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Arguments conclude in Cape re-count hearing

Decision pending

February 12, 2014
Pine Island Eagle

The decision on whether the city of Cape Coral will have to perform a do-over in the Nov. 5 mayoral election is now in the hands of Judge Elane Laboda.

Both sides presented their cases on Wednesday at the Lee County Courthouse, with Leigh Fisher, former mayor John Sullivan's attorney, putting a twist on things just moments into the session by motioning to drop his request for a recount, and instead seeking the election to be restaged.

Shortly after 5 p.m., Laboda told attorneys on both sides to submit legal arguments by noon Friday, with a decision coming thereafter.

The main contention of Sullivan's case is that the election was conducted illegally because the composition of the canvassing board did not meet state statutes, which say the board must consist of a county judge, the chair of the county commission, and the supervisor of elections.

The city's canvassing board was Supervisor of Elections Sharon Harrington, City Clerk Rebecca Van Duetekom and Cape Coral Councilmember Rana Erbrick The plaintiffs alleged the board was ill-constructed because Van Duetekom does not live in Cape Coral and the city charter doesn't mention how a canvassing board must be constructed.

There were also questions concerning the wide margin that Mayor Marni Sawicki won by in regards to the early voters. Sullivan argued the probability of losing the election after taking the most votes on the Election Day and absentee votes was very slim.

The defence, including Sawicki herself, testified that her team worked hard to get the early voters by advertising, billboards, holding rallies and walks, and even having a cookout outside the polls to bring people in.

Defense also brought up recorded testimony from Daniel A. Smith, a political science professor and expert on elections. He said he has seen a shift from Election Day voting to early and absentee voting, which he said mostly constitutes more Democrats (even though the Cape election is non-partisan). He surmised that those who voted early would more likely vote for Sawicki.

It seemed to be a rougher day for Fisher, who brought city voter Alan Raymond to the stand to testify that Precinct 57 appeared to be closed and dark when he got there to vote shortly after 6 p.m. Defense got him to admit, though, that he never got out of the car to check and had two poll workers testify the polls stayed open until 7.

Michelle and William Lambert, testified they voted in the Cape Coral election even though they live in Port Charlotte, constituting an illegal vote. Defense said they weren't compelled to vote illegally, but did so anyway.

Another witness, David Carr, one of the plaintiffs, declined to answer a question regarding whether he thought the makeup of the canvassing board put the result of the election in doubt before Laboda told him to answer.

Defense began its case by requesting the case be dismissed, claiming the plaintiffs hadn't made their case.

When Fisher objected, Laboda asked if she had any authority to declare a new election.

"Isn't this an administrative issue? Relief is administrative, not judicial. The court is at a loss as to why I can declare a do over," Laboda said.

Fisher would not venture to guess how the case will end.

"I've learned you should never try to second-guess a court. I have no idea. We will submit our brief and see what the judge says," Fisher said. "There are problems on both sides. She knows the problems Cape Coral has as far as its charter."

Sawicki, who has said it will be business as usual until it isn't, remained as confident as ever and said if she does win, seeking restitution for her and the city are very possible.

"Things went exactly as my lawyer said it would. There was no evidence in their favor and the outcome is still the same. I am still mayor," Sawicki said. "Restitution is something I will discuss with my lawyer."

Sawicki said she has spent tens of thousands in attorney fees.

Harrington was also confident, but added the plaintiff's case did raise an issue to be addressed regarding canvassing boards.

"We did exceptionally well. We refuted their claims with proof," Harrington said. "I would recommend to the mayors they sit down with their council and if canvassing boards aren't addressed in their charter to address it."

 
 

 

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