Topics
Code Section
florida > The Florida Election Code > Nonpartisan Elections

§ 105.051 Determination of election or retention to office.

Overview of Statute

This statute governs how circuits and counties determine who wins an election or retains one’s office. In unopposed races for circuit judge, county court judge, or school boards, the names of the candidates do not appear on the ballot. Rather, it is assumed that the candidate votes for him/herself.

If at least two candidates qualify for an office, their names are all on the primary ballot. If one of the candidates wins a majority of the votes in the primary, his/her name will not appear on another ballot, unless there is a write-in candidate, since unopposed candidates are assumed to have voted for themselves at the general election. If no candidate wins a majority in the primary, the names of the two candidates with the highest number of votes are both on the general election ballot. If more than two candidates receive the same number of votes, and that number is the highest, all of their names are on the general election ballot as well. If there is a primary where the first place candidate did not win a majority and where there is a tie for second place, all three candidates are on the general election ballot.

The candidate who wins the most votes in the general election wins the seat. If there is a tie at the close of the general election, the outcome is determined by lot.

In retention races, the retention question is on the ballot at the general election. If a majority of voters vote for the judge to be retained, he or she starts a new 6 year term that begins the first Tuesday after the first Monday in the January following the general election. If less than a majority votes to retain the judge, there will be a vacancy in the office after the current term expires.

Statute

(1) ELECTION.In circuits and counties holding elections:

(a) The name of an unopposed candidate for the office of circuit judge, county court judge, or member of a school board shall not appear on any ballot, and such candidate shall be deemed to have voted for himself or herself at the general election.
(b) If two or more candidates, neither of whom is a write-in candidate, qualify for such an office, the names of those candidates shall be placed on the ballot at the primary election. If any candidate for such office receives a majority of the votes cast for such office in the primary election, the name of the candidate who receives such majority shall not appear on any other ballot unless a write-in candidate has qualified for such office. An unopposed candidate shall be deemed to have voted for himself or herself at the general election. If no candidate for such office receives a majority of the votes cast for such office in the primary election, the names of the two candidates receiving the highest number of votes for such office shall be placed on the general election ballot. If more than two candidates receive an equal and highest number of votes, the name of each candidate receiving an equal and highest number of votes shall be placed on the general election ballot. In any contest in which there is a tie for second place and the candidate placing first did not receive a majority of the votes cast for such office, the name of the candidate placing first and the name of each candidate tying for second shall be placed on the general election ballot.
(c) The candidate who receives the highest number of votes cast for the office in the general election shall be elected to such office. If the vote at the general election results in a tie, the outcome shall be determined by lot.
(2) RETENTION.With respect to any justice or judge who qualifies to run for retention in office, the question prescribed in s. 105.041(2) shall be placed on the ballot at the general election. If a majority of the qualified electors voting on such question within the territorial jurisdiction of the court vote for retention, the justice or judge shall be retained for a term of 6 years commencing on the first Tuesday after the first Monday in January following the general election. If less than a majority of the qualified electors voting on such question within the territorial jurisdiction of the court vote for retention, a vacancy shall exist in such office upon the expiration of the term being served by the justice or judge.

History:

s. 5, ch. 71-49; s. 38, ch. 77-175; s. 19, ch. 81-105; s. 632, ch. 95-147; s. 5, ch. 99-326; s. 4, ch. 99-355; s. 23, ch. 2005-286.

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.

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.

Definition [Unopposed Candidate]

A candidate for nomination or election to an office who, after the last day on which a person, including a write-in candidate, may qualify, is without opposition in the election at which the office is to be filled or who is without such opposition after such date as a result of a primary election or of withdrawal by other candidates seeking the same office. A candidate is not an unopposed candidate if there is a vacancy to be filled under s. 100.111(3), if there is a legal proceeding pending regarding the right to a ballot position for the office sought by the candidate, or if the candidate is seeking retention as a justice or judge.

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.

Definition [Elector]

“Elector” is synonymous with the word “voter” or “qualified elector or voter,” except where the word is used to describe presidential electors.

Definition [Election]

Any primary election, special primary election, special election, general election, or presidential preference primary election.

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.

Cases

florida Cases

Case Name: In re Advisory Opinion to Governor re Judicial Vacancy Due to Resignation

Citation: 42 So.3d 795

Year: 2010

Case URL: https://www.ravellaw.com/opinions/8c26e5b05ab88e3665c945c1dcd61f3f

Case Summary: In re Advisory Opinion to Governor re Judicial Vacancy Due to Resignation held that this particular vacancy should be filled by a gubernatorial appointment in an effort to avoid an extended vacancy in the Escambia County Courts and to allow the voters to exercise their own choice in the 2012 general election.

Case Name: Levey v. Dijols

Citation: 990 So.2d 688

Year: 2008

Case URL: https://www.ravellaw.com/opinions/ab40d488b69f90af2d9a7797373b6052

Case Summary: Levey v. Dijols held that although a second place finisher in a primary used her maiden name instead of her married name in her qualifying oath and in the election, her name should have appeared on the ballot in the general election because she was one of the two candidates receiving the highest number of votes.

Case Name: In re Advisory Opinion to Governor re: Appointment or Election of Judges

Citation: 824 So.2d 132

Year: 2002

Case URL: https://www.ravellaw.com/opinions/b62a26d19e0ccb45fb5392a0e97a16a9

Case Summary: In re Advisory Opinion to Governor re: Appointment or Election of Judges held that since three candidates qualified during the statutory period for election to the circuit judge position, which at the time was held by the judge who retired, the election method of selection took precedence over the gubernatorial method of selection because the election process had already begun.

Case Name: Pepper v. Cobo

Citation: 785 So.2d 718

Year: 2001

Case URL: https://www.ravellaw.com/opinions/786af39ff4365dc5d00bcd684d67dbb5

Case Summary: Pepper v. Cobo held that after one of the top two vote getters in the primary was deemed ineligible for the school board position at issue, the election was invalid under 105.051, which requires that the top two vote getters in the primary be listed on the ballot for the general election. Since only one of the top two vote getters was listed on the general election ballot, a new election had to be held listing qualified candidates.

Out-of-State Cases

Federal Cases

Case Name: Davis v. Chiles

Citation: 139 F.3d 1414

Federal Circuit Court: 11th Circuit Court

Year: 1998

Case URL: https://www.ravellaw.com/opinions/2ca91e516a0a37ab95966a21acce226e

Case Summary: Davis v. Chiles held that plaintiffs failed to make a prima facie case under the applicable law regarding the system of selecting judges in two at-large judicial election districts, because they failed to propose a permissible remedy.

Additional Resources

Further Reading

  • Fla. Jur. 2d Courts and Judges s 291, Election of judges and justices; terms

  • “When is a Candidate for Public Office in Florida Officially Elected?” 37 Nova L. Rev. 79