SUN PHOTO/MAGGIE FIELD
City commission candidate Gene Aubry and his sister,
Jill Morris, greet passersby near the polling place at
Roser Community Memorial Church in Anna Maria
Tuesday morning. Aubry hopes to be elected if
Commissioner Harry Stoltzfus is recalled.
ANNA MARIA — Appeals are being prepared this week challenging a ruling made by Circuit Court Judge Edward Nicholas sealing the ballots in the Sept. 7 recall election.
On Sept. 3, Judge Edward Nicholas ruled that the ballots in the election to recall City Commissioner Harry Stoltzfus must be placed under lock and key at Supervisor of Elections Bob Sweat’s office until at least 5:01 p.m. Sept. 24.
Nicholas said this ruling was not difficult. He said he agreed with Richard Harrison, Stoltzfus’ attorney, that if the ballots were counted and the results known, Stoltzfus could suffer irreparable harm.
Citizens for Sunshine, Inc., a non-profit organization dedicated to promoting awareness of and compliance with Florida’s Government in the Sunshine and Public Records Laws, filed a friend of the court brief during the hearing.
“This case involves issues under the Sunshine Law that are unique and which are of great public concern, including whether alleged violations of that law are sufficiently alleged as a basis for recalling an elected official,” argued Andrea Mogensen on behalf of the organization. “CFS is also concerned with the request by plaintiff Harry Stoltzfus to seal the ballots. Under Florida law, every citizen has a constitutional right to inspect ballots.”
Mogensen cites several cases reflecting that a voted ballot becomes a public record once it’s voted.
Jim Rahe of the First Amendment Foundation, another non-profit that works on issues of open government, confirmed that election ballots become public records once a government body such as the Supervisor of Elections receives them.
The recall committee and CFS are considering appealing the ruling sealing the ballots.
“We are looking into the First Amendment implications of sealed election executed ballots,” Carter said on behalf of his committee. “But that the recall election is going forward is a major victory for the committee of the people who are concerned with public trust in our elected officials.”
Judge Nicholas ruled on Aug. 24 that the recall petition was legally sufficient and that the recall election could go forward on the Sept. 7 date set by Chief Judge Lee Haworth.
At the emergency hearing, City Attorney Jim Dye noted that the city has taken no official position on the recall petition or the recall election, but the ruling sealing the ballots had an impact on the city.
“The city would be in a difficult position, your honor,” Dye said to Judge Nicholas. “In the case of a 3-2 vote by the commission, every vote by the commission would be subject to challenge. And most substantive votes on this commission are 3-2 votes.”
Dye pointed out that if Stoltzfus wins the recall and retains his seat, there would be no problem, but if he loses the recall and loses his seat, his votes would be invalid, and the city would be in a tough position.