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.

Thomas D. Shults, Esq.

About Thomas D. Shults, Esq.

Tom Shults is a Florida Bar Board Certified Civil Trial Lawyer. He has represented clients in election and sunshine law issues, complex business and commercial disputes and probate and trust suits. He was admitted to the Florida Bar in 1983 and has maintained an active trial practice in state and federal courts for over 35 years. Mr. Shults successfully represented the Sarasota Alliance for Fair Elections in Sarasota Alliance for Fair Elections et al. v. Browning et al. , where the Florida Supreme Court ruled on the constitutionality of Sarasota County’s charter election law amendments. Mr. Shults has served on the Professional Ethics Committee of The Florida Bar and is the past Chairman of the Code and Rules of Evidence Committee of The Florida Bar. He is a recipient of the Distinguished Community Service Award of the Sarasota County Bar Association for his work with the Sarasota Mental Health Community Centers. In 2013 he was nominated for circuit court judge by the 12th Circuit Judicial Nominating Committee. Mr. Shults has served on the faculty of the Kessler-Eidson Program for Trial Techniques at Emory University School of Law and on the faculty of the National Institute for Trial Advocacy Program for Practicing Lawyers at Nova Southeastern University School of Law. Mr. Shults grew up in St. Petersburg, Florida and is a graduate of St. Petersburg High School (1973), Florida State University (B.S. 1977) and Washburn University School of Law (J.D. cum laude 1982). He is veteran of the United States Army.
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