Absentee ballot fraud: Candidates could be breaking the law

Aug 18, 2017
State Sen. Bobby Powell, left, state Rep. Al Jacquet, center, and County Commissioner Mack Bernard lead a public discussion in February at Riviera Beach City Hall. (Damon Higgins / The Palm Beach Post)

Buried in the state attorney’s recent memo about voter fraud in a 2016 primary election were a few lines that left political observers scratching their heads: Collecting absentee ballots, it said, is illegal.

For years, local campaigns and organizations have gone door to door collecting people’s vote-by-mail ballots to deliver to election headquarters, with the assumption that as long as they weren’t being paid to do it, it was legal.

That apparently is no longer the case, adding confusion to one of the more bizarre elements of Florida’s already vague absentee ballot laws and potentially exposing well-meaning volunteers to first-degree misdemeanor charges.

A spokesman for Palm Beach County State Attorney Dave Aronberg said the office is offering no opinion beyond what was in its memo, which states, several times: “It is a crime for non-official election personnel to be in possession of any absentee ballots.”

Lawyers and political observers puzzled over the statement, and Elections Supervisor Susan Bucher flatly disagreed with it.

She said she’s had no discussions with the State Attorney’s Office about it, but she said the law applies only to people who are paid to collect ballots. She won’t be changing anything.

“Do I know the law? Yes, I know the law, and we comply with the law,” she said.

The state attorney’s memo doesn’t cite any specific statute and doesn’t match the language in the only statute that deals with absentee ballot collection, which turns on a single phrase: “or otherwise.”

The statute makes it a misdemeanor for any person to provide or accept “a pecuniary or other benefit in exchange for distributing, ordering, requesting, collecting, delivering, or otherwise physically possessing more than two vote-by-mail ballots per election in addition to his or her own ballot or a ballot belonging to an immediate family member.”

Some lawyers read those two words as a shift in the statute’s meaning, making it entirely illegal to possess more than two filled-out absentee ballots. Others view those words as part of the list that hinges on some form of benefit.

Sarasota-based attorney Thomas Shults reads “or otherwise” to mean the ballot possession is separate from the requirement for payment.

“Unless it’s your ballot, or the ballot belonging to an immediate family member, possessing three or more mail-in ballots is a crime,” Shults said.

Adding another wrinkle, a recent Orlando-area jury found the former Eatonville mayor guilty of collecting ballots under the same statute.

Primary raised issue

The aim of the law was to prevent campaigns from manipulating elections, after several Miami races in the 1990s were corrupted by voters who were paid to turn in absentee ballots or who allowed campaign workers to fill out and turn in their ballots.

As a March Palm Beach Post investigation showed, some voters complained that candidates or campaign workers entered their homes and helped voters fill out forgotten absentee ballots, watching over their shoulders and pointing out who to vote for.

Across the state, campaign advisers, elections supervisors and lawyers have acted on the belief that the statute says as long as somebody isn’t paid to collect ballots, it’s legal. (Except in Miami-Dade County, which, after several scandals, restricted how many ballots anyone could collect to two.)

The advice allowed even candidates to collect ballots. Riviera Beach Mayor Thomas Masters has long canvassed neighborhoods collecting ballots during re-election campaigns. Earlier this year, Palm Beach County Commissioner Steven Abrams said that he would occasionally collect his neighbors’ ballots.

The issue was thrust into the spotlight during the August 2016 Democratic primary, when County Commissioner Priscilla Taylor, suspecting her opponent Mack Bernard was abusing the law, sent a mailer warning, “DEMOCRATS BEWARE! Don’t give your absentee ballot to anyone.”

The mailer encouraged people to call the state’s voter fraud hotline if somebody went to their door and offered to pick up their ballots.

That prompted a quick response from Palm Beach County Democratic Party Chairwoman Terrie Rizzo, telling party members in an email that absentee ballot collection was not illegal.

A subsequent Post investigation found that Bernard and his close ally, state Rep. Al Jacquet, canvassed mostly Haitian neighborhoods collecting ballots, in some cases going into voters’ homes and helping them fill out their ballots. They both won their races with high absentee vote totals.

And the state attorney’s investigation into that election, released in July, turned up ample evidence of voter fraud, with more than 20 people’s signatures forged on absentee ballot request forms. Investigators never identified a suspect, but an aide for state Sen. Bobby Powell — a friend and ally of Bernard and Jacquet — was labeled a “person of interest” after dropping off bundles of request forms. But the aide was never interviewed.

The state attorney’s memo never addressed whether any candidates had collected ballots, although two voters said an “unidentified black male” collected their ballots. And The Post had reported on people who identified Bernard and Jacquet in their homes.

But the memo was unequivocal about one thing: “It is a crime to be in possession of completed absentee ballots with a few exceptions, such as official election poll workers, family members, or legal guardians.”

Mayor found guilty

Shults and his colleague, attorney Jodi Ruberg, said the statute could be interpreted to mean that it’s illegal both to be paid to collect ballots and to possess three or more ballots.

They also point to the final legislative bill analysis in 2013 that states the statute was amended “to make it a first-degree misdemeanor for any person to possess more than two absentee ballots that do not belong to the person or his or her immediate family member.”

A recent, little-watched case near Orlando took a different spin on what it means to benefit from a campaign.

In May, an Orange County jury found former Eatonville Mayor Anthony Grant guilty of two felony voter fraud charges — and a misdemeanor for possessing more than two absentee ballots.

Grant won the 2015 election just like Bernard and Jacquet did: by losing at the polls but winning with an overwhelming turnout in absentee votes, according to the Orlando Sentinel. Grant’s opponent cried foul, and the Florida Department of Law Enforcement opened an investigation.

A jury found him guilty of going into a woman’s home and coercing her to vote for him on her absentee ballot. His two aides also were charged.

“They stood over voters; they stood next to voters, and pointed out literally ‘vote for this one, this one, this one,’” Chief Assistant State Attorney Richard Wallsh told jurors, according to the Sentinel.

The statute says someone can’t get a “pecuniary or other benefit” for collecting ballots. Prosecutors successfully argued that by possessing more than two ballots, he received an “other benefit” — in this case, winning the election.

“The benefit received by Anthony Grant was not a pecuniary benefit but fit under the ‘other benefit’ language of the statute; which in his case was aiding his personal goal of winning the election,” Wallsh told The Post in an email.

Grant was sentenced to four years of probation and 400 hours of community service. Being a felon means he no longer can run for office.

The prosecutors’ interpretation of the law was so unique that election lawyers were skeptical it would survive a challenge.

“I’m surprised, and I don’t know that that decision would be upheld on appeal, if they raised a constitutional challenge,” said Tallahassee-based elections lawyer Jennifer Blohm.

Grant’s lawyer did not return repeated requests for comment.

Regardless of whether prosecutors would agree that collecting two ballots is illegal, Shults said he would advise his clients not to risk it.

“Under no circumstance should you or any of your campaign workers possess anyone’s absentee ballot other than your own,” he said. “That way you are ensuring that there is no misconduct occurring.”