Mulvaney Loses Bid for Runoff Election
By Mark Schlueb | Sentinel Staff Writer
Posted March 25, 2005
Ken Mulvaney finally got his day in court, but it wasn't the outcome he wanted: A judge Thursday ruled against the runner-up in last year's Orlando mayor's race, likely dealing a death blow to his yearlong fight to overturn Buddy Dyer's re-election.
The court ruling is a victory for Dyer, though it's not a part of the criminal case that led to his arrest and suspension by Gov. Jeb Bush two weeks ago. Still, lawyers for Dyer and the city said the judge's ruling could help his defense in the criminal case, as well.
" I'm extremely pleased with the result," Dyer said. "As I've said all along, we would work through the process instead of playing the case out in the media -- as my opponent has done -- and be vindicated once the court had a chance to look at the facts. "
Though Circuit Judge Theotis Bronson found Mulvaney's claims of voter fraud to be groundless in dismissing the case, the lawsuit spawned a separate criminal probe that led to indictments for Dyer and three others.
Mulvaney, along with second-place City Council candidate Lawanna Gelzer, sued to have absentee votes cast in the race thrown out.
Mulvaney accused one of Dyer's paid campaign workers, Ezzie Thomas, of mishandling absentee ballots cast by elderly black voters from west Orlando.
Thomas and several associates signed as witnesses to 364 ballots, and Mulvaney filed affidavits and sworn statements from 23 of them alleging misconduct.
But even if all 364 votes were thrown out, Dyer still would have won the election outright. So Mulvaney asked Bronson to discard all 4,758 absentee ballots cast in the race -- even those from voters who had never heard of Ezzie Thomas -- and call a runoff election between him and Dyer.
In his 16-page ruling, Bronson said the small number of questionable ballots, even if proved fraudulent, wouldn't have been enough to change the election's outcome.
" The evidence submitted by plaintiffs shows that, at most, one and one-half percent of the absentee ballots are contested as being tainted," Bronson wrote.
Attorney David King, who represents the city's election canvassing board, said Bronson's decision confirms that Dyer's win in 2004 "was the will of the people. "
" The judge found there was no fraud that in any way affected the result of the election, " King said.
Bronson had been considering the case since a hearing on March 15. He issued his ruling a few hours after Mulvaney called a news conference and offered to withdraw the lawsuit if Dyer agreed to resign from the mayor's office.
Mulvaney, a downtown business owner who runs a stainless-steel fabrication plant, could not be reached for comment. But he said in a written statement that he was disappointed and has not decided whether to appeal.
Although Mulvaney's effort to overturn the election failed, a criminal complaint brought by his brother, Brian, has forced Dyer -- at least temporarily -- from office.
Brian Mulvaney's complaint to the Florida Department of Law Enforcement mirrored the allegations in his brother's lawsuit.
Two weeks ago, a grand jury indicted Thomas; Dyer; his campaign manager, Patti Sharp; and Circuit Judge Alan Apte, who hired Thomas to work on his 2002 judicial campaign.
The four were not charged with any actual fraud related to the election. Rather, prosecutors say they violated a state law that prohibits paying someone from being paid to collect absentee ballots.
Dyer's lawyers already have filed a motion indicating their intent to challenge the untried absentee ballot law on constitutional grounds.
" We'll be filing motions to dismiss the indictment," attorney Robert Leventhal said Thursday.
Lawyers on Dyer's side said the victory could help his criminal case.
" It means the court has considered a lot of the same evidence in the criminal case and not been convinced by that evidence. I think it's good for Mayor Dyer," said attorney Mark NeJame, who represents City Commissioner Ernest Page in the lawsuit.
Page became acting mayor with Dyer's suspension. The city will hold a special election on May 3 to select a temporary replacement until Dyer's case is resolved.
If Dyer is acquitted, he'll return to office. But a conviction would create a permanent vacancy that would require a second special election.
Among those who have said they will run are former Mayor Bill Frederick, retired police Capt. Sam Ings, perennial candidate Alex Lamour, Orlando Weekly columnist Billy Manes and businessman Edward Lopes.
Shortly after the judge's ruling Thursday, Mulvaney said his name also will be on the May 3 ballot.
" I'm encouraged by the hundreds of calls I've received encouraging me to run, and I'm looking forward to the campaign," Mulvaney said in a written statement.
Source: Orlando Sentinel