Recount Drama After Narrow Defeat

This Tuesday, my mom narrowly lost her bid for a seat on the North Miami City Council, losing by 14 votes. Michael Blynn, the 10-year-incumbent, won 640-626. Based on testimony of people working the polls that day, we have reason to believe there may be some discrepancies and hanky-panky that went on with this election. Today, the North Miami Canvassing Board granted my mother's request for a manual recount of the election. Councilman Scott Galvin, who sat on the board that granted this request, sent this email to his constituents today. It does a nice job of laying out the legal issues going forward.


Election Recount Scheduled
District 2 Council Seat Decided by Only 14 Votes
Dear Friends,

I am writing to let you know that a recount of all ballots in the North Miami City Council District 2 seat will be held. When the election for that seat was held on Tuesday, Michael Blynn defeated Bonnie Schwartzbaum by a mere 14 votes.

http://rs6.net/tn.jsp?et=1102601560949&s=353&e=001171Wn4EYL_c7FDzJbKpoAf39mJyuHwjy_IKdCp01-k9-xAp82WdD9L_SlKpevI7s5h_Cf-bSI8u0mxcBaqiyifK_eeUXU8I0Qswhphbmd2sNLPMmmO9XPg==Under Florida Statute, an automatic recount of ballots is called for when the difference between candidates is less than 1/2 of 1% of the votes cast. This election, however, does not meet that threshhold. Blynn's victory of 14 votes equals 1.1% of the total.

However, a special provision of the North Miami City Charter allows that, "In its discretion, the city councilmembers serving as the canvassing board may order a recount of the returns of any election prior to the final certification of the results."

Earlier today, Mrs. Schwartzbaum requested a recount under that provision. As the sole City Council member sitting on the 2009 run-off canvassing board, there was no question in my mind that we honor her request. It is of the greatest importance that there be no question that the certified winner, whomever that may be, is valid. The District 2 winner will not be allowed to have a cloud of question hanging over his or her head.

After many conversations between me, the City Attorney's Office, the County Elections Department, and the County Attorney, here are the details of the recount, which will be conducted by the Miami-Dade Elections Department:

Tuesday, June 9, 2009
1:00 pm

Dade Elections Headquarters
2700 NW 87 Avenue
Doral, Florida

The entire recount process is open to the public. Later that day, the winners of the Mayoral and Council contests will be inaugurated at City Hall, 776 NE 125 Street, at 7:00 pm.
Full Text of Mrs. Schwartzbaum's Request for Recount
To North Miami Canvassing Board
June 4, 2009

Respectfully, pursuant to section 6-97(c) of the North Miami City Code, I respectfully invoke the right of a candidate, for good cause to be shown herein, that the canvassing board - prior to its final certification of results - order a manual recount in whole of the election. Further, as proof of good cause, I am prepared to present the actual testimony/sworn affidavit(s) of Marie Samuel, Claudio Sanchez, and Steven Schwartzbaum.

Pursuant to the ability of the canvassing board to order such a recount, despite the final vote count not falling within either ¼ or ½ a percentage point, I request that particular attention be devoted to a review of the absentee ballot certifications/signatures. Based upon information and belief of possible discrepancies.

Further, I respectfully submit a copy of my formal election protest, filed on June 3, with the Supervisor of Elections, for further consideration in having the Canvassing Board order a manual recount of the results in my race.

A mechanism and sufficient time exists for such a manual recount, and such as already been accounted for through the scheduling, on June 10, at 10am, for such a manual recount to commence prior to any official certification.

Full Text of North Miami City Attorney's Request to Lester Sola, Dade Elections Director
Mr. Sola:

Pursuant to your request, and because time is of the essence, I will offer you my opinion in the form of a response to this email.

Section 102.141(7), F.S., provides, in pertinent part, the following:

"If the unofficial returns reflect that a candidate for any office was defeated or eliminated by one-half of a percent or less of the votes cast for such office,...the board responsible for certifying the results of the vote on such race or measure shall order a recount of the votes cast with respect to such office or measure." (Emphasis added).

I would agree with you, that in cases where the a results of the unofficial returns reflect one-half of a percent or less, the City of North Miami ("City") is compelled by virtue of the state law to conduct a recount. Under such occurrences, the City would indeed be preempted from acting independently by deciding to deny a recount.

