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Election Law Update

Rolling Back the Rights of Florida’s Voters – Part 2: Limiting Early Voting

Early voting in Florida has its genesis in 1998 with the advent of “in person absentee voting” in the offices of the supervisor of elections.[i] “In person absentee voting” was discretionary with each supervisor of elections.  In 2000, additional procedures and formal requirements attendant to “in person absentee voting” were established.[ii] To utilize this method of absentee voting, an elector was required to certify that he or she was unable to attend the polls on election-day.[iii]  In 2001, this prerequisite to “in person absentee voting” was removed.[iv]

As a result of problems with the 2002 primary election in Broward and Miami-Dade counties, Interim Secretary of State Jim Smith encouraged vote statewide to “vote early” at the offices of the supervisors to help ease potential general election-day problems.[v] As a result, the Legislature, in 2004, enacted a mandatory and uniform early voting statute.[vi] 

The 2004 enactment mandated early voting in the main or branch office of the supervisor of elections.  Additionally, the supervisor was permitted to designate any city hall or public library as an early voting site so long as such site is geographically located so as to provide all voters in the county an equal opportunity to cast a ballot.  The legislation required that early voting begin on the 15^th day before an election and end on the day before an election.  During the applicable period, there would be an opportunity “for at least 8 hours per weekday” and “8 hours in the aggregate for each weekend.”[vii]

In 2005, the legislature made several changes to early voting law.  The law was amended to: clarify that early voting is a convenience, not a right; require the supervisor of elections to designate early voting sites no later than 30 days prior to the election and not allow a change in the sites thereafter except upon approval of the division; require early voting to end on the 2nd day before the election, rather than the day before the election; specify that early voting be conducted for 8 hours each weekday instead of at least 8 hours and 8 hours in the aggregate each weekend; require all early voting sites to be open on the same days and for the same amount of time at each site; creates an exemption from the 15-day early voting requirements for municipalities and special district elections that are not held in conjunction with state and county elections.[viii]

Early voting is popular among voters.  In the 2004 election cycle, statewide 18.7% of all voters voted early in the general election;[ix] in the 2006 cycle, statewide 16.1% of all voters voted early in the general election;[x] in the 2008 cycle, statewide 31.8% of all voters voted early in the general election;[xi] and in the 2010 cycle, 14.3% of all voters voted early in the general election.[xii] 

During the 2011 session the Legislature substantially revised the laws relating to early voting.[xiii]  Eliminated was the requirement that all early voting sites in a county be open on the same days for the same amount of time. The supervisor of elections must notify the Division of Elections no later than 30 days before an election of the address of each early voting site and the hours each will be open for early voting.  The previously mandated 15-day early voting period was reduced to eight days: early voting shall now begin on the 10^th day before an election and end on the 3^rd day before a state or federal election and in such elections early voting shall be conducted for not less than 6 and no more than 12 hours per day at each site during the early voting period.  Prior to the 2011, early voting was mandated for a period of 96 hours over a 13 day period. As a result of the 2011 amendments, the early voting period could be limited in state or federal elections to as few as 64 hours or a maximum of 96 hours over the 8 day period, within the discretion of each supervisor of elections.[xiv] 

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[i] See §17, Chapter 1998-129, Laws of Florida; codified at Section 101.657, Florida Statutes (1998). 

[ii] See §2, Chapter 2000-249, Laws of Florida; codified at Section 101.657, Florida Statutes (2000).

 [iii] Id.

[iv] See §55, Chapter 2001-40, Laws of Florida; codified at Section 101.657, Florida Statutes (2001).  In 2003, specific voter identification requirements for first time voters who had registered by mail were made applicable to “in person absentee voting.”  See §21, Chapter 2003-415, Laws of Florida; codified at Section 101.657, Florida Statutes (2003).

[v] See Senate Budget Committee, Bill Analysis and Fiscal Impact Statement for CS/CS/SB 2086,” p. 11. 

[vi] See §7, Chapter 2004-232, Laws of Florida, and §13, Chapter 2004-252, Laws of Florida; codified at Section 101.657, Florida Statutes (2004).

[vii] For the purposes of a special election, early voting would begin 8 days before an election and end on the day before the election.  See §13, Chapter 2004-252, Laws of Florida; codified at Section 101.657, Florida Statutes (2004).

