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Election Law @ Moritz

Election Law @ Moritz


2008 Key Questions for Key States

Florida

The complete research by Election Law @ Moritz for Florida can be found below.

Institutional Arrangements

State Chief Election Authorities

Republican appointee

Chief election authority: Secretary of State. F.S.A. §97.012.

Method of selection: Appointed by governor. F.S.A. §20.10.

Current officer: Kurt Browning (R). Browning was a Democrat until 2002, St. Petersburg Times, December 14, 2006. (Last updated 1/1/08)

State High Court Composition

D heavy/appointed

Method of selection: Gubernatorial appointment with subsequent retention election. Const. Art. V., §§ 3, 10-11.

Justices: R. Fred Lewis (D), Charles T. Wells (D), Harry Lee Anstead (D), Barbara J. Pariente (D), Peggy A. Quince (D), Raoul G. Cantero (I), Kenneth B. Bell (R) (Last updated 12/20/07)

Sources:

Local Administrator Training

Annual training/extra pay for attendance

Florida provides a $2,000 bonus each year to election officials who attend multi-day continuing legal education seminars regarding election law. FSA 145.09. Attending the seminars is not required.

Who tallies precinct results?

County canvassing board - partisanship unconstrained

The county canvassing board tallies precinct results.  The canvassing board consists of the supervisor of elections, a county court judge, and the chair of the board of county commissioners. FSA 102.141.

Who counts provisional ballots?

County canvassing board - partisanship unconstrained

The county canvassing board determines whether to count provisional ballots. FSA 101.048. The board consists of the supervisor of elections, a county court judge, and the chair of the board of county commissioners. FSA 102.141.

Who performs state canvass?

Special canvassing commission - mixed/partisanship unconstrained

The Elections Canvassing Commission canvasses county returns.  FSA 102.111.  The Elections Canvassing Commission consists of the governor and two members of the cabinet selected by the governor.

Local Administrator

County official - elected

County supervisors of elections administer elections at the local level, although this can be varied by county charter. FSA 98.015. Currently, only Miami-Dade County, Florida’s largest, has chosen to vary its charter and move to an appointment system. Elected supervisors must run for office every four years. FSA 98.015; Const. Art. 8, §1.

Local Administrators' Party Affiliation

Balanced/elected

County Population (millions) Administrator Method of selection Voting technology*
Miami-Dade 2.4 Lester Sola (no info) Appointed ?
Broward 1.79 Brenda Snipes (D) Elected ?
Palm Beach 1.27 Arthur Anderson (D) Elected ?
Hillsborough 1.16 Buddy Johnson (R) Elected ?
Orange 1.04 Bill Cowles (D [1]) Elected ?
Pinellas .92 Deborah Clark (R) Elected ?
Duval .84 Jerry Holland (R) Elected ?
Polk .56 Lori Edwards (D [2]) Elected ?
Brevard .53 Hubert Childress, Jr. Elected ?
Volusia .50 Ann McFall (R [3]) Elected ?
Total 11.01 million (61% of population)

*Moritz does not have current information on the voting machines that Florida will be using, because many counties in Florida have changed or are changing their voting equipment. Most of the counties that are changing their equipment will use the new ES&S DS200 optical scanner.

  • [1] Assistants to Crotty, Carter Seek Election Job, Orlando Sentinel, January 1, 1996
  • [2] State House Race Lures Teacher, Business Owner, Tampa Tribune, September 2, 2000
  • [3] Several races won by slim margins, Orlando Sentinel, November 7, 2004

Voter Registration

Registration Deadline

29 days before election

To be effective for the next election, registration applications must be received by the 29th day preceding the election (but mail applications are valid if the postmark indicates a date before the deadline). FSA 97.053, 97.055.

Notice of Registration Error

Yes

Officials must notify applicants of incomplete applications and give them the opportunity to complete them. FSA 97.073. A complete application is one that contains “all information necessary to establish the applicant” is at least 18 years old, is a US citizen, not disenfranchised due to felony conviction, not mentally incompetent to vote, and a resident of the Florida county in which registration is sought. FSA 97.041, 97.053. The applicant’s signature must also be present. FSA 97.053. To be considered complete, the application must also include a driver’s license or ID card number, social security number, or an affirmation that the applicant has not been assigned any of these numbers. FSA 97.053.

Opportunity to Correct after Registration Deadline

Depends

The only time voters may correct after the deadline is when the problem is inability to match the applicant's SS or DL# against outside databases, and only when the problem was caused by administrative, rather than voter, error.

Otherwise, applicants who fail to complete their applications prior to the deadline cannot vote in the next election (although flawed driver’s license or social security numbers can be corrected with supplemental information—see below). FSA 97.053; Diaz v. Cobb, 2008 WL 793584 at 19 (S.D.Fla., 2008).

