Florida > The Florida Election Code > Voting Methods And Procedure

§ 101.68 Canvassing of vote-by-mail ballot.

Overview of Statute

This statute governs how vote-by-mail ballots are canvassed. County canvassing boards can start canvassing vote-by-mail ballots at 7 AM on the 15^th day before the election, but no later than noon the day after the election.

Statute

(1) The supervisor of the county where the absent elector resides shall receive the voted ballot, at which time the supervisor shall compare the signature of the elector on the voter’s certificate with the signature of the elector in the registration books or the precinct register to determine whether the elector is duly registered in the county and may record on the elector’s registration certificate that the elector has voted. An elector who dies after casting a vote-by-mail ballot but on or before election day shall remain listed in the registration books until the results have been certified for the election in which the ballot was cast. The supervisor shall safely keep the ballot unopened in his or her office until the county canvassing board canvasses the vote. Except as provided in subsection (4), after a vote-by-mail ballot is received by the supervisor, the ballot is deemed to have been cast, and changes or additions may not be made to the voter’s certificate.

(2)(a) The county canvassing board may begin the canvassing of vote-by-mail ballots at 7 a.m. on the 15th day before the election, but not later than noon on the day following the election. In addition, for any county using electronic tabulating equipment, the processing of vote-by-mail ballots through such tabulating equipment may begin at 7 a.m. on the 15th day before the election. However, notwithstanding any such authorization to begin canvassing or otherwise processing vote-by-mail ballots early, no result shall be released until after the closing of the polls in that county on election day. Any supervisor of elections, deputy supervisor of elections, canvassing board member, election board member, or election employee who releases the results of a canvassing or processing of vote-by-mail ballots prior to the closing of the polls in that county on election day commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) To ensure that all vote-by-mail ballots to be counted by the canvassing board are accounted for, the canvassing board shall compare the number of ballots in its possession with the number of requests for ballots received to be counted according to the supervisor’s file or list.

(c)

The canvassing board must, if the supervisor has not already done so, compare the signature of the elector on the voter’s certificate or on the vote-by-mail ballot cure affidavit as provided in subsection (4) with the signature of the elector in the registration books or the precinct register to see that the elector is duly registered in the county and to determine the legality of that vote-by-mail ballot. A vote-by-mail ballot may only be counted if:

a. The signature on the voter’s certificate or the cure affidavit matches the elector ’s signature in the registration books or precinct register; however, in the case of a cure affidavit, the supporting identification listed in subsection (4) must also confirm the identity of the elector; or. The cure affidavit contains a signature that does not match the elector’s signature in the registration books or precinct register, but the elector has submitted a current and valid Tier 1 identification pursuant to subsection (4) which confirms the identity of the elector.

b. The cure affidavit contains a signature that does not match the elector’s signature in the registration books or precinct register, but the elector has submitted a current and valid Tier 1 identification pursuant to subsection (4) which confirms the identity of the elector.

For purposes of this subparagraph, any canvassing board finding that an elector’s signatures do not match must be by majority vote and beyond a reasonable doubt.

The ballot of an elector who casts a vote-by-mail ballot shall be counted even if the elector dies on or before election day, as long as, before the death of the voter, the ballot was postmarked by the United States Postal Service, date-stamped with a verifiable tracking number by a common carrier, or already in the possession of the supervisor of elections.

A vote-by-mail ballot is not considered illegal if the signature of the elector does not cross the seal of the mailing envelope.

If any elector or candidate present believes that a vote-by-mail ballot is illegal due to a defect apparent on the voter’s certificate or the cure affidavit, he or she may, at any time before the ballot is removed from the envelope, file with the canvassing board a protest against the canvass of that ballot, specifying the precinct, the ballot, and the reason he or she believes the ballot to be illegal. A challenge based upon a defect in the voter’s certificate or cure affidavit may not be accepted after the ballot has been removed from the mailing envelope.

If the canvassing board determines that a ballot is illegal, a member of the board must, without opening the envelope, mark across the face of the envelope: “rejected as illegal.” The cure affidavit, if applicable, the envelope, and the ballot therein shall be preserved in the manner that official ballots are preserved.

(d) The canvassing board shall record the ballot upon the proper record, unless the ballot has been previously recorded by the supervisor. The mailing envelopes shall be opened and the secrecy envelopes shall be mixed so as to make it impossible to determine which secrecy envelope came out of which signed mailing envelope; however, in any county in which an electronic or electromechanical voting system is used, the ballots may be sorted by ballot styles and the mailing envelopes may be opened and the secrecy envelopes mixed separately for each ballot style. The votes on vote-by-mail ballots shall be included in the total vote of the county.