[viii] See §45, Chapter 2005-277, Laws of Florida and Chapter 2005-278, Laws of Florida;  codified at Section 101.657, Florida Statutes (2005).

[ix] Department of State, Division of Elections, “November 2004 General Election Ballots Cast.”

[x] Department of State, Division of Elections, “November 2006 General Election Ballots Cast.”

[xi] Department of State, Division of Elections, “November 2008 General Election Ballots Cast.”

[xii] Department of State, Division of Elections, “November 2010 General Election Ballots Cast.”

[xiii] See Section 101.045(2)(b), Florida Statutes, as amended by §39,  Chapter 2011-40, Laws of Florida.  . 

[xiv] In Gustafson v. Illinois State Board of Elections, 2007 U.S. Dist. LEXIS 75209 (E.D. Ill. 2007), the court held that the Plaintiffs presented insufficient evidence to find that the inconsistencies in early voting from one jurisdiction to the next are so great that the federal judiciary and force the state to reconsider how it applies state law. 

Election Law Update

Rolling Back the Rights of Florida’s Voters – Part 1: Limiting the Ability to Change of Name or Address at the Polling Place on Election Day

In 1971, Florida law[i] was amended to provide that an elector whose name changed because of marriage or other legal process may vote in the precinct in which he or she is registered by executing an affidavit attesting to the name change.  An elector who had moved from the precinct in which registered would be permitted to vote in the precinct of his or her former residence within the county.[ii] 

In 1977, the law[iii] was further amended to permit an elector who moved from the precinct within the county in which registered to another precinct within the county to vote in the precinct where he moved his residence upon execution of an affidavit setting forth the precinct in which he or she is registered to vote as well as his or current residence.[iv]  In that enactment, an elector who changed his or her residence to another county within the state would be permitted to vote in that election for President and Vice-President of the United States, United States Senator, and for statewide offices.[v]

With minor substantive modification, this statutory scheme was in effect at the time of the 2000 presidential election.[vi]  In the wake of the 2000 election, Governor Jeb Bush established a Select Task Force on Election Procedures and Technology to “make written policy recommendations and / or proposed legislation to improve the election procedures, standards and technology in each of Florida’s 67 counties.”[vii]

In the course of its deliberations, the Select Task Force considered reports that during the 2000 general election that numerous voters had been denied their right to vote under the applicable procedures because they sought to vote up at the wrong precinct, had moved and had not changed their addresses, or had not timely registered to vote.[viii]  While the Task Force did not investigate individual cases, it made the following recommendation:

The Division of Elections should examine viable options for using provisional ballots so that voters whose eligibility is in question at the polling place on election days can submit in appropriate races subject to verification of their eligibility.[ix]

Accordingly, Florida law was amended to require that any elector whose name or residence had changed within the county and whose eligibility to vote could not be determined would be required to vote a provisional ballot, subject to verification by the canvassing board.[x]  Neither the Select Task Force nor the Legislature recommended or made any changes to Florida law which permitted an elector, who changed his or her residence to another county within the state, to vote in that election for President and Vice-President of the United States, United States Senator, and for statewide offices.

The Select Task Force, noting that representative democracy demands that all eligible voters have an opportunity to participate in the election process, recommended “that the Florida Legislature provide funds for the design of a comprehensive statewide online voter registration database to replace the current ‘batch’ system and begin implementing the database as soon as possible.”[xi]  To that end, in 2001, the Legislature appropriated $2 million to the Department of State “for the analysis, design, development, operation of a statewide voter registration database….”[xii]  In 2005, the Secretary of State, as the chief elections officer of the State of Florida, was specifically tasked with the responsibility for implementing, operating, and maintaining, the statewide voter registration system.[xiii]

 In 2005, Florida law was amended to allow voters that move within the state (not just in their respective counties) to vote in their new precinct upon execution of an affidavit setting forth the precinct and county in which he or she is registered to vote as well as his or current residence.[xiv] In the same legislative enactment, because statewide residence changes were authorized, the Legislature deleted provisions of Florida law which permitted an elector who changed his or her residence to another county within the state to vote in that election for President and Vice-President of the United States, United States Senator, and for statewide offices.[xv]  With minor substantive modification, this statutory scheme was in effect prior to the 2011 legislative session.[xvi]

