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florida > The Florida Election Code > General, Primary, Special, Bond, And Referendum Elections

§ 100.111 Filling vacancy.

Overview of Statute

If a party has a vacancy in nomination in the event of death, resignation, withdrawal, or removal, the filing officer must notify the chair of the state and the county political party executive committee and: if the vacancy is for a statewide office, the state party chair has to call a meeting of the executive board within 5 days to consider who to nominate. If the vacancy is for the office of US Representative, state senator, state representative, state attorney, or public defender, the state party chair notifies the relevant county chair, and within 5 days, the county chair has to call a meeting of the members of the county’s executive committee to designate a nominee. If the vacancy is for a county office, the state party chair has to notify the relevant county chair, and the county chair has to call a meeting within 5 days of his or her executive committee to designate a nominee. The designated nominee has to be submitted to the filing officer within 7 days after notice to the chair, so the designated person can have his or her name on the ballot. If the nominee’s name is submitted after the certification of results of the primary, the ballots will not be changed, and the former nominee will be on the ballot. However, any ballots cast for the former nominee are counted for the designated nominee. If there is no opposition to the nominee, the designated nominee will be elected at the general election. When vacancies have to be filled by committee nominations, they are filled by party rule. Designated nominees have to pay the same filing fee and take the same oath as he or she would have taken had he or she regularly qualified. Any person who qualified for nomination, or who attempted to qualify and failed, is prohibited from qualifying as a candidate to fill a vacancy for any other office that is to be filled at the upcoming general election, even if he or she withdrew or has been eliminated as a candidate for the original office he or she sought. This does not apply to a candidate for the office of Lieutenant Governor who applies to fill a vacancy in nomination for the office of Governor on the same ticket, or to a person who has withdrawn or has been eliminated and is then designated as a candidate for Lieutenant Governor. There is no vacancy if a court order determines that a nominee did not properly qualify to hold the office he or she wanted to qualify for. In an unforeseeable circumstance, the Department of State has the authority to provide for orderly elections.

Statute

(1)

(a) If any vacancy occurs in any office which is required to be filled pursuant to s. 1(f), Art. IV of the State Constitution and the remainder of the term of such office is 28 months or longer, then at the next general election a person shall be elected to fill the unexpired portion of such term, commencing on the first Tuesday after the first Monday following such general election.
(b) If such a vacancy occurs prior to the first day set by law for qualifying for election to office at such general election, any person seeking nomination or election to the unexpired portion of the term shall qualify within the time prescribed by law for qualifying for other offices to be filled by election at such general election.
(c) If such a vacancy occurs prior to the primary election but on or after the first day set by law for qualifying, the Secretary of State shall set dates for qualifying for the unexpired portion of the term of such office. Any person seeking nomination or election to the unexpired portion of the term shall qualify within the time set by the Secretary of State. If time does not permit party nominations to be made in conjunction with the primary election, the Governor may call a special primary election to select party nominees for the unexpired portion of such term.

(2) Whenever there is a vacancy for which a special election is required pursuant to s. 100.101, the Governor, after consultation with the Secretary of State, shall fix the dates of a special primary election and a special election. Nominees of political parties shall be chosen under the primary laws of this state in the special primary election to become candidates in the special election. Prior to setting the special election dates, the Governor shall consider any upcoming elections in the jurisdiction where the special election will be held. The dates fixed by the Governor shall be specific days certain and shall not be established by the happening of a condition or stated in the alternative. The dates fixed shall provide a minimum of 2 weeks between each election. In the event a vacancy occurs in the office of state senator or member of the House of Representatives when the Legislature is in regular legislative session, the minimum times prescribed by this subsection may be waived upon concurrence of the Governor, the Speaker of the House of Representatives, and the President of the Senate. If a vacancy occurs in the office of state senator and no session of the Legislature is scheduled to be held prior to the next general election, the Governor may fix the dates for the special primary election and for the special election to coincide with the dates of the primary election and general election. If a vacancy in office occurs in any district in the state Senate or House of Representatives or in any congressional district, and no session of the Legislature, or session of Congress if the vacancy is in a congressional district, is scheduled to be held during the unexpired portion of the term, the Governor is not required to call a special election to fill such vacancy.

