Timely Issues in Florida Election Law: Topic 2 – Provisional Ballots

Given the projections for a close presidential race, Florida election law could once again take center stage in the days leading up to and following the election. With that possibility in mind, I will summarize in a series several legal issues that may come into play in November. This second in the series will address provisional ballots.

Provisional Ballots   (F.S. 101.048 and .049)

If the eligibility of a person to vote cannot be determined at the polling place or is challenged, that person has the right to submit a provisional ballot.  Provisional ballots are typically submitted when there is a question concerning if a person is registered or if it appears that he or she is at the wrong precinct.  Those whose eligibility is challenged on other grounds, such as non-citizenship, can also submit a provisional ballot.  Persons submitting a provisional ballot must also sign a sworn statement that they are eligible to vote in the precinct where the ballot is submitted. Thereafter the provisional ballot is placed in a sealed envelope which is delivered to the county canvassing board along with the sworn statement.

In determining whether to count the provisional ballot, the canvassing board can consider the sworn statement and other “written evidence” submitted by the person as well as “any other evidence” presented by the supervisor of elections or , if a voter challenge has been made, by the challenger. The provisional ballot must be counted unless the canvassing board determines by a preponderance of the evidence that the person was not entitled to vote, or if the signature on the sworn statement does not match the signature on the voter registration application.

Under F.S. 101.049 , any person who votes after normal poll-closing times pursuant to a court or other order which extends polling hours must vote with a provisional ballot.  Under these circumstances, the official at the poll will indicate on the sworn statement whether or not the information available at the poll reflected that the person was eligible to vote. The canvassing board is then required to determine whether the ballot is valid, although, unlike the circumstances described in  F.S. 101.048, the late ballot process in F.S. 101.049 does not address the submission and consideration of evidence.

If the election is close, the improper acceptance or rejection of provisional ballots by the canvassing board is a ground for an election contest suit.

See Topic 1 – Voter ChallengesTopic 3 – Challenges to Absentee Ballot  Certificate.

Topic 4 – Recounts. Topic 5 – Election Contests.

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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