(3) The supervisor or the chair of the county canvassing board shall, after the board convenes, have custody of the vote-by-mail ballots until a final proclamation is made as to the total vote received by each candidate.

(4)(a) As soon as practicable, the supervisor shall, on behalf of the county canvassing board, attempt to notify an elector who has returned a vote-by-mail ballot that does not include the elector’s signature or contains a signature that does not match the elector’s signature in the registration books or precinct register by:

Notifying the elector of the signature deficiency by e-mail and directing the elector to the cure affidavit and instructions on the supervisor’s website;

Notifying the elector of the signature deficiency by text message and directing the elector to the cure affidavit and instructions on the supervisor’s website; or

Notifying the elector of the signature deficiency by telephone and directing the elector to the cure affidavit and instructions on the supervisor’s website.

In addition to the notification required under subparagraph 1., subparagraph 2., or subparagraph 3., the supervisor must notify the elector of the signature deficiency by first-class mail and direct the elector to the cure affidavit and instructions on the supervisor’s website. Beginning the day before the election, the supervisor is not required to provide notice of the signature deficiency by first-class mail, but shall continue to provide notice as required under subparagraph 1., subparagraph 2., or subparagraph 3.

(b) The supervisor shall allow such an elector to complete and submit an affidavit in order to cure the vote-by-mail ballot until 5 p.m. on the 2nd day after the election.

(c) The elector must complete a cure affidavit in substantially the following form:

VOTE-BY-MAIL BALLOT CURE AFFIDAVIT

I, _____ , am a qualified voter in this election and registered voter of _____ County, Florida. I do solemnly swear or affirm that I requested and returned the vote-by-mail ballot and that I have not and will not vote more than one ballot in this election. I understand that if I commit or attempt any fraud in connection with voting, vote a fraudulent ballot, or vote more than once in an election, I may be convicted of a felony of the third degree and fined up to $5,000 and imprisoned for up to 5 years. I understand that my failure to sign this affidavit means that my vote-by-mail ballot will be invalidated.

(Voter’s Signature)

(Address)

(d) Instructions must accompany the cure affidavit in substantially the following form:

READ THESE INSTRUCTIONS CAREFULLY BEFORE COMPLETING THE AFFIDAVIT. FAILURE TO FOLLOW THESE INSTRUCTIONS MAY CAUSE YOUR BALLOT NOT TO COUNT.

In order to ensure that your vote-by-mail ballot will be counted, your affidavit should be completed and returned as soon as possible so that it can reach the supervisor of elections of the county in which your precinct is located no later than 5 p.m. on the 2nd day after the election.

You must sign your name on the line above (Voter’s Signature).

You must make a copy of one of the following forms of identification:

a. Tier 1 identification.—Current and valid identification that includes your name and photograph: Florida driver license; Florida identification card issued by the Department of Highway Safety and Motor Vehicles; United States passport; debit or credit card; military identification; student identification; retirement center identification; neighborhood association identification; public assistance identification; veteran health identification card issued by the United States Department of Veterans Affairs; a Florida license to carry a concealed weapon or firearm; or an employee identification card issued by any branch, department, agency, or entity of the Federal Government, the state, a county, or a municipality; or

b. Tier 2 identification.—ONLY IF YOU DO NOT HAVE A TIER 1 FORM OF IDENTIFICATION, identification that shows your name and current residence address: current utility bill, bank statement, government check, paycheck, or government document (excluding voter information card).

Place the envelope bearing the affidavit into a mailing envelope addressed to the supervisor. Insert a copy of your identification in the mailing envelope. Mail (if time permits), deliver, or have delivered the completed affidavit along with the copy of your identification to your county supervisor of elections. Be sure there is sufficient postage if mailed and that the supervisor’s address is correct. Remember, your information MUST reach your county supervisor of elections no later than 5 p.m. on the 2nd day after the election, or your ballot will not count.

Alternatively, you may fax or e-mail your completed affidavit and a copy of your identification to the supervisor of elections. If e-mailing, please provide these documents as attachments.

(e) The department and each supervisor shall include the affidavit and instructions on their respective websites. The supervisor must include his or her office’s mailing address, e-mail address, and fax number on the page containing the affidavit instructions, and the department’s instruction page must include the office mailing addresses, e-mail addresses, and fax numbers of all supervisors of elections or provide a conspicuous link to such addresses.

(f) The supervisor shall attach each affidavit received to the appropriate vote-by-mail ballot mailing envelope.