(a) The dates for candidates to qualify in such special election or special primary election shall be fixed by the Department of State, and candidates shall qualify not later than noon of the last day so fixed. The dates fixed for qualifying shall allow a minimum of 14 days between the last day of qualifying and the special primary election.
(b) The filing of campaign expense statements by candidates in such special elections or special primaries and by committees making contributions or expenditures to influence the results of such special primaries or special elections shall be not later than such dates as shall be fixed by the Department of State, and in fixing such dates the Department of State shall take into consideration and be governed by the practical time limitations.
(c) The dates for a candidate to qualify by the petition process pursuant to s. 99.095 in such special primary or special election shall be fixed by the Department of State. In fixing such dates the Department of State shall take into consideration and be governed by the practical time limitations. Any candidate seeking to qualify by the petition process in a special primary election shall obtain 25 percent of the signatures required by s. 99.095.
(d) The qualifying fees and party assessments of such candidates as may qualify shall be the same as collected for the same office at the last previous primary for that office. The party assessment shall be paid to the appropriate executive committee of the political party to which the candidate belongs.
(e) Each county canvassing board shall make as speedy a return of the result of such special primary elections and special elections as time will permit, and the Elections Canvassing Commission likewise shall make as speedy a canvass and declaration of the nominees as time will permit.

(3)

(a) In the event that death, resignation, withdrawal, or removal should cause a party to have a vacancy in nomination which leaves no candidate for an office from such party, the filing officer before whom the candidate qualified shall notify the chair of the state and county political party executive committee of such party and:

1. If the vacancy in nomination is for a statewide office, the state party chair shall, within 5 days, call a meeting of his or her executive board to consider designation of a nominee to fill the vacancy.
2. If the vacancy in nomination is for the office of United States Representative, state senator, state representative, state attorney, or public defender, the state party chair shall notify the appropriate county chair or chairs and, within 5 days, the appropriate county chair or chairs shall call a meeting of the members of the executive committee in the affected county or counties to consider designation of a nominee to fill the vacancy.
3. If the vacancy in nomination is for a county office, the state party chair shall notify the appropriate county chair and, within 5 days, the appropriate county chair shall call a meeting of his or her executive committee to consider designation of a nominee to fill the vacancy.

The name of any person so designated shall be submitted to the filing officer before whom the candidate qualified within 7 days after notice to the chair in order that the person designated may have his or her name on the ballot of the ensuing general election. If the name of the new nominee is submitted after the certification of results of the preceding primary election, however, the ballots shall not be changed and the former party nominee’s name will appear on the ballot. Any ballots cast for the former party nominee will be counted for the person designated by the political party to replace the former party nominee. If there is no opposition to the party nominee, the person designated by the political party to replace the former party nominee will be elected to office at the general election.

(b) When, under the circumstances set forth in the preceding paragraph, vacancies in nomination are required to be filled by committee nominations, such vacancies shall be filled by party rule. In any instance in which a nominee is selected by a committee to fill a vacancy in nomination, such nominee shall pay the same filing fee and take the same oath as the nominee would have taken had he or she regularly qualified for election to such office.
(c) Any person who, at the close of qualifying as prescribed in ss. 99.061 and 105.031, was qualified for nomination or election to or retention in a public office to be filled at the ensuing general election or who attempted to qualify and failed to qualify is prohibited from qualifying as a candidate to fill a vacancy in nomination for any other office to be filled at that general election, even if such person has withdrawn or been eliminated as a candidate for the original office sought. However, this paragraph does not apply to a candidate for the office of Lieutenant Governor who applies to fill a vacancy in nomination for the office of Governor on the same ticket or to a person who has withdrawn or been eliminated as a candidate and who is subsequently designated as a candidate for Lieutenant Governor under s. 99.063.

(4) A vacancy in nomination is not created if an order of a court that has become final determines that a nominee did not properly qualify or did not meet the necessary qualifications to hold the office for which he or she sought to qualify.
(5) In the event of unforeseeable circumstances not contemplated in these general election laws concerning the calling and holding of special primary elections and special elections resulting from court order or other unpredictable circumstances, the Department of State shall have the authority to provide for the conduct of orderly elections.

History:

s. 4, ch. 26870, 1951; s. 16, ch. 28156, 1953; s. 1, ch. 29938, 1955; s. 1, ch. 57-91; s. 1, ch. 59-139; s. 2, ch. 65-240; ss. 10, 35, ch. 69-106; s. 1, ch. 73-191; s. 1, ch. 74-120; s. 12, ch. 77-175; s. 30, ch. 79-400; s. 4, ch. 83-15; s. 1, ch. 83-149; s. 15, ch. 89-338; s. 3, ch. 90-229; s. 13, ch. 90-315; s. 546, ch. 95-147; s. 1, ch. 95-197; s. 5, ch. 99-140; s. 12, ch. 99-318; s. 20, ch. 2005-277; s. 13, ch. 2005-286; s. 23, ch. 2007-30; s. 22, ch. 2011-40.

