The Election that Won't Die
By Jeffrey C. Billman
Posted May 20, 2004
The Buddy Dyer press machine fooled the Sentinel. On May 13, Dyer gave Sentinel city reporter Beth Kassab a letter he had just received from the Florida Department of Law Enforcement declaring, "[T]here was no basis to support the allegations of election fraud concerning these absentee ballots. "
Those absentee ballots, Sentinel readers will recall, were the 264 witnessed by Ezzie Thomas, a consultant whom the mayor paid $10,000. Since the March 9 election -- Dyer avoided a runoff by 234 votes -- loser Ken Mulvaney has accused Thomas of improperly collecting, and in some cases, tampering with the absentee ballots, and has sued to overturn the election.
Kassab dutifully reported on the leaked letter in a story that appeared May 14, giving the impression the FDLE had investigated Mulvaney's claims and rejected them.
In reality the FDLE hadn't seen any evidence of Thomas' alleged malfeasance, so there was no investigation to do. FDLE regional director Joyce Dawley said that if evidence came to light, the agency would pursue it.
But there is evidence, and it's intriguing.
On May 17, Brian Mulvaney and Tim Love -- the former Ken's brother and business partner, the latter a Samuel Ings campaign worker who later joined the Mulvaneys -- marched down to the FDLE office on West Robinson Street to plead their case. (I was thrown out when FDLE officials found out I was a reporter.)
They were there to show the FDLE 42 sworn affidavits alleging that Thomas may have broken, or bent, the law to assure Dyer's re-election. Whether it's enough to prompt an investigation remains to be seen. What's for sure, despite what you may have read in the Sentinel, is that the issue isn't dead.
Signed and sealed
I shrugged when I first heard that Ken Mulvaney was challenging the election results. The move seemed desperate. Even if his challenge was successful, it would mean a runoff between Mulvaney and the mayor.
Plus Mulvaney's allegations were strange. Dyer was the favorite in every sense of the word. He had more money, more name recognition, a more seasoned campaign staff and the ability to charm just about anyone. So why would he pay Thomas, president of the Orange County Voter's League, to manipulate absentee ballots?
But on April 8, Ninth Circuit district judge Theotis Bronson rejected the city's motion to dismiss Mulvaney's suit, lending some gravity to his side. A trial date is tentatively set for July, but Mulvaney wants it moved up. Dyer's attorney has asked for a "summary judgment" hearing in mid-June, in which he'll argue that, based on their 240 affidavits, Thomas did nothing wrong.
It's hard to believe a judge will overturn an election three months after the fact, but the Mulvaneys pressed on. They spent two months taking sworn affidavits and tape-recorded interviews from more than 40 people whose absentee ballots Thomas had signed as a witness. (It's not a scientific sample, but Brian Mulvaney says these were the people they could find.) Love proctored the interviews.
Two weeks ago, the Mulvaneys gave me their evidence on the condition that I not reveal names of people they interviewed, other than those who've already been discussed in public records. I reluctantly agreed; it was either anonymity or no access. I double-checked the signatures on the affidavits against the signatures on the absentee ballot envelopes to make sure these were the same people. Absentee voters put their unsigned ballots in a signed, sealed envelope. Those envelopes then become public record. The signatures on the envelopes matched the signatures on the affidavits.
The most talked-about absentee voter in the mayoral race -- because she is mentioned in Mulvaney's lawsuit -- is 86-year-old Bertha Starks. Starks received a ballot, and soon after Thomas came by her house to pick it up. But she erroneously thought she was missing the ballot for the Democratic presidential primary -- she wasn't a registered Democrat, and wasn't able to vote in that race -- so she had her housemate sign the envelope for her and give it to Thomas. Starks says he promised to return with the presidential ballot.
Starks says she never did vote. In fact, when interviewed by the Mulvaney camp a week after the election, she said she still expected Thomas to return with her ballot. But elections records show her absentee ballot was turned in.
Which leaves two possibilities: Thomas voted for her; or, as the city suggests in court documents, he forgot, and gave the ballot to election officials unmarked and Starks' vote didn't count. It's impossible to know which, because once absentee ballots are removed from their envelopes there's no way of tracing votes.
At least two other women stated that they signed their absentee-voter envelopes but left the ballots unmarked, then gave them to Thomas. One of the two says Thomas filled out her ballot, according to her sworn statement.