(g) If a vote-by-mail ballot is validated following the submission of a cure affidavit, the supervisor shall make a copy of the affidavit, affix it to a voter registration application, and immediately process it as a valid request for a signature update pursuant to s. 98.077.

(h) After all election results on the ballot have been certified, the supervisor shall, on behalf of the county canvassing board, notify each elector whose ballot has been rejected as illegal and provide the specific reason the ballot was rejected. In addition, unless processed as a signature update pursuant to paragraph (g), the supervisor shall mail a voter registration application to the elector to be completed indicating the elector’s current signature if the signature on the voter’s certificate or cure affidavit did not match the elector’s signature in the registration books or precinct register.

History:

s. 5, ch. 26870, 1951; s. 37, ch. 28156, 1953; s. 36, ch. 65-380; s. 6, ch. 69-280; s. 3, ch. 75-174; s. 23, ch. 77-175; s. 41, ch. 79-400; s. 3, ch. 86-33; s. 591, ch. 95-147; s. 7, ch. 96-57; s. 20, ch. 98-129; s. 56, ch. 2001-40; s. 17, ch. 2002-17; s. 3, ch. 2004-232; s. 47, ch. 2005-277; s. 31, ch. 2007-30; s. 40, ch. 2011-40; s. 15, ch. 2013-57; s. 24, ch. 2016-37; s. 3, ch. 2016-167; s. 1, ch 2017-45; s. 19, ch. 2019-162, eff. July 1, 2019.

Annotation: February 18, 2016 8:59 pm

The signature of a voter on the absentee ballot envelope must match the signature on file with the supervisor of elections. Any update to a voter’s signature for use in verifying absentee ballots must be made before the beginning of the canvass of absentee ballots by the canvassing board. (see 98.077(4), F.S. Once the supervisor or canvassing board has rejected an absentee ballot because of a signature mismatch, it cannot be cured. However, an absentee ballot without a signature at all can be cured up until 5 p.m. on the day of the election. (see 101.68(4), F.S.)

1. Definition for Department

Definition [Department]

The Department of State. Fla. Stat. § 97.021(7).

2. Definition for Supervisor

Definition [Supervisor]

The supervisor of elections. Fla. Stat. § 97.021(36).

3. Definition for Voting System

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).

4. Definition for Absent Elector

Definition [Absent Elector]

Any registered and qualified voter who casts an absentee ballot. Fla. Stat. § 97.021(1).

5. Definition for Election Board

Definition [Election Board]

The clerk and inspectors appointed to conduct an election. Fla. Stat. § 97.021(13).

6. Definition for Secrecy Envelope

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. Fla. Stat. § 101.5603(6).

7. Definition for Public Assistance

Definition [Public Assistance]

Assistance provided through the food assistance program under the federal Supplemental Nutrition Assistance Program; the Medicaid program; the Special Supplemental Food Program for Women, Infants, and Children; and the Temporary Cash Assistance Program. Fla. Stat. § 97.021(31).

8. Definition for Issue

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).

9. Definition for Ballot

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).

10. Definition for Elector

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).

11. Definition for Election

Definition [Election]

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

12. Definition for Candidate

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: 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: Jacobs v. Seminole County Canvassing Board

Citation: 773 So.2d 519

Year: 2000

Case URL: https://www.ravellaw.com/opinions/bbc22e7b8203ca912b53e2b149e446f0?query=773%20S[...]

Case Summary: Jacobs initially filed a complaint contesting the certification of election results in the 2000 presidential election. The Circuit Court denied all relief and Jacobs appealed. The appellate court certified the question to the Florida Supreme Court. The Florida Supreme Court then held that the conduct of the county supervisor of elections was not illegal disparate treatment and that the information provided on application for absentee ballots was enough to establish the qualifications of each applicant. Therefore, the supervisor's conduct did not amount to fraud, gross negligence, or intentional wrongdoing.

Case Name: Anderson v. Canvassing and Election Board of Gadsden County, Fla.

Citation: 399 So.2d 1021

Year: 1981

Case URL: https://www.ravellaw.com/opinions/9224762ac2ec1d9e53fb28cb3517b2e4

Case Summary: A candidate for nomination for county supervisor of elections filed an election contest alleging that the county canvassing board should not have rejected absentee ballots that would have impacted the result of the election. The Circuit Court affirmed the rejection. When the candidate appealed, the appellate court held that the canvassing board could compare signatures on absentee ballots with those in the registration records and that the outer envelopes of the absentee ballots were not the same as the affidavits voters have to sign after being challenged at their polling places.

Case Name: Howanitz v. Blair

Citation: 394 So.2d 479