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florida > The Florida Election Code > Conducting Elections And Ascertaining The Results

§ 102.168 Contest of election.

Overview of Statute

This statute governs the procedure by which elections can be contested. The certification of an election can be contested in circuit court by an unsuccessful candidate, a qualified voter, and any taxpayer. The contestant has 10 days after midnight on the date of the certification. There are four grounds for contesting an election, and the canvassing board, the Elections Canvassing Commission, and the successful candidate can all be indispensable parties, depending on which type of election is being contested.

Statute

(1) Except as provided in s. 102.171, the certification of election or nomination of any person to office, or of the result on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto or by any elector qualified to vote in the election related to such candidacy, or by any taxpayer, respectively.

(2) Such contestant shall file a complaint, together with the fees prescribed in chapter 28, with the clerk of the circuit court within 10 days after midnight of the date the last board responsible for certifying the results officially certifies the results of the election being contested.

(3) The complaint shall set forth the grounds on which the contestant intends to establish his or her right to such office or set aside the result of the election on a submitted referendum. The grounds for contesting an election under this section 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.
(4) The canvassing board responsible for canvassing the election is an indispensable party defendant in county and local elections. The Elections Canvassing Commission is an indispensable party defendant in federal, state, and multicounty elections and in elections for justice of the Supreme Court, judge of a district court of appeal, and judge of a circuit court. The successful candidate is an indispensable party to any action brought to contest the election or nomination of a candidate.
(5) A statement of the grounds of contest may not be rejected, nor the proceedings dismissed, by the court for any want of form if the grounds of contest provided in the statement are sufficient to clearly inform the defendant of the particular proceeding or cause for which the nomination or election is contested.
(6) A copy of the complaint shall be served upon the defendant and any other person named therein in the same manner as in other civil cases under the laws of this state. Within 10 days after the complaint has been served, the defendant must file an answer admitting or denying the allegations on which the contestant relies or stating that the defendant has no knowledge or information concerning the allegations, which shall be deemed a denial of the allegations, and must state any other defenses, in law or fact, on which the defendant relies. If an answer is not filed within the time prescribed, the defendant may not be granted a hearing in court to assert any claim or objection that is required by this subsection to be stated in an answer.
(7) Any candidate, qualified elector, or taxpayer presenting such a contest to a circuit judge is entitled to an immediate hearing. However, the court in its discretion may limit the time to be consumed in taking testimony, with a view therein to the circumstances of the matter and to the proximity of any succeeding election.
(8) In any contest that requires a review of the canvassing board’s decision on the legality of a vote-by-mail ballot pursuant to s. 101.68 based upon a comparison of the signature on the voter’s certificate and the signature of the elector in the registration records, the circuit court may not review or consider any evidence other than the signature on the voter’s certificate and the signature of the elector in the registration records. The court’s review of such issue shall be to determine only if the canvassing board abused its discretion in making its decision.

History:

ss. 7, 8, Art. 10, ch. 38, 1845; RS 199; GS 283; RGS 379; CGL 444; s. 3, ch. 26870, 1951; s. 16, ch. 65-378; s. 28, ch. 77-175; s. 49, ch. 79-400; s. 602, ch. 95-147; s. 3, ch. 99-339; s. 44, ch. 2001-40; s. 60, ch. 2005-277; s. 44, ch. 2011-40; s. 35, ch. 2016-37.
Former s. 104.06; s. 99.192; s. 102.161.
Annotation: April 8, 2016 1:51 pm

The Florida House and Senate are the sole judges of the qualifications, elections and returns of their members. Accordingly, the provisions of this section do not apply to an election contest involving legislative office.

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 [Elector]

“Elector” is synonymous with the word “voter” or “qualified elector or voter,” except where the word is used to describe presidential electors. Fla. Stat. § 97.021(15).

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: Gore v. Harris

Citation: 773 So.2d 524

Year: 2000

Case URL: https://www.ravellaw.com/opinions/16990a46dcc2ad479b9eeb904e277a45

Case Summary: Gore v. Harris held that because adequate standards for a manual recount could not be developed by the deadline set by the United States Supreme Court, appellants Gore and Lieberman were given no relief.

Case Name: Greene v. Clemens

Citation: 98 So.3d 791

Year: 2012

Case URL: https://www.ravellaw.com/opinions/4f9920136a3e4d67edf0f46981314723

Case Summary: When a candidate and two electors filed a complaint to contest the results of a state senate primary election, the Circuit Court upheld the result of the election. On appeal, the appellate court held that the Circuit Court's authority on the matter extended only to the review of electors' signatures on voter certificates and elector signatures in registration records to determine whether the canvassing board abused its discretion.

Case Name: Burns v. Tondreau

Citation: 139 So.3d 481

Year: 2014

Case URL: https://www.ravellaw.com/opinions/bd9432cd0df6ba703dae2e1115b266d7

Case Summary: Burns v. Tondreau held that courts have no inherent power to determine election contests and do not have jurisdiction to look into a candidate's qualifications to run for office after the candidate has been elected; the time to challenge a candidate's qualifications is before an election, not after; but section 102.168 authorized post-election challenges involving the eligibility of successful candidates, so the trial court did have subject matter jurisdiction in the case.

Case Name: Henderson v. Johnson

Citation: 97 So.3d 946

Year: 2012

Case URL: https://www.ravellaw.com/opinions/1bb1410e7d77c9a5fd245390d659a855

Case Summary: Henderson v. Johnson held that under 102.168, election contest complaints have to be filed within 10 days after midnight of the date the final board responsible for certifying the results officially certified them. Since the unsuccessful candidate in this case filed his complaint 10 days after the election, his complaint was timely.

Out-of-State Cases

Federal Cases

Case Name: Bush v. Gore

Citation: 531 U.S. 98

Federal District Court: Eastern District of Virginia

Year: 2000

Case URL: https://www.ravellaw.com/opinions/ffe23a532d148e534fb47425579e2894?query=531%20U[...]

Case Summary: Bush v. Gore held that Florida's recount procedures were inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the instance of a statewide recount under the authority of a single state judicial officer.

Regulations & Guidance

Additional Resources

Further Reading

  • Fla. Jur. 2d Elections s 194, Generally

  • Fla. Jur. 2d Elections s 197, Grounds for contesting election

  • Fla. Jur. 2d Limitations and Laches s 108, Amendment as to plaintiff

  • Federal Civil Rights Act s 2:67, Constitutional issues concerning the Voting Rights Act – The voting rights ramifications of Bush v. Gore

  • Fla. Jur. 2d Elections s 89, Generally

  • Fla. Jur. 2d Elections s 179, Generally; canvassing commission and boards

  • Fla. Jur. 2d Elections s 195, Nature of election contest; jurisdiction and venue

  • Fla. Jur. 2d Elections s 196, Parties

  • Fla. Jur. 2d Elections s 196, Parties

  • Fla. Jur. 2d Elections s 198, Complaint; answer

  • Fla. Jur. 2d Elections s 199, Hearing and evidence

  • Validity, Construction and Application of State Statutory Limitations Periods Governing Election Contests, 60 A.L.R.6th 481

  • Construction and Application of Statutes and Ordinances Concerning Establishment of Residency, as Condition for Running for Municipal Office, 74 A.L.R.6th 209