Definition [Expenditure]

(a) A purchase, payment, distribution, loan, advance, transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, or gift of money or anything of value made for the purpose of influencing the results of an election or making an electioneering communication. However, “expenditure” does not include a purchase, payment, distribution, loan, advance, or gift of money or anything of value made for the purpose of influencing the results of an election when made by an organization, in existence before the time during which a candidate qualifies or an issue is placed on the ballot for that election, for the purpose of printing or distributing such organization’s newsletter, containing a statement by such organization in support of or opposition to a candidate or issue, which newsletter is distributed only to members of such organization.

(b) As used in chapter 106, an “expenditure” for an electioneering communication is made when the earliest of the following occurs:

1. A person enters into a contract for applicable goods or services;

2. A person makes payment, in whole or in part, for the production or public dissemination of applicable goods or services; or

3. The electioneering communication is publicly disseminated. Fla. Stat. § 106.011(10).

Definition [Contribution]

(a) A gift, subscription, conveyance, deposit, loan, payment, or distribution of money or anything of value, including contributions in kind having an attributable monetary value in any form, made for the purpose of influencing the results of an election or making an electioneering communication.

(b) A transfer of funds between political committees, between electioneering communications organizations, or between any combination of these groups.

(c) The payment, by a person other than a candidate or political committee, of compensation for the personal services of another person which are rendered to a candidate or political committee without charge to the candidate or committee for such services.

(d) The transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, and the term includes interest earned on such account or certificate.

Notwithstanding the foregoing meanings of “contribution,” the term may not be construed to include services, including, but not limited to, legal and accounting services, provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or political committee or editorial endorsements. Fla. Stat. § 106.011(5).

Definition [Public Office]

Any federal, state, county, municipal, school, or other district office or position which is filled by vote of the electors. Fla. Stat. § 97.021(32).

Definition [Public Office]

A state, county, municipal, or school or other district office or position that is filled by vote of the electors. Fla. Stat. § 97.021(32).

Definition [Filing Officer]

The person before whom a candidate qualifies or the agency or officer with whom a political committee or an electioneering communications organization registers. Fla. Stat. § 106.011(11).

Definition [General Election]

An election held on the first Tuesday after the first Monday in November in the even-numbered years, for the purpose of filling national, state, county, and district offices and for voting on constitutional amendments not otherwise provided for by law. Fla. Stat. § 97.021(16).

Definition [Primary Election]

An election held preceding the general election for the purpose of nominating a party nominee to be voted for in the general election to fill a national, state, county, or district office. Fla. Stat. § 97.021(29).

Definition [Special Election]

A special election called for the purpose of voting on a party nominee to fill a vacancy in the national, state, county, or district office. Fla. Stat. § 97.021(34).

Definition [Special Primary Election]

A special nomination election designated by the Governor, called for the purpose of nominating a party nominee to be voted on in a general or special election.

Definition [Ballot]

As used in the Electronic Voting Systems Act, ballot means the card, tape, or other vehicle upon which the elector’s choices are recorded. Fla. Stat. § 101.5603(2).

Definition [Person]

An individual or a corporation, association, firm, partnership, joint venture, joint stock company, club, organization, estate, trust, business trust, syndicate, or other combination of individuals having collective capacity. The term includes a political party, affiliated party committee, or political committee. Fla. Stat. § 106.011(14).

Definition [Election]

Any primary election, special primary election, special election, general election, or presidential preference primary election. Fla. Stat. § 97.021(12).

Definition [Candidate]

Any person to whom any one or more of the following applies:

(a) Any person who seeks to qualify for nomination or election by means of the petitioning process.
(b) Any person who seeks to qualify for election as a write-in candidate.
(c) Any person who receives contributions or makes expenditures, or gives his or her consent for any other person to receive contributions or make expenditures, with a view to bringing about his or her nomination or election to, or retention in, public office.
(d) Any person who appoints a treasurer and designates a primary depository.
(e) Any person who files qualification papers and subscribes to a candidate’s oath as required by law.
This definition does not include any candidate for a political party executive committee. Fla. Stat. § 97.021(6).

Cases

florida Cases

Case Name: Cobb v. Thurman

Citation: 957 So.2d 638

Year: 2006

Case URL: https://www.ravellaw.com/opinions/9bb232d6758fd440b7c1aecce47ae227?query=957%20S[...]