Driver’s license and social security numbers contained on applications are compared against outside databases using an automatic process that classifies them as matches, potential matches or non-matches; non-matches and some types of potential matches are reviewed by local Supervisors before deciding whether to process the subject application. Florida State Conference of N.A.A.C.P. v. Browning, 2008 WL 880569 at 30 (11th Cir., 2008). However, where the failure to verify the application was caused by administrative rather than voter error, the law requires officials to notify the applicant and give them an opportunity to correct the application, even after the registration deadline. FSA 97.053. Applicants who fail to provide this supplementary information before the election may vote a provisional ballot and their ballots will be counted if they supplement by 5 p.m. on the second day following the election. FSA 97.053.

HAVA matching standards

Hybrid standard

There are two Florida matching processes, one for applicants who submit driver's license numbers (or state ID numbers) on their voter registration applications, and one for applicants who submit social security numbers on their applications. Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1157 (11th Cir., 2008). The driver's license process does not require an exact match. Rather, the process returns matches, nonmatches, and possible matches. Possible matches are manually reviewed by the Department of State, while nonmatches are manually reviewed by local administrators, to decide whether they should be considered "verified" and entered into the voter registration database. In contrast, the social security process does require an exact match of the applicant's social security number, date of birth, and first and last name.

Will the inability to verify social security number or driver's license number prevent registration?

Registration fails

If an applicant’s Social Security or driver’s license number cannot be verified, the code prohibits officials from registering the applicant. FSA 98.045.  However, the individual may still cast a provisional ballot and provide their identification number (SS or DL#) within two days of casting the ballot.  The ballot will count only if officials are able to match the new information.

 

Challenges

Pre-election challenges

Challenges decided by provisional ballot-counting entity

Pre-election day challenges may be initiated by any registered voter by filling out an oath stating the challenger’s name, address, and reasons for challenge. FSA 101.111. The challenge is not decided prior to election day, but instead the voter must cast a provisional ballot and the challenge is decided as part of deciding whether to count the provisional ballot.

Election day challenges

Successfully challenged voter must cast a provisional ballot

Election day challenges may be initiated by any registered voter by filling out an oath stating the challenger’s name, address, and reasons for challenge. FSA 101.111. Challenged voters must cast a provisional ballot. The challenge is decided as part of deciding whether to count the provisional ballot.

Provisional Ballots

Provisional ballot - name not in poll book

Ballot will count if voter was registered and eligible and signature matches one on file

Provisional ballots will count if officials determine that all of the following are true: 1. That the signature on the provisional ballot matches the one on file; 2. that the voter was entitled to vote in the precinct and 3. that the voter had not already cast another ballot. FSA 101.048. In making this determination, officials will examine the provisional ballot paperwork, as well as any additional evidence presented by the supervisor of elections, challengers, or the voters themselves. Provisional ballots are presumptively valid and can only be rejected if officials determine "by a preponderance of the evidence that the person was not entitled to vote." FSA 101.048. However, one official cautioned that this presumption does not amount to much, as the procedures used in counting should eliminate any ambiguity and the need to make decisions based on a presumption.

Provisional ballot - voter cast ballot in wrong precinct

Ballot will not be counted

Provisional ballots cast in the wrong precinct will not be counted.  FSA 101.048; American Federation of Labor and Congress of Industrial Organizations v. Hood, 885 So.2d 373 (Fla., 2004).

Provisional Ballot Casting Rate - 2006

.25-.5 percent of ballots cast at polls

0.43%

Provisional Ballot Counting Rate - 2006

70-80 percent

73.5%

Early and Absentee Voting

Convenience Voting

Early voting and "no excuse" absentee voting

Early voting begins the 15th day prior to the election and ends on the 2nd day before the election.  FSA 101.657.

Any voter may cast an absentee ballot.  Ballot requests must be received no later than 5 p.m. on the 6th day prior to the election.  FSA  101.657.  To count, completed ballots must be received by 7 p.m. on the day of the election.  FSA 101.67.

Voting Technology

Voting Technology

Predominately or 100% OS

Note: Florida statute 101.56075 requires that all counties use precinct-count optical scan technology in all elections occurring after July 1, 2008. Many counties are currently changing their technology to conform to this law.

County Population (millions) Supervisor/affiliation Selection Voting technology
Miami-Dade 2.4 Lester Sola (?) Appointed See note
Broward 1.79 Brenda Snipes (D) Elected
Palm Beach 1.27 Arthur Anderson (D) Elected
Hillsborough 1.16 Buddy Johnson (R) Elected
Orange 1.04 Bill Cowles (D [1]) Elected
Pinellas .92 Deborah Clark (R) Elected
Duval .84 Jerry Holland (R) Elected
Polk .56 Lori Edwards (D [2]) Elected
Brevard .53 Hubert Childress, Jr. (?) Elected
Volusia .50 Ann McFall (R [3]) Elected
Total 11.01 million (60.9% of pop.)
  • [1] Assistants to Crotty, Carter Seek Election Job, Orlando Sentinel, January 1, 1996
  • [2] State House Race Lures Teacher, Business Owner, Tampa Tribune, September 2, 2000
  • [3] Several races won by slim margins, Orlando Sentinel, November 7, 2004

Does state law require a VVPAT?