The City, knowing its place, mirrors state law by pronouncing the same requirements. Section 6-97(b) of the City Code, provides in pertinent part, the following:

(b) If the returns for any office reflect that a candidate was defeated or eliminated by one-half ( ½) of a percent or less of the votes cast for such office, ......the canvassing board shall order a recount of the votes cast with respect to such office or issue." (Emphasis added).

However, that is neither the case nor the issue before us. The issue here is whether the City may, at its discretion, request a recount in cases where a candidate was defeated or eliminated by an amount in excess of ½ of a percent of the votes cast for such office. While the statute compels the City to conduct a recount for numbers equating to ½ of a percent or less of the votes cast, the statute does not prohibit or disallow the City to otherwise conduct a recount, when the limiting threshold of ½ of one percent is exceeded.

The City's discretion to authorize a recount originates under Section 6-97(a) of the City Code, which states:

"In its discretion, the city council members serving as the canvassing board may order a recount of the returns of any election prior to the final certification of the results."

Furthermore, Section 6-97(c) of the City Code, provides:

"Upon request of any candidate for good cause shown, the canvassing board may prior to the final certification of results, order a recount in whole of the election in which that candidate participated."

Had the state intended to preempt such discretion on the part of a municipality, the state would have clearly stated so. In reference to the case you provided, it differs from our current situation, i.e., a request to conduct a recount at the expense of the City. Rather than a recount as allowed by municipal code Browning v. Sarasota Alliance for Fair Elections, concerns amendments to the Sarasota County Charter that conflict with the Florida Election Code. The amendments include voter verified paper ballots, mandatory audits and certification of election results.

Unlike Browning, the pertinent City Codes are not in conflict with the Florida law. In addition, the court in the Browning case, certified the question of preemption to the Florida Supreme Court, as an issue of first impression adding doubt to its conclusion. The Supreme Court's decision on this matter appears to be pending.

I trust that this response is sufficient to address your concern.

Thank you.
Roland Galdos
Deputy City Attorney
City ofNorth Miami


North Miami Code

Sec. 6-97. Recounts.
(a) In its discretion, the city councilmembers serving as the canvassing board may order a recount of the returns of any election prior to the final certification of the results.
(b) If the returns for any office reflect that a candidate was defeated or eliminated by one-half ( 1/2) of a percent or less of the votes cast for such office, that a council member subject to recall was retained or not retained by one-half ( 1/2) of a percent or less of the votes cast on the question of recall, or that an issue appearing on the ballot was approved or rejected by one-half ( 1/2) of a percent or less of the votes cast on such measure, the canvassing board shall order a recount of the votes cast with respect to such office or issue. A recount need not be ordered with respect to the returns for any office, if the candidate or candidates defeated, recalled or eliminated form [from] contention for such office by one-half ( 1/2) of a percent or less of the votes cast for such office request in writing that a recount not be made. The canvassing board shall examine the counters on the machines or the tabulation of the ballots cast in each district in which the office or issue appearing on the ballot and determine whether the returns correctly reflect the votes cast. If there is a discrepancy between the returns and the counters of the machines or the tabulation of the ballots cast, the counters of such machines or the tabulation of the ballots cast shall be presumed correct and such votes shall be canvassed accordingly.
(c) Upon request of any candidate for good cause shown, the canvassing board may prior to the final certification of results, order a recount in whole of the election in which that candidate participated. Upon request of any elector for good cause shown, the canvassing board may, prior to final certification of results, order a recount of any issue election.
(Code 1958, § 8-71; Ord. No. 1076, § 2, 1-23-01)

Sec. 6-98. Protest.
A candidate or any elector qualified to vote in the election related to such candidacy may file a protest of the election returns pursuant to F.S. § 102.166 in the form prescribed in F.S. § 102.167. The canvassing board shall consider the protest as provided in F.S. § 102.166(1) if filed with the board.
(Code 1958, § 8-72)

Sec. 6-99. Contest.
(a) An unsuccessful candidate may contest the results of the election in which he or she participated as provided in F.S. § 102.168.
(b) A taxpayer of the city may contest the results of any question or issue submitted to a vote of the electors as provided in F.S. § 102.168.
(c) If the unsuccessful candidate filing a contest is determined to be entitled to the office, and some other individual has been issued a certificate of election or entered upon the duties of the office, a judgment of ouster may be entered by the circuit court and the contestant shall assume that office.
(d) If a judgment is entered setting aside an issue election, the election shall be regarded as having been void.
(Code 1958, § 8-73)
Secs. 6-100--6-110. Reserved.