarez resulted only from voting fraud, ruling
"out almost every other conceivable possibility to a high degree of
probability." *fn2


[18] An expert documents examiner, Linda Hart, concluded that 225 illegal
absentee ballots were cast, in contravention of statutory requirements. *fn3
An FBI agent with 26 years of experience, Hugh Cochran, identified 113
confirmed false voter addresses. There was evidence of 14 stolen ballots,
and of 140 ballots that were falsely witnessed. *fn4 In addition, evidence
was presented that more than 480 ballots were procured or witnessed by the
29 so-called "ballot brokers" who invoked their privilege against
self-incrimination instead of testifying at trial. *fn5


[19] The trial court specifically found that the above described absentee
ballot voter fraud scheme, "literally and figuratively, stole the ballot
from the hands of every honest voter in the City of Miami". The trial court
further found that, as a result thereof, "the integrity of the election was
adversely affected." Based on our review of the record, there was certainly
ample evidence of fraud to support the findings of the trial court's Final
Judgment. See Peacock v. Wise, 351 So. 2d 1134 (Fla. 1st DCA 1977); see also
generally Wald v. Shenkman, 664 So. 2d 10 (Fla. 3d DCA 1995); Gimbert v.
Lamb, 601 So. 2d 230 (Fla. 2d DCA 1992).


[20] We are confronted with the question of whether the trial court erred
in finding that the remedy for the instant absentee voting fraud was to
order a new election. We hold that it did.


[21] An important decision concerning the issue of the appropriate remedy
to be provided upon a finding that absentee ballot fraud has affected the
electorial process is Bolden v. Potter, 452 So. 2d 564 (Fla. 1984). In that
case, the Supreme Court of Florida held that: "Although the will of the
electorate must be protected, so must the sanctity of the ballot and the
integrity of the election. Courts cannot ignore fraudulent conduct which is
purposefully done to foul the election or corrupt the ballot. See Wilson v.
Revels, 61 So.2d 491 (Fla.1952)." Id. at 567. The Supreme Court of Florida
went on to expressly approve the trial court's remedy, which was to
invalidate all of the absentee ballots and, thereafter, to solely rely on
the machine vote to determine the outcome of the election. Similarly, in
Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975), app. dism., 425 U.S. 967
(1976), the Supreme Court of Florida held that "he general rule is that
where the number of invalid absentee ballots is more than enough to change
the result of an election, then the election shall be determined solely upon
the basis of machine vote." Id. at 268 (emphasis added); see also, Peacock
v. Wise, 351 So. 2d 1134 (Fla. 1st DCA 1977) (holding that the trial court
was correct in declaring all absentee ballots invalid and ousting the
appellant from the office of clerk of the circuit court as a result, based
upon the machine vote); McLean v. Bellamy, 437 So. 2d 737 (Fla. 1st DCA
1983) ("the machine votes shall solely determine the election results" as a
proper remedy for absentee ballot fraud).


[22] We are mindful of the fact that the trial court found there was no
evidence that Mr. Suarez knew of, or in any way participated in, the
absentee voter fraud. However, as the Supreme Court stated in Bolden v.
Potter:


[23] We also reject the district court's implication that the burden of
proof, with regard to fraud or corruption, is dependent upon the status of
the offender. It makes no difference whether the fraud is committed by
candidates, election officials, or third parties. The evil to be avoided is
the same, irrespective of the source. As long as the fraud, from whatever
source, is such that the true result of the election cannot be ascertained
with reasonable certainty, the ballots affected should be invalidated.


[24] Id. at 567.


[25] While we recognize that the above cases do not explicitly state that
the exclusive remedy for massive absentee voter fraud is to determine the
election solely based on machine vote, that form of remedy has,
historically, been consistently approved since the 1930's. See State ex rel.
Whitley v. Rinehart, 140 Fla. 645, 192 So. 819, 823 (1939). In addition, we
note a complete absence of any Florida Appellate Court decision upholding
the ordering of a new election in the face of such fraudulent conduct
relating to absentee ballots. Mr. Suarez contends that to eliminate all of
the absentee ballots would effectively disenfranchise those absentee voters
who legally voted. We first note that unlike the right to vote, which is
assured every citizen by the United States Constitution, the ability to vote
by absentee ballot is a privilege. In fact, the Florida Legislature created
this privilege by enacting statutory provisions separate from those
applicable to voting at the polls. See, Anderson v. Canvassing and Election
Board of Gadsen County, 399 So. 2d 1021 (Fla. 1981) (ability to vote by
absentee ballot is a privilege created by the State); State ex rel. Whitley
v. Rinehart, 140 Fla. 645, 192 So. 819, 823 (1939)("urity of the ballot is
more difficult to preserve when voting absent than when voting in person");
Spradley v. Bailey, 292 So. 2d 27 (Fla. 1st DCA 1974); Bolden v. Potter, 452
So. 2d 564 (Fla. 1984) (expressly rejecting the contention that invalidating
all absentee ballots, in the face of extensive absentee vote buying, was an
unjustified disenfranchisement of those voters who cast legal ballots).


