A Miami-Dade judge ruled Wednesday he will not throw out Miami-Dade County’s ordinance governing the collection of absentee ballots.
Circuit Judge Milton Hirsch said Sergio Robaina, who is accused of illegally collecting absentee ballots for elderly voters, cannot claim his constitutional rights were violated because of the 2011 ordinance outlawing possession of more than two absentee ballots.
The reason: Those voters whose ballots Robaina collected would have to be the ones to go to court.
“Sergio Robaina cannot demand their rights to vote,” Hirsch wrote in a 15-page order released Wednesday. “Sergio Robaina cannot assert their rights to vote.”
Prosecutors say Robaina illegally collected the absentee ballots, and filled out two against the wishes of two voters, one of them a woman with dementia. Robaina has long insisted he was just helping elderly citizens who could not deliver their absentee ballots themselves.
Robaina is charged with two misdemeanor counts of violating the ordinance, and two felony counts of voter fraud. On Wednesday, the judge denied a move by Robaina’s lawyers to throw out the two misdemeanor charges.
Two years ago, in an effort to crack down on perceived election fraud, the Miami-Dade County Commission passed the ordinance that outlawed the possession of more than two absentees ballots, making it a misdemeanor punishable by up to 60 days in jail or a fine of up to $1,000.
This past election season, as allegations of absentee ballot fraud arose in Miami-Dade, police used the ordinance as a probable-cause stepping stone to investigate felony charges of voter fraud.
Robaina’s charges stem from a case involving 164 absentee ballots dropped off at a post office by an aide to Miami-Dade Commissioner Esteban Bovo, who is not accused of wrongdoing.
Robain, the uncle of former Hialeah Mayor Julio Robaina, has blamed a Bovo aide who is now a key witness against him.
In a motion to dismiss the misdemeanor charges, Robaina’s lawyers claimed the ordinance is fundamentally unfair because it applies only in Miami-Dade, while some ballots include races for districts that stretch into neighboring counties.
They also said the ordinance violates a citizen’s right to vote, free speech and the right to assemble.
“It cuts off a certain class of voters, for the most part elderly Hispanics who probably live in the Sweetwater area who are accustomed to having confidence in certain people and they talk to them about how to vote,” defense lawyer Joseph Klock told the judge during a hearing last week.
Oren Rosenthal, an assistant county attorney, argued that the commission had every right to enact the ordinance under state law. He also said the ordinance “cuts off a class of fraud that has been proven unique in Miami-Dade County over the years.”
In Wednesday’s order, the judge acknowledged that absentee ballot fraud is a problem unique to Miami-Dade. He also noted that the relationship between voters and absentee-ballot brokers is not protected by law and that county commission has the right to legislate how the ballots are collected.
“Such a determination was well within the competence of the commission, as the legislative power of the county, to make,” Hirsch wrote.
The judge also suggested that the ordinance does not violate voters’ constitutional rights because they can also use the U.S. Postal Service mail carriers to pick up ballots.
And, “friends of Mr. Robaina remain free to invite him over for café y pastelitos to discuss the pros and cons of each electoral choice before filling out ballots,” Hirsch wrote.
Defense lawyer Thomas Cobitz said his client will consider an appeal of Hirsch’s ruling because it honed in on Robaina not having standing to make his claim.
“Obviously, we’re not happy with the outcome,” Cobitz said after Wednesday’s brief court hearing. “Obviously, he’s the smartest judge in the building, but at first blush, it looks like he ruled on a small issue.”
