Banko’s attorney, Jeff Childers, filed an amended complaint asking Judge Keim to declare that McGraw is not a member of the school board and that every vote she has taken since the election is “ultra vires,” or invalid. At the time the amended complaint was filed, it appeared that McGraw might continue to vote as a school board member in defiance of the governor’s order, but she has not done so.
The motion to dismiss argues that the court lacks jurisdiction because there are limits to the ability of a candidate (Banko, in this case) to contest an election. However, Banko has not contested the election but instead asked the judge to declare the seat vacant. McGraw’s dismissal motion acknowledges that she does not live in District 2: “for the purpose of this motion, Plaintiffs’ allegations that Mrs. McGraw was not, is not, and never was qualified to serve as the District 2 representative on Alachua County’s School Board due to the applicable residency requirements are accepted as true.”
The governor’s removal of McGraw was partially based on the fact that McGraw did not present evidence that she did, in fact, live in the district and a provision in the Florida Constitution stating that “a vacancy in office shall occur upon an officer’s failure to maintain the residence required of him or her by law”.