No

Florida does not require VVPAT.  FSA 101.5606.  A bill was proposed in 2006 (SB 1910) to require voting machines to produce VVPAT, but was not passed.   

Polling Place Operations

Who are poll workers?

Appointed by local administrator/some minority party representation

The county supervisor of elections appoints poll workers. FSA 102.012. In a general election, these poll workers cannot all be of the same political party. However, that requirement is waived for primary elections.

Poll worker training

Prior to each election

The Secretary develops a uniform training program for poll workers that each Supervisor must incorporate to train poll workers before each election. F.S.A. § 102.014. Regular poll workers may not serve unless they attend two hours of this program (three hours for head poll workers) and "demonstrate… a working knowledge of the laws and procedures relating to voter registration, voting system operation, balloting and polling place procedures, and problem-solving and conflict-resolution skills". The Secretary also develops a uniform polling place procedures manual that must be present in each polling place (see here).

Polling hours extension

Unclear

The governor may suspend or delay an election when he or she has declared an emergency. The governor may do this independently or at the request of the secretary of state or affected county or municipal officials. FSA 101.733. The governor must reschedule a suspended or delayed election within 10 days. No mention is made of whether the governor can extend voting hours, as opposed to suspending or delaying the election altogether.

The Election Division of the Department of State must adopt, and has adopted, a statewide contingency plan for emergencies. The plan gives local administrators the ability to set up special absentee voting locations where voters may cast their ballots without having to worry about whether they are in the correct precinct. 1 FL ADC 1S-9.005. When elections are delayed or suspended in some jurisdictions and not others, the plan also requires administrators to withhold election results until the rescheduled election is completed and all administrators are ready to announce their results.

Polling hours are from 7 a.m. to 7 p.m. FSA 100.011.

Voters standing in line at the close of polls may cast a ballot. FSA 100.011.

Polling place closing times - local times

7:00 PM local time

Polling place closing times - by Eastern time zone

8:00 PM Eastern time

Ballot Security

Voter ID requirements

Photo ID with signature required

Voters must present one of the following forms of current and valid picture ID at the polls: driver’s license, state ID, US passport, debit or credit card, military ID, student ID, retirement center ID, neighborhood association ID, or public assistance ID. The proffered ID must contain the voter’s signature and, if it does not, another form of ID with signature must be shown. FSA 101.043.

Consequences of failure to present ID

Voters must cast provisional ballot

If the voter fails to show the required ID, he or she may cast a provisional ballot. FSA 101.043

Follow-up required of voter

No followed-up required

Florida voters do not have to make a separate trip to an elections office after election day to provide ID to have their provisional ballot counted. FSA 101.048. Rather, the canvassing board will count the provisional ballot if the voter was registered and eligible and the signature contained on the provisional ballot paperwork matches the one contained in voter registration records. FSA 101.048.

Emergency Preparedness

Natural Disasters or Emergencies

Election-specific emergency provision

The governor may suspend or delay an election when he or she has declared an emergency. The governor may do this independently or at the request of the secretary of state or affected county or municipal officials. FSA 101.733. The governor must reschedule a suspended or delayed election within 10 days.

The Election Division of the Department of State must adopt, and has adopted, a statewide contingency plan for emergencies.  The plan gives local administrators the ability to set up special absentee voting locations where voters may cast their ballots without having to worry about whether they are in the correct precinct.  1 FL ADC 1S-9.005.  When elections are delayed or suspended in some jurisdictions and not others, the plan also requires administrators to withhold election results until the rescheduled election is completed and all administrators are ready to announce their results.

Ballot Shortages

Local officials will restock

Florida code provides that local election officials are to supply precincts with substitute ballots in the event of a shortage. The substitute ballots are to conform as nearly as possible to the format of the official ballots. FSA 101.43.

What if touchscreens break down?

N/A

Florida is switching to all optical scan machines for the 2008 general election.

Post-Election Processes

State certification deadline

Upon receipt of local results

The Elections Canvassing Commission certifies the returns of the election “as soon as the official results are compiled from all the counties.” FSA 102.111. The counties have to certify their results by noon of the 12th day after the election or the 7th day after a primary election. FSA 102.112

Election contest deadline

Within 2 weeks of state certification

10 days after state certification

Election contests must be filed within 10 days of the certification of the results of the election. FSA 102.168.