Three others say Thomas told them to vote for Dyer and city commissioner Ernest Page, who was also up for re-election. One of the three states she wanted to vote for Mulvaney, but voted for Dyer at Thomas' urging. The two others said Thomas encouraged them to vote for Ernest Page and led them to believe he was a Democrat, when in fact he's a Republican.
" I vote Democrat," one said in a taped statement. "I didn't do nothin' but sign my name. I ain't voting Republican." She ays Thomas convinced her to vote for Page.
(Page is also being sued over Thomas' involvement by his opponent, Lawanna Gelzer. Unlike Dyer, who paid Thomas for "consulting," there's no record that Page paid Thomas. Mark NeJame, Page's attorney, says that fact that will make Gelzer's case difficult to prove. On the other hand, if a judge throws out the ballots Thomas collected, that would force Page and Gelzer into a runoff.)
According to state elections law, elderly, infirm and illiterate voters Ñwhich many of these absentee voters are -- can have someone help them fill out their ballot, but helpers cannot recommend candidates.
Thomas isn't speaking with the media. But his lawyer, Dean Mosley, is. "What happened is some of the people my client helped may not be the most educated people and sometimes if you plant an idea in a person's head, they will take that idea and run with it," Mosley says.
In other words, the Mulvaney camp's questions after the fact "made them think something was going on."
He hints at something more sinister. "There are grumblings that there is an intent to suppress the black vote by attacking the absentee ballots." Translation: Mulvaney, a Republican, wants to help other Republicans by attacking largely minority absentee ballots, that more often than not swing Democratic.
" Personally, I have not passed judgment on that," he says. "I'm just telling you what I'm hearing."
As for the specific allegations, Mosley can't speak to them because he hasn't seen the affidavits collected by the Mulvaney camp. Most of this issue, he says, stems from voter confusion. Thomas had no malicious intent, he says.
But did Thomas influence voters to back Page and Dyer? "He's not really recommending," says Mosely. "He was asked a question." Meaning Thomas was asked by absentee voters which candidate he would support. "It may be a gray area [for him to answer that], but it's not illegal," he says.
Many of those interviewed by Mulvaney workers said Thomas didn't try
to influence their vote or do anything unethical.
There was one common thread throughout all the affidavits collected by the Mulvaneys, and it's something that interests the FDLE: In nearly every case, interviewees said they didn't request an absentee ballot; they just got one in the mail. State law is clear that you don't get an absentee ballot unless you specifically ask for one, by phone or mail.
The Mulvaneys think it's highly suspicious that all those absentee ballots showed up at the same time Thomas did. They suspect that Thomas, who keeps a legal database of information gathered from absentee voters he registers, requested ballots for the voters.
Mosley bats away that idea. "I doubt that very seriously," he says. Ballot-request records are exempt from public records law, so there is no way to know for sure who really asked for all those absentee ballots.
None of the people interviewed by the Mulvaney camp put stamps on their envelopes, and all believed that Thomas would hand-deliver their ballots to the election office. However, a city ordinance passed in October 2001 only allows a person to deliver absentee ballots from up to two nonfamily members, an effort to stem the practice of bundling ballots.
In an odd twist, the city argues that if Thomas put stamps on the ballots and mailed them, he'd be in the clear. "There's no question that anybody can mail an absentee," says assistant city attorney Amy Iennaco.
Actually, there is. The city code, section 21.18, reads: "An absentee ballot not cast in person must be mailed or delivered directly to the Supervisor of Elections by the elector or the elector's designee, and not to any other person, group or entity." The city says you can only be a designee for two people outside immediate family, so you can see how the Mulvaneys have concluded that mailing in 200-plus ballots runs afoul of the ordinance.
Iennaco says that despite how the ordinance reads, the intent of the city council was to restrict the number of ballots a person can deliver by hand, not by mail.
Mulvaney's charges against Thomas aren't the first time his consulting work has come under scrutiny. In 2002, allegations of fraud swirled around Thomas' aid to state Sen. Gary Siplin in his race, though the state attorney's office declined to pursue the case, saying it couldn't prove he'd done anything illegal.
Once again, Thomas is in the clear, Mosley says. "It looks like to me that Mr. Thomas did not break any law. Even if there were glitches, they were minor. "
Ultimately, that's for the judge to decide.