Case Summary: Cobb v. Thurman held that the Secretary of State’s posted notice that a vote for a withdrawn congressional candidate from an opposing political party would be a vote for the party’s substitute candidate violated the impartiality requirements of the Election Code, but that the notice proposed by the supervisors of elections, which also stated that a vote for the withdrawn candidate was a vote for the substituted candidate, but also included the names of every other candidate for that office, satisfied the impartiality requirements under the Election Code.

Case Name: Florida Dept. of State, Div. of Elections v. Martin

Citation: 916 So.2d 763

Year: 2005

Case URL: https://www.ravellaw.com/opinions/70a207501b368ff1b57025af9e8efc6d

Case Summary: Florida Dept. of State, Div. of Elections v. Martin held that the grant of discretion to the Department of State to allow a candidate to withdraw after the 42nd day before an election delegated legislative authority that violated separation of powers, and that the unconstitutional provision was not severable.

Case Name: Smith v. Crawford

Citation: 645 So.2d 513

Year: 1994

Case URL: https://www.ravellaw.com/opinions/2648dd00396b3b7d0dde069c6a0bfbd7

Case Summary: Smith v. Crawford held that the incumbent Commissioner of Agriculture was not required to pursue administrative remedies before bringing action against the other Commissioner of Agriculture candidate, who had withdrawn from the gubernatorial race, seeking declaratory and injunctive relief based on his challenge to the other candidate’s eligibility to be party nominee. However, the candidate who had withdrawn from the gubernatorial race was not prohibited from qualifying as the party’s nominee for Commissioner of Agriculture, since a candidate who withdraws from one race can become a candidate for a newly designated office for which he or she can qualify.

Case Name: Kane v. Robbins

Citation: 556 So.2d 1381

Year: 1989

Case URL: https://www.ravellaw.com/opinions/8ae9bc8cec06a502f08c4074f920b30b

Case Summary: Kane v. Robbins held that a school board is not a special district for purposes of the State Constitution section that prohibits special laws pertaining to election/jurisdiction/duties of officers except officers of special districts and local governmental agencies. Therefore, the special act providing for nonpartisan school board elections was unconstitutional.

Case Name: Republican State Executive Committee v. Graham

Citation: 388 So.2d 556

Year: 1980

Case URL: https://www.ravellaw.com/opinions/8130151b0afb9a6e02475e833d51808b

Case Summary: Republican State Executive Committee v. Graham held that the statute governing candidates for nomination who were entitled to have their names printed on the official primary ballot clearly stated that if there was only one candidate, that candidate was automatically nominated for office. Further, the Governor had a legal duty to call for a special primary when the sole qualifier for a legislative seat withdrew from the race.

Case Name: In re Advisory Opinion of Governor, Broward School Bd. Vacancies

Citation: 302 So.2d 748

Year: 1974

Case URL: https://www.ravellaw.com/opinions/a7ecf0234f08d69a14213dda06a5c422

Case Summary: In re Advisory Opinion of Governor, Broward School Bd. Vacancies held that the county chairmen of both parties should be requested to determine whether they would provide a nominee for their party at the next general election. If no candidate were offered, the offices would become operative on the day of the next general election, and the Governor would be able to fill the vacancies by appointment.

Out-of-State Cases

Federal Cases

Case Name: Anderson v. Firestone

Citation: 499 F. Supp. 1027

Federal District Court: Northern District of Florida

Year: 1980

Case URL: https://www.ravellaw.com/opinions/830210e4ac8d165420b304e0fd3d048d

Case Summary: Anderson v. Firestone held that an independent candidate for president was denied equal protection when Florida failed to provide a mechanism for filling a vacancy caused when the vice presidential candidate listed on the independent candidate's petition withdrew, since the petitions had to be filed before the presidential candidate chose his actual running mate.

Regulations & Guidance

Additional Resources

Further Reading

  • Fla. Jur. 2d Elections s 13, Generally

  • Fla. Jur. 2d Elections s 15, Qualification of candidates; filing fees and campaign expenses

  • Fla. Jur. 2d Elections s 17, Canvassing returns; determination of person nominated or elected

  • Fla. Jur. 2d Elections s 91, Nomination by conention, caucus, or executive committee of political party

  • Fla. Jur. 2d Elections s 97, To fill vacancies in nominations

  • Fla. Jur. 2d Elections s 98, To fill vacancies in offices

  • Fla. Jur. 2d Elections s 117, Ordering or calling

  • Validity, Construction, and Application of State Statutory Requirements Concering Placement of Independent Candidate of President of the United States on Ballot, 33 A.L.R.6th 513

  • Construction and application of statutes relating to filling vacancies in nomination for election to public office, 143 A.L.R. 996