Local count deadline

Between 8 and 14 days after the election

The canvassing board must submit their certified returns to the Department of State by noon of the 12th day after the election or the 7th day after a primary election. FSA 102.112. Results that are not received by the specified time will be ignored by the Department of State and any results on file at the time of the deadline will be certified.

Audit type

Manual

Audits are performed by manually examining ballots.  FSA 101.591.  Because Florida uses paper ballots exclusively, auditing touchscreens is not an issue.

The county canvassing board randomly chooses between 1% and 2% of precincts in each county to audit. FSA 101.591. The votes of one randomly selected race are audited.

Audit scope

1-2% of precincts

The county canvassing board randomly chooses between 1% and 2% of precincts in each county to audit.  FSA 101.591.  The votes of one randomly selected race are audited.

Candidate-requested recounts

None

Florida does not have candidate-requested recounts.

Administrative Recounts

Local officials may order

If the county canvassing board determines there has been a counting error, the board must correct the error and retabulate the ballots. FSA 102.141.

Automatic Recounts

Triggered at 0.5%

Officials must conduct a machine recount whenever the original results of a race show a margin of victory of 0.5% or less. FSA 102.141. The results of this recount must be submitted to the Secretary no later than 3 p.m. on the 9th day following the election (3 p.m. on the 5th day following any primary). Officials must then conduct a manual recount if the amended results show a margin of victory of 0.25%, but only if the number of overvotes, undervotes and provisional ballots is greater than the margin of victory. FSA 102.166.

Defintion of a vote

Concrete standard

Florida law allows the Secretary of State to promulgate administrative regulations defining exactly what does and does not count as a vote FSA 102.166. The new regulations identify various types of nonstandard marks that should count (e.g., the oval or arrow next to a candidate’s name is circled or underlined). While the regulations probably fail to identify every kind of nonstandard mark that it is possible to make, they do provide sufficient guidance to reduce the number of disputed ballots to below the level of all but the slimmest margins of victory. 1 FL ADC 1S-2.027.

Election Contest Scenario #1: Unverified Ballots

Unclear

Florida statutes used to dictate that officials randomly withdraw and destroy ballots cast in excess of the number of voters who signed in, but that statute was repealed (see former § 102.061). No other statute was adopted to replace it, leaving substantial uncertainty to the question of what officials are supposed to do.

In an election contest, a court might nullify an election and order a new one if the number of unverified ballots exceeds the margin of victory. In the absence of fraud, Florida courts will generally only reach this remedy where the court finds “substantial noncompliance with statutory election procedures” and also makes a factual determination that “reasonable doubt exists as to whether a certified election expressed the will of the voters….” Beckstrom v. Volusia County Canvassing Bd., 707 So.2d 720, 725 (Fla., 1998). However, the court probably has the discretion to prescribe another remedy besides invalidation, where appropriate.

Election Contest Scenario #2: Provisional Ballots with Technical Mistakes

Provisional ballots will be counted despite nonsubstantive errors

Officials must count each provisional ballot unless (1) they determine by a preponderance of the evidence that the person was not entitled to vote or (2) they determine that the signature on the provisional ballot application is not genuine. § 101.048; 1 FL ADC 1S-2.037. In other words, the assumption is that the ballot will be counted and the burden of proof rests on those who would not count the ballot. This probably means that minor mistakes or omissions contained on the provisional ballot application would not prevent the ballot from being counted.

Before casting a provisional ballot in Florida, voters must fill out and sign an affirmation that states their name, date of birth, county and party of registration, current address, and other information. § 101.048. Examples of these affirmations may be found here, here, here, and here

What Court Would Hear a Presidential Contest?

Trial Court

The contest of a Presidential general or primary election should be brought in Leon County circuit court. F.S.A §§ 102.168 and 102.1685. The circuit court is a type of trial court that also hears some kinds of appeals. Circuit Court judges are elected in nonpartisan elections. Fl. Const., Art. 5, § 10. However, circuits may initiate a different local option for the selection of circuit judges. See Id. and F.S.A. § 105.036. No law was found on in the Leon County code that would vary this default.

Who Performs Presidential recounts?

Bipartisan

Florida recounts are conducted by as many two-person counting teams as are necessary to conduct the recount. F.S.A. s 102.166. The counting teams must have "when possible," members of at least two political parties. Id. The two-person teams are overseen by the county canvassing board. F.S.A. 102.166. This board consists of the local supervisor of elections, the county court judge, and the chair of the board of county commissioners. F.S.A. s 102.141. All of these officials are elected by default. F.S.A. s 98.015; 105.036; 124.011. However, by local option, county court judges may be selected based on merit subject to retention elections. F.S.A. Const. Art. 5 s 10 3c.