A lawsuit filed against the Monroe County Elections Office that sought to have ballots counted in the race for Islamorada’s seat 4 was voluntarily dismissed by plaintiff Eric Carlson. 

Carlson filed a notice of voluntary dismissal without prejudice on Oct. 21 in the case that was filed in the 16th Judicial Circuit Court in the Upper Keys on Sept. 22. The lawsuit requested the county elections office and the elections supervisor count all votes cast in Islamorada’s seat 4 race between Henry Rosenthal and the late Ken Davis in the November general election. Davis qualified for the election before the Aug. 11 deadline, as did Rosenthal.

On Sept. 12, Davis died after suffering from heart failure and massive stroke. He was elected to the dais in 2018 and had recently served as vice mayor. He was seeking re-election. 

With Davis’ death, R. Joyce Griffin, county elections supervisor, told the Weekly that votes cast in the race would not be counted. A notice went out to village voters informing them that a “candidate in the race for the office of Village Council Seat 4 has passed away, resulting in an unopposed candidate.” The notice went on to state that a vote cast in the race will not change the outcome as the remaining candidate is deemed by law to be elected for that race. 

The lawsuit contended that neither death, incapacity nor disqualification of a candidate is referenced in Florida statute as instances resulting in creating an unopposed candidate. Carlson’s lawsuit requested an emergency hearing. The case was sent to Circuit Judge Tim Koenig in Key West, who reviewed the pleadings and determined on Sept. 25 that an emergency hearing wasn’t necessary. 

A 12-page response by County Attorney Bob Shillinger, who represented the elections office and the elections supervisor, on Sept. 24 asked the court to dismiss the matter. Within the defense’s response, it was stated that had the village charter complied with Florida statute by having a provision that spelled out the process for addressing the circumstance at hand, there would be no controversy. 

“Unfortunately, the village charter is silent on this point,” the response stated. “In the absence of direction provided by clear language in the charter, the supervisor has turned to Florida law and guidance from the Division of Elections.” 

The defense’s response alluded to a 1953 Florida Supreme Court ruling that “when votes are cast for a person known by the voters to be deceased, they shall be treated as void and thrown away and are not to be counted in determining the result of the election.”

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Jim McCarthy is a Western New Yorkers who escaped the snow and frigid temperatures for warm living by the water. A former crime & court reporter and city editor for two Western New York newspapers, Jim has been honing his craft since he graduated from St. Bonaventure University in 2014. In his 3-plus years in the Keys, Jim has enjoyed connecting with the community. “One of my college professors would always preach to be curious,” he said. “Behind every person is a story that’s unique to them, and one worth telling. As writers, we are the ones who paint the pictures in the readers minds of the emotions, the struggles and the triumphs.” Jim is past president of the Key Largo Sunset Rotary Club, which is composed of energetic members who serve the community’s youth and older populations. Jim is a sports fanatic who loves to watch football, mixed martial arts and golf. He loves to hit the links and play some softball with his Make A Play team. He also enjoys time with family (he's expecting a little boy in October).