http://www.oscnewsgazette.com/index.php?op...rticle&sid=9670
Suit seeks to overturn election
02 Dec 2004
By Marvin G. Cortner News-Gazette Staff Writer
The Osceola County Canvassing Board and the two newly elected Republican county commissioners have been named in a lawsuit that alleges voting irregularities.
Julio Cesar Diaz II, a Kissimmee resident who worked on the campaign of Democratic County Commission candidate Michael Harford as a political consultant and who observed canvassing board activities for both Harford and commission candidate Peter Olivo, alleges irregularities occurred with the way absentee and early votes were handled by the canvassing board. Republican County Commissioners Ken Smith and Atlee Mercer and Osceola County Judge Jon Morgan comprised the canvassing board for the Nov. 2 election.
The two commissioners named in the lawsuit – Paul Owen, who won a second term in District 1, and Bill Lane, winning his first term in District 5 – both won by small margins and both trailed before absentee votes were totaled.
The Lane-Olivo commission race was so tight that it triggered an automatic recount of ballots that were marked for both candidates or for neither one.
“I am not the only one who wants an investigation,” said Diaz.
He said that he is not alleging that any one person committed voter fraud but that the system is fraught with the opportunity for it.
Diaz alleges that the unexplained delivery of thousands of ballots to the canvassing board late on election night after the polls closed provides the grounds on which the election should be set aside. After the polls closed on Election Day, the elections office received 1,955 absentee ballots and 2,602 missed early votes. He claims that a number of these ballots were illegal — that people essentially voted twice — and in a sufficient number to change or place in doubt the results of the election.
The canvassing board, according to Diaz, met on Oct. 29 and received 6,681 absentee ballots. The board met again Nov. 1 and received another 1,931 absentee ballots. And then on Election Day at 5:30 p.m. met again to count votes, although Diaz does not specify the number.
Diaz claims that neither the Supervisor of Elections staff nor the canvassing board provided an adequate explanation as to how the absentee ballots and early votes were received and handled on Election Day.
Supervisor of Elections Donna Bryant, a Democrat, is not named in the lawsuit. She was out of the office this week and could not be reached for comment. However, one of her staff members said that absentee ballots can be obtained on Election Day but that immediately after the ballot is turned in, a call is made to the appropriate precinct to make sure that the person has not already voted and to make sure that his or her name is removed from the precinct voter roll, preventing that person from voting again.
The lawsuit contends that 4,589 absentee ballots were requested Nov. 1, and 3,193 were requested Nov. 2. Diaz claims the verification for absentee votes may not have been made, mainly due to the large number of ballots turned in late in the process.
Vannie LeClaire, voter services specialist in the elections office, said Diaz’s numbers are incorrect, that only 330 absentee ballots were requested Nov. 1 and only 308 on Nov. 2. LeClaire said that 2,600 early votes were cast on Nov. 1.
According to election records there were 10,567 absentee ballots cast in the election.
Diaz also asserts that an attorney representing the Kerry-Edwards campaign was present during the canvassing board meetings and that he was able to identify a voting trend — based on the votes that had to be duplicated by the canvassing board and on absentee ballots he observed — that favored Democratic commissioner candidates.
Diaz further states in court documents that the attorney also reported that on Nov. 2 a number of absentee ballots reviewed by the canvassing board appeared to be voted in a “hasty manner” as most of them did not have a vote on the constitutional amendments or for Appellate Court judges.
Mercer on Monday said he had not had a chance to review the lawsuit but said that to allege that voting irregularities occurred is “so absurd that it is funny.”
“Having witnessed the whole process of the election and having worked with both Republicans and Democrats, I have a much higher faith in the process than ever before,” he said.
Mercer added that precinct voter rolls are generated after 5 p.m. on election eve — minus those voters requesting absentee ballots. If someone requested an absentee ballot and for some reason didn’t get it turned in and then showed up at the polls to vote on Tuesday, he would have been allowed to vote only by provisional ballot. Election officials before counting the provisional ballot would have verified that the person had not already turned in an absentee ballot.
“It’s a foolproof system,” said Mercer.
Mercer also disagreed that any trend toward Democrats could be established by looking at the absentee votes the canvassing board handled.
“Most ballots we redid were federal ballots — from people overseas who are not entitled to vote in local or state races,” said Mercer, referring to the hastily voted charge. He added that the farther down the ballot one went, the more under-voting there was, with ballot fatigue weighing in most heavily on the constitutional amendments.
The canvassing board also had to redo a number of military ballots that were of a size that could not be scanned, delaying the completion of the vote count until approximately 3:15 a.m. Nov. 3. Also, absentee ballots were the last ones counted (absentee ballots received before Election Day were scanned and recorded but not totaled, as required by state law).
Olivo said Tuesday that he does not have any hand in the Diaz lawsuit.
“In the beginning, the Democrats wanted us to file a lawsuit but after the recount, I was tired and I realized it was over,” said Olivo. “I had taken enough time off from my family for the campaign. I was essentially working two jobs — my regular work and the campaign.”
“Mike (Harford) and I would benefit from the lawsuit if the election were overturned, though,” said Olivo.
The Osceola County Democratic Party is not backing Diaz either, according to Bobbie Gant, party chairwoman.
Gant said the late surge of Republican support was expected, given that party’s highly organized effort to get people to vote by absentee ballot. Democrats, however, Gant said, did not expect the surge to change the outcome of the election for Harford and Olivo.
Harford said he too would benefit from any election being overturned but that he was not backing Diaz financially.
Contact Marvin G. Cortner at 407-846-7600, Ext. 205. E-mail at mcortner@osceolanewsgazette.com