Election Law Issues May Come Into Play in Florida in 2016

Florida election law could once again take center stage in the days following the 2016 election. With that possibility in mind, let’s examine several issues that may come into play this year on the state and local level. 

voter challangeVoter Challenges

Any voter or poll watcher with sufficient basis can challenge the right of any other voter to cast a ballot.  Anyone wishing to challenge a voter at the polling place during early voting or on Election Day must submit an affidavit to the precinct clerk or inspector outlining the basis for the challenge prior to the casting of the challenged vote.  Alternatively, the challenge can be made by delivering the affidavit to the supervisor of elections office no sooner than 30 days prior to the election.  The challenged voter will be permitted to vote by provisional ballot.  Under most circumstances the local canvassing board will determine the validity of the challenge.

Cimageshallenges to Absentee Ballot Voter’s Certificate 

The outside of an absentee ballot envelope contains a statement called a voter certificate.  The voter certificate must be signed by the voter with a signature which matches the signature on file at the supervisor’s office.  Challenges based upon a defect in the voter’s certificate (e.g. the signature doesn’t match) must be made before the ballot is removed from the envelope.  The challenge must be filed with the canvassing board and specify the precinct, the ballot, and the reason why the challenger believes the ballot to be illegal.

ballot auditRecounts 

Recounts of ballots are triggered in two instances:

If the first ballot count reflects that a candidate was defeated or ballot measure approved or rejected by ½ of 1% or less of the votes cast, a machine recount of all ballots cast for the race or measure will occur.

If the machine recount described shows that the candidate was defeated or ballot measure was approved or rejected by ¼ of 1% or less of the votes cast, a manual recount of the overvotes and undervotes cast for the race or measure will occur.  A vote contained on a ballot initially identified as an overvote or undervote shall be counted if there is a clear indication on the ballot that the voter has made a definite choice.  This manual recount will occur unless the losing candidate requests in writing that a recount not be made or the number of overvotes and undervotes is fewer than the number of votes needed to change the outcome of the election.

“Overvote” means a voter has marked a vote for 2 or more persons for the same office or more than one answer to a ballot question, and the machine tabulator records no vote for the office or question.

“Undervote” means that the voter did not make any choice for an office or ballot question, and the machine tabulator records no vote for the office or question.

gavelElection Contest

An election contest is a lawsuit which challenges the certification of the outcome of an election.  An election contest is not available to challenge Florida House or Senate races.  These races are solely within the jurisdiction of the Florida Legislature and challenges to certification are governed by the rules of the applicable house.

Although Federal Congressional races can be challenged through an election contest suit, the Federal Senate and House of Representatives bear the ultimate constitutional responsibility to adjudicate disputed Congressional elections.

An election contest suit can be brought by an unsuccessful candidate or any voter or taxpayer.  The suit must be filed within 10 days after certification of the election.

The grounds for contesting an election are:

(a) Misconduct, fraud, or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the election.

(b) Ineligibility of the successful candidate for the nomination or office in dispute.

(c) Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.

(d) Proof that any elector, election official, or canvassing board member was given or offered a bribe or reward in money, property, or any other thing of value for the purpose of procuring the successful candidate’s nomination or election or determining the result on any question submitted by referendum.

public inspectionPublic Inspection of Ballots

The Florida Public Records Law and Election Code treat ballots as public records subject to public inspection and examination upon request.  Any member of the public is entitled to inspect any or all of the ballots, however, only an employee of the supervisor of elections can touch the original ballot.  The law contemplates that a ballot inspection might occur before the deadline for filing an election contest suit (10 days following certification).  If an inspection is requested before the contest deadline, the supervisor must make a reasonable effort to notify all candidates of the inspection and allow them to attend the inspection.

Voting System Auditsaudit 

After the certification of all elections, the local canvassing board is required to immediately conduct either a manual audit or an “automated, independent audit “of the voting systems.

The manual audit must be for one randomly selected race in at least 1% but no more than 2% of randomly selected precincts.  The manual audit must occur in public.

The automated independent audit is a public automated tally of votes cast in all races in 20% of precincts selected at random.

The local canvassing board must report the results of the audit to the Secretary of State.

The results of the audit have no legal effect on the outcome or certification of the election, although the results likely could be used as evidence in an election challenge or contest suit.

Hopefully this summary will be helpful to you in following events in the event election controversies arise this year.

Posted in Absentee Ballot, Ballot Audits, Ballot inspection, Ballot recounts, Election contests, Election recounts, News, Timely Issues Series, Voter challanges, Voting System Audits | Tagged , , , , , , , , , , , , , , , , , , , , | Leave a comment

Privilege for Some or Right of the Masses? A History of Voting in America

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Privilege for Some or Right of the Masses? Views of Our Founding Fathers on Voting Rights


John AdamsDepend upon it, Sir, it is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end to it. New claims will arise; women will demand the vote; lads from 12 to 21 will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level.                                                                                      John Adams

Ben FranklinToday a man owns a jackass worth 50 dollars and he is entitled to vote; but before the next election the jackass dies. The man in the meantime has become more experienced, his knowledge of the principles of government, and his acquaintance with mankind, are more extensive, and he is therefore better qualified to make a proper selection of rulers—but the jackass is dead and the man cannot vote. Now gentlemen, pray inform me, in whom is the right of suffrage? In the man or in the                                                              jackass?                                                                                                                                                                     Benjamin Franklin

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Miami-Dade Court Rejects Claim that Anti-Ballot Brokering Ordinance is Unconstitutional

A Miami-Dade county court has rejected a claim that an anti-ballot brokering ordinance is unconstitutional. In State v. Robaina, the defendant was charged with having more than two completed absentee ballots in his possession. The defendant moved to dismiss the charge, arguing that the ordinance violated the equal protection and freedom of speech clauses of the constitution. The County Court analyzed and rejected these arguments its order denying the defendant’s motion to dismiss.

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Florida Grand Jury Urges Change in Laws to Prevent Absentee Voter Fraud

The Miami-Dade County Grand Jury has issued a final report urging changes in Florida law to prevent absentee ballot voter fraud and to expand early voting periods. Among other points the report recommends that all absentee voter signatures be witnessed by someone over the age of 18 and that anyone providing assistance to an absentee voter sign a declaration which will be returned to with the ballot. The grand jury also recommends that statewide legislation prohibit the possession of more than two absentee ballots by any person. This suggestion was prompted by the practice of “ballot brokering” which occurs when a person is hired by a candidate to deliver in bulk completed absentee ballots .

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Hundreds of Florida Absentee Ballots are Dead on Arrival

As this story illustrates, hundreds if not thousands of Florida absentee ballots will not be counted this year because the voter forgot to sign the certificate on the outside of the ballot mailing envelope. F.S. 101.68(2)(c)1. mandates that “[a]n absentee ballot shall be considered illegal if it does not include the signature of the elector…” There is no provision in Florida law which permits a supervisor of elections notify the voter of the error before election day. Moreover, F.S. 101.68(1) states that “[a]fter an absentee ballot is received by the supervisor, the ballot is deemed to have been cast, and changes or additions may not be made to the voter’s certificate.”

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