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Florida > The Florida Election Code > Voting Methods And Procedure

§ 101.048 Provisional ballots.

Overview of Statute

This statute outlines the procedure by which provisional ballots are used on election day. Voters whose eligibility cannot be determined are entitled to cast provisional ballots. Provisional ballots are retained by the supervisor of elections, and voters who cast provisional ballots can present evidence of their eligibility to vote no later than the 2nd day after the election. The statute then provides the text of the Provisional Ballot Voter’s Certificate and Affirmation. All voters casting provisional ballots are given written instructions on how to provide evidence of eligibility to vote.

Statute

(1) At all elections, a voter claiming to be properly registered in the state and eligible to vote at the precinct in the election but whose eligibility cannot be determined, a person whom an election official asserts is not eligible, and other persons specified in the code shall be entitled to vote a provisional ballot. Once voted, the provisional ballot shall be placed in a secrecy envelope and thereafter sealed in a provisional ballot envelope. The provisional ballot shall be deposited in a ballot box. All provisional ballots shall remain sealed in their envelopes for return to the supervisor of elections. The department shall prescribe the form of the provisional ballot envelope. A person casting a provisional ballot shall have the right to present written evidence supporting his or her eligibility to vote to the supervisor of elections by not later than 5 p.m. on the second day following the election.

(2)
(a) The county canvassing board shall examine each Provisional Ballot Voter’s Certificate and Affirmation to determine if the person voting that ballot was entitled to vote at the precinct where the person cast a vote in the election and that the person had not already cast a ballot in the election. In determining whether a person casting a provisional ballot is entitled to vote, the county canvassing board shall review the information provided in the Voter’s Certificate and Affirmation, written evidence provided by the person pursuant to subsection (1), any other evidence presented by the supervisor of elections, and, in the case of a challenge, any evidence presented by the challenger. A ballot of a person casting a provisional ballot shall be counted unless the canvassing board determines by a preponderance of the evidence that the person was not entitled to vote.
(b)
1. If it is determined that the person was registered and entitled to vote at the precinct where the person cast a vote in the election, the canvassing board shall compare the signature on the Provisional Ballot Voter’s Certificate and Affirmation with the signature on the voter’s registration and, if it matches, shall count the ballot.
2. If it is determined that the person voting the provisional ballot was not registered or entitled to vote at the precinct where the person cast a vote in the election, the provisional ballot shall not be counted and the ballot shall remain in the envelope containing the Provisional Ballot Voter’s Certificate and Affirmation and the envelope shall be marked “Rejected as Illegal.”

(3) The Provisional Ballot Voter’s Certificate and Affirmation shall be in substantially the following form:

STATE OF FLORIDA

COUNTY OF  

I do solemnly swear (or affirm) that my name is  ; that my date of birth is  ; that I am registered and qualified to vote in   County, Florida; that I am registered in the   Party; that I am a qualified voter of the county; and that I have not voted in this election. I understand that if I commit any fraud in connection with voting, vote a fraudulent ballot, or vote more than once in an election, I can be convicted of a felony of the third degree and fined up to $5,000 and/or imprisoned for up to 5 years.

  (Signature of Voter)  

  (Current Residence Address)  

  (Current Mailing Address)  

  (City, State, Zip Code)  

  (Driver License Number or Last Four Digits of Social Security Number)  

Sworn to and subscribed before me this   day of   ,   (year)  .

  (Election Official)  

Precinct #       Ballot Style/Party Issued:  

(4) Notwithstanding the requirements of subsections (1), (2), and (3), the supervisor of elections may, and for persons with disabilities shall, provide the appropriate provisional ballot to the voter by electronic means that meet the requirements of s. 101.56062, as provided for by the certified voting system. Each person casting a provisional ballot by electronic means shall, prior to casting his or her ballot, complete the Provisional Ballot Voter’s Certificate and Affirmation as provided in subsection (3).
(5) Each person casting a provisional ballot shall be given written instructions regarding the person’s right to provide the supervisor of elections with written evidence of his or her eligibility to vote and regarding the free access system established pursuant to subsection (6). The instructions shall contain information on how to access the system and the information the voter will need to provide to obtain information on his or her particular ballot. The instructions shall also include the following statement: “If this is a primary election, you should contact the supervisor of elections’ office immediately to confirm that you are registered and can vote in the general election.”
(6) Each supervisor of elections shall establish a free access system that allows each person who casts a provisional ballot to determine whether his or her provisional ballot was counted in the final canvass of votes and, if not, the reasons why. Information regarding provisional ballots shall be available no later than 30 days following the election. The system established must restrict information regarding an individual ballot to the person who cast the ballot.