During the 2011 legislative session, the Legislature amended Florida law to limit the ability of electors to vote when they have moved without changing their address with the supervisor of elections prior to the voter registration book closing date. The amendment creates three classes of electors: electors who move within the county; electors who move from outside the county; and electors who move from outside the county and who are members of the military and their families.[xvii]

An elector who moves from a precinct within the county in which he or she is registered to another precinct within the county is permitted to vote a regular ballot in the precinct where he or she has moved, upon execution of an affidavit setting forth the precinct in which he or she is registered to vote as well as his or her current residence. If elector moves from a precinct outside the county, he or she may not change his or her residence at the polling place and vote a regular ballot; rather he or she must vote a provisional ballot.  However, members of the military and their families who change their address from outside the county are not limited to voting a provisional ballot. Upon execution of the affidavit, they will be permitted to vote a regular ballot.[xviii]

It is not yet clear what the effect of the bill will be on electors, other than members of the military and their families, who move from a precinct outside the county. The bill says they will vote a provisional ballot, but will that vote count.  While such an elector may not change his or her residence at the polling place at the time of the election, it has been argued by some that the provisional ballot will be counted if the canvassing board determines that the elector was a registered Florida voter in another Florida county and that he or she did not otherwise vote in that election. However, inasmuch as the amendment specifically states that “except for an active military uniformed service voter or a member of his or her family, an elector whose address is from outside the county may not change his or her legal residence at the polling place and vote a regular ballot, however, such an elector is entitled to vote a provisional ballot.”[xix]

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[i] Section 97.091, Florida Statutes (1971); renumbered as Section 101.045, Florida Statutes, by §20, Chapter 1994-224, Laws of Florida.

[ii] See §1, Chapter 1971-307, Laws of Florida. 

[iii] Section 97.091, Florida Statutes (1977); renumbered as Section 101.663, Florida Statutes, by §20, Chapter 1994-224, Laws of Florida.

[iv] See §3, Chapter 1977-175, Laws of Florida.

[v] Section 97.102, Florida Statutes (1997); renumbered as Section 101.663, Florida Statutes, by §22, Chapter 1994-224, Laws of Florida.

[vi] See §6, Chapter 1978-403, Laws of Florida; §4, Chapter 1980-292, Laws of Florida; §5, Chapter 1989-338, Laws of Florida; §20, Chapter 1994-224, Laws of Florida; §1391, Chapter 1995-147, Laws of Florida. 

[vii] Executive Order 2000-349, December 14, 2000.

[viii] The Governor’s Select Task Force on Elections Procedures, Standards and Technology, “Revitalizing Democracy in Florida,” (March 1, 2001), p. 56.

[ix] Id.

[x] See §§35, 36, Chapter 2001-40, Laws of Florida.

[xi] The Governor’s Select Task Force on Elections Procedures, Standards and Technology, “Revitalizing Democracy in Florida,” (March 1, 2001), p. 51.

[xii] See §71, Chapter 2001-40, Laws of Florida.

[xiii] See Section 98.035, Florida Statutes, as created by §17, Chapter 2005-278, Florida Statutes.

[xiv] See §31, Chapter 2005-278, Laws of Florida. 

[xv] See §40, Chapter 2005-278, Laws of Florida.

[xvi] See §16, Chapter 2008-95, Laws of Florida.

[xvii] Section 101.045(2)(b), Florida Statutes, as amended by §26,  Chapter 2011-40, Laws of Florida.    

[xviii] It is well established:

The right to vote is protected is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.  Having once granted the right on equal terms, the State may not, by arbitrary and disparate treatment, value one person’s vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665, 16 L. Ed. 2d 169, 86 S. Ct. 1079 (1966) (“Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”) It must be remembered that “the right of suffrage can be denied by debasement or dilution of the weight of the citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555, 12 L. Ed. 2d 506, 84 S. Ct.1362 (1964).

Bush v. Gore, 531 U.S. 98, 104-105, 121 S. Ct. 525, 530, 148 L. Ed.388, 398 (2000).    

[xix] Section 101.045(2)(b), Florida Statutes, as amended by §26,  Chapter 2011-40, Laws of Florida.