[26] Section 102.166(11), Florida Statutes (1997), which governs the
protest of election returns, provides that "The circuit Judge to whom the
protest is presented shall have authority to fashion such orders as he or
she may deem necessary to ensure that such allegation is investigated,
examined, or checked; to prevent or correct such fraud; or to provide any
relief appropriate under such circumstances. Any candidate or elector
presenting such a protest to a circuit Judge shall be entitled to an
immediate hearing hereon or to any appropriate relief." In the instant case,
we find that the legally "appropriate relief" required is to invalidate the
absentee ballots from the November 4, 1997, election, and determine the
outcome of the election based solely upon the machine count. See Bolden v.
Potter, 452 So. 2d 564 (Fla. 1984); Boardman v. Esteva, 323 So. 2d 259 (Fla.
1975); McLean v. Bellamy, 437 So. 2d 737 (Fla. 1st DCA 1983); Peacock v.
Wise, 351 So. 2d 1134 (Fla. 1st DCA 1977).


[27] Consistent with the fact that there is no legal precedent in Florida
to support the action of the trial court in ordering a new election as the
proper remedy upon a finding of massive absentee voter fraud is the public
policy of the State of Florida to not encourage such fraud. Rather, it must
be remembered that the sanctity of free and honest elections is the
cornerstone of a true democracy. As the Supervisor of Elections, David
Leahy, noted during his trial testimony, were we to approve a new election
as the proper remedy following extensive absentee voting fraud, we would be
sending out the message that the worst that would happen in the face of
voter fraud would be another election. Specifically, Mr. Leahy was asked at
trial, "id you express the opinion that after the Hialeah election, in your
opinion, the message that was out there was that if you were engaged in
these violations, the worse that is going to happen is we are going to have
a new election?" He answered, "Yes, I do ."


[28] Further, we refuse to disenfranchise the more than 40,000 voters who,
on November 4, 1997, exercised their constitutionally guaranteed right to
vote in the polling places of Miami. In the absence of any findings of
impropriety relating to the machine vote in this election, public policy
dictates that we not void those constitutionally protected votes, the
majority of which were cast for Mr. Carollo. In addition, a candidate who
wins an election by virtue of obtaining a majority of the votes cast is
entitled to take office as a result thereof, and not be forced into a second
election, whether it is a statutorily mandated run-off election or a court
ordered special election, when the said second election only comes about due
to absentee ballot fraud, in the first election, that favored one of his or
her opponents.


[29] We note that the out-of-state cases cited by the appellee for the
proposition that a new election is an appropriate remedy following massive
absentee ballot fraud are distinguishable. In Rogers v. Holder, 636 So. 2d
645 (Miss. 1994), the Supreme Court of Mississippi held that the
invalidation of all absentee ballots was improper where the appellant only
met his burden of proving fraud beyond a reasonable certainly as to twelve
(12) absentee ballots. Thus, ". . . it would appear imprudent to declare all
absentee ballot votes . . . void, thereby disenfranchising those voters."
Id. at 650. In the instant case, the trial court expressly found that the
appellant, Carollo, met his burden of demonstrating absentee ballot fraud to
such a degree that "the integrity of the election was adversely affected".
See also, Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994)(Where voters were
wrongfully told that they could vote absentee as a matter of convenience and
that advice was incorrect under Pennsylvania law, it was impermissible to
invalidate all absentee ballots because, inter alia, had the voters been
given correct advice, they may have gone to the polls and voted in person);
Stringer v. Lucas, 608 So.2d 1351 (Miss. 1992) (The remedy of an entirely
new election, in the presence of absentee ballot fraud, is only appropriate
when the integrity of the election is destroyed to the extent that the will
of the qualified voters is impossible to ascertain).


[30] We expressly hold that substantial competent evidence supported the
trial court's finding that extensive absentee voter fraud affected the
outcome of the November 4, 1997, City of Miami Mayoral election. Further,
our consideration of the relevant case law and strong public policy
considerations lead us to the inescapable Conclusion that the only
appropriate remedy for this absentee voter fraud is the invalidation of all
absentee ballots. To the extent that the trial court's remedy, to correct
the massive absentee ballot fraud that occurred in the November 4, 1997,
election involved the holding of a completely new election which, in effect,
invalidated all of the machine votes that were cast by the voters in person
at the polls, we find that such a remedy is not warranted by Florida legal
precedent. As a result, the voiding of the entire election and the ordering
of a new election is hereby reversed, and this cause is remanded to the
trial court with directions to enter a Final Judgment, forthwith, that voids
and vacates the absentee ballots only and, furthermore, provides that the
outcome of the November 4, 1997, City of Miami Mayoral election shall be
determined solely upon the machine ballots cast at the polls, resulting in
the election of Joe Carollo as Mayor of the City of Miami. Consequently, the
trial court's Final Judgement shall delete the requirement of the holding of
a new election since, by virtue of the foregoing, there is no need for such
an election.


[31] Although Xavier L. Suarez filed a Notice of Cross-Appeal, he failed to
file his Initial Brief, in connection with the said Cross-Appeal, as
directed by this Court. Accordingly, the Cross-Appeal is dismissed by virtue
of the fact that it was abandoned by the cross-appellant.


[32] In view of the exigent circumstances surrounding this case, no motions
for rehearing will be entertained. This decision is deemed final upon
filing.


[33] Affirmed in part, reversed in part and remanded with directions.



Opinion Footnotes

[34] *fn1 Dr. Hill's relevant testimony is found at Appellant's Appendix
Vol. VIII, Afternoon Session, p.5-72.


[35] *fn2 Dr. Hill estimated that the "aberrant" absentee ballots in
Commission District 3 cost Mr. Carollo more than the 160 votes that he
needed in order to secure outright victory in the November 4, 1997,
election.


[36] *fn3 Appellant's Appendix Vol. VI, page 82.


[37] *fn4 Appellant's Appendix Vol. XIII, pages 7, 26.


[38] *fn5 Appellant's Supplemental Appendix, Master Objection List.