History:

s. 35, ch. 2001-40; s. 6, ch. 2002-17; s. 15, ch. 2003-415; s. 24, ch. 2005-277; s. 32, ch. 2005-278; s. 27, ch. 2007-30.

Definition [Voting System]
A method of casting and processing votes that functions wholly or partly by use of electromechanical or electronic apparatus or by use of marksense ballots and includes, but is not limited to, the procedures for casting and processing votes and the programs, operating manuals, supplies, printouts, and other software necessary for the system’s operation. Fla. Stat. § 97.021(45).
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 [Secrecy Envelope]

As used in the Electronic Voting Systems Act, secrecy envelope means an opaque device, used for enclosing a marked ballot, which conceals the voter’s choices.

Definition [Provisional Ballot]

A conditional ballot, the validity of which is determined by the canvassing board.

Definition [Persons with Disabilities]

Individuals who have a physical or mental impairment that substantially limits one or more major life activities. Fla. Stat. § 97.021(26).

Definition [Issue]

A proposition that is required by the State Constitution, by law or resolution of the Legislature, or by the charter, ordinance, or resolution of a political subdivision of this state to be submitted to the electors for their approval or rejection at an election, or a proposition for which a petition is circulated in order to have such proposition placed on the ballot at an election. Fla. Stat. § 106.011(13).

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).

Cases

Florida Cases

Out-of-State Cases

Case State: florida

Case Name: American Federation of Labor and Congress of Industrial Organizations v. Hood

Citation: 885 So.2d 373

Year: 2004

Case URL: https://www.ravellaw.com/opinions/2df26bcfae7e304da6fdaffe0bd5d363?query=885%20S[...]

Case Summary: AFL-CIO v. Hood held that the precinct-specific provision of s.101.048 was constitutional, as there was no unreasonable or unnecessary restraint on the electoral process.

Federal Cases

Case Name: Florida v. U.S.

Citation: 885 F. Supp. 2d 299

Federal District Court: D.D.C.

Year: 2012

Case URL: https://perma.cc/TS63-HLXB

Case Summary: Not preclearing Florida's early voting changes under § 5 of the Voting Rights Act, because the State failed to satisfy its burden of proving that those changes would not have a retrogressive effect on minority voters. The changes required only a minimum number of early voting hours, and that number represented about half of the hours required under the prior law.

Case Name: Florida State Conference of N.A.A.C.P. v. Browning

Citation: 522 F.3d 1153

Federal Circuit Court: 11th Circuit Court

Year: 2008

Case URL: https://www.ravellaw.com/opinions/55f20b519298f8b407adce67c3c2487b

Case Summary: Florida State Conference of the NAACP v. Browning held that Florida Code § 97.053(6) was not preempted by HAVA.

Case Name: Sandusky County Democratic Party v. Blackwell

Citation: 387 F.3d 565

Federal Circuit Court: 6th Circuit Court

Year: 2004

Case URL: https://www.ravellaw.com/opinions/50d84d3af5c3a194128613360796774f?query=Sandusk[...]

Case Summary: Sandusky County Democratic Party v. Blackwell held that a provisional ballot cast in a precinct where the voter does not live and would not be valid under state law are not required by HAVA to be considered legal votes.

Case Name: Florida Democratic Party v. Hood

Citation: 342 F.Supp.2d 1073

Federal District Court: Northern District of Florida

Year: 2004

Case URL: https://www.ravellaw.com/opinions/f8ed406a86e6040346d1c9bb29736aaa?query=Florida[...]

Case Summary: Florida Democratic Party v. Hood held that the Florida Democratic Party had standing to sue on behalf of voters who would be denied the chance to cast provisional ballots; that HAVA did not require ballots cast in wrong precincts to be counted; that HAVA did require that voters who thought they were registered be given the chance to cast provisional ballots; and that requirements for issuing a preliminary injunction requiring the distribution of provisional ballots were satisfied, after the Party sued Florida, seeking a preliminary injunction preventing election workers from denying provisional ballots to prospective voters who they believed were not registered.

Regulations & Guidance

Additional Resources

Further Reading

  • Fla. Jur. 2d Elections s 153, Voting instructions

  • Fla. Jur. 2d Elections s 154, Poll watchers; challenges

  • Fla. Jur. 2d Elections s 155, Provisional ballots

  • Fla. Jur. 2d Elections s 156, Provisional ballots-Special circumstances

  • Fla. Jur. 2d Elections s 164, Casting ballots