U.S. Commission on Civil Rights

Voting Irregularities in Florida During the 2000 Presidential Election

Chapter 7

Casting a Ballot

The right to vote freely for the candidate of one's choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.[1]

PROVING ONE SHOULD BE PERMITTED TO VOTE

In the 2000 presidential election, many Floridians arrived at their polling places expecting to cast ballots for the candidates of their choice, but left frustrated after being denied this right. This chapter focuses on the mechanisms provided by Florida election law that are intended to safeguard the right to vote. In Florida, affidavits are used to cure problems arising at the polling place, while absentee ballots are used when the voter cannot physically be at the polling place on Election Day. At the time of the 2000 election, Florida law did not allow provisional balloting.[2] A provisional ballot allows a person to cast a ballot, but the ballot is not counted until the eligibility of the voter is determined.[3]

Affidavits

When there is doubt that a person who seeks to vote is registered, yet that person is willing to swear that he or she did in fact register to vote, the Florida Election Code authorizes voting by affidavit in certain circumstances. Although affidavits seem able to remedy many situations, they are of no use when poll workers are unable to reach supervisors of elections, a complaint heard frequently at the Commission hearings.[4] In those cases, the individuals were denied the right to vote. The Florida Election Code provides for affidavit voting in the following circumstances:

• Discrepancy between Signatures. Under Florida law, individuals identify themselves as duly qualified electors by signing an identification slip. The election clerk compares this signature with the signature in the precinct registration book. If the official is satisfied that the signature is the same, the person is then permitted to vote. If the election official has doubts that the signature is actually that of the person attempting to vote, the person may be still permitted to vote if he or she executes an affidavit.[5]

• Change of Address. An elector who moves from one precinct to another precinct within the county in which the elector is registered may be permitted to vote in the precinct that is the legal residence at the time of voting, provided the elector completes an affidavit providing information as to where he or she is legally registered to vote.[6] 

• Change of Name. An elector whose name changes because of marriage or another legal process may be permitted to vote if he or she completes an affidavit providing the name under which the elector is legally registered to vote.[7] 

• Assistance by Reason of Disability. An elector who requires assistance because of blindness, disability, or inability to read or write is entitled to vote if the elector executes an affidavit attesting to this need for assistance.[8] 

• Challenged Ballots. An affidavit is used to allow an individual to vote when another elector, or an observer, challenges the right of the person to vote. The challenger is required to swear that the reasons given for the challenge are true. The challenged elector then executes an affidavit stating that he or she is authorized to vote. If the voter executes the affidavit, the election officials will decide by a majority vote whether the challenged person may vote.[9]

• Elector s Name Does Not Appear on the List. When an elector's name does not appear in the registration books of the election precinct where the elector is registered, and when the elector cannot present a valid registration identification card, the elector may have his or her name restored, if the supervisor of elections for the county where the polling place is located authorizes the vote.[10] 

Florida permits affidavits to be used to remedy many situations where a potential voter could be denied the right to vote. Florida Election Code section 101.111 conceivably solves many problems that would disenfranchise voters. This provision permits an individual to be issued a ballot even if the person s name does not appear on the precinct register and the voter cannot present a valid registration identification card. Nevertheless, this person can only be restored to the registration lists and be permitted to vote if the supervisor is otherwise satisfied that the voter is validly registered, that the voter s name has been erroneously omitted from the books, and that the voter is entitled to have his or her name restored. . . . [11]

Under these statutory provisions tremendous discretion is vested in the supervisor of elections. If the supervisor is not satisfied with the individual's voting eligibility then the person's right to vote is denied. Equally important, the law vests the supervisor, no one else, with power to deny or permit an individual to vote. If the supervisor cannot be contacted, the right to vote is denied. As discussed more fully in chapter 2, one of the biggest problems during the November 2000 election was the great difficulty contacting supervisors of elections.

Some election officials in Florida may have unduly restricted the use of affidavit voting when faced with mounting confusion over confirming the eligibility status of voters on Election Day. For example, if the name of an eligible voter did not appear on the voter registration list at a polling place due to governmental inefficiency or error, that person was not allowed to cast a ballot that could be counted even if it was later confirmed that that person was eligible to vote. The officials, however, maintain this is done because once a ballot is cast as authorized by affidavit ballot, it is indistinguishable from the ballots of individuals on the registration list. They emphasize that if it is discovered that the information in the affidavit is false, the fraudulent vote cannot be annulled. Anyone submitting a false affidavit regarding his or her ability to vote is subject to criminal prosecution; yet, there is no remedy for the eligible voter who was wrongly denied an opportunity to vote due to the government's inefficiency or error.[12] The lack of sufficient training of poll workers also contributed to the problem of confirming the eligibility status of registered voters whose names did not appear on lists at certain polling places.

Provisional Ballots

One way to help protect the rights of registered voters is the provisional ballot. In May 2001, Governor Bush signed into law a provision that permits the use of provisional ballots in some circumstances.[13] A provisional ballot is issued to a voter at a polling place if there is a question about the voter's eligibility. Provisional ballots allow those eligible to vote to do so and at the same time protect the integrity of the elections by not counting the provisional ballots of those persons who are not eligible to vote. If the election official issues a provisional ballot, the voter's ballot is usually sealed in a special provisional voter's envelope that the voter signs under penalty of perjury. The voter states his or her eligibility to vote, and the inspector notes the reasons for issuing the provisional ballot on the envelope. Provisional ballots are not opened until voting officials research the registration information and the eligibility of the voter is determined. This research occurs during the official vote count, during the days immediately following the election. Eligible ballots are added during the vote count period.

Ion Sancho, Leon County supervisor of elections, testified to the advantages of a provisional ballot:

Well, let me give you the experience in Hillsborough County, [where] . . . I visited. It's a wonderful county who added 40 [telephone] lines. There are going to be times when I don't care if you add 40 lines . . . it's not enough. Which is one of the reasons why in our legislative meeting in Tampa on December 12, the supervisor of the legislative committee has made a recommendation . . . that we will present to the legislature this spring. So let's go to [a] provisional ballot because we recognize that under certain elections, I don't care if you add 50 lines, . . . you're not going to be able to deal with all you need to. And the other aspect of that is, do you have 50 trained individuals who know intimately all of the intricacies of the Florida election law that would be able to answer the person s problem?[14]

The use of provisional balloting is not a new or unique practice. The following are a few examples of states using provisional ballots and when they can be used.

• California. At all elections, a voter claiming to be properly registered is entitled to vote by provisional ballot. A provisional ballot is sealed in a special envelope and deposited in the ballot box. The color of the envelope is different from that of absentee ballots. These provisional ballots are not counted until the registration information is researched by the registrar s office and the voter is determined to be eligible to vote. Provisional ballots are also authorized for absentee voters who vote at the polls but are unable to surrender their unvoted absentee voter ballots.[15]

• New Jersey. Any voter who prior to an election moves within the same county but has no confirmation of that move may still vote in the district to which he or she has moved by use of a provisional vote.[16] After voting by provisional ballot and completing the affirmation statement, the voter places the provisional ballot in an envelope. The voter then hands the envelope to a member of the district board, who places the envelope in the provisional ballot bag to be opened and counted at a later time if it is established that the person is entitled to vote.[17]

• Kansas. When a registered voter changes name by marriage, divorce, or another legal proceeding and is otherwise qualified to vote at the polling place that voter is allowed to vote by a provisional ballot. When a registrant moves from an address on the registration book to another address within the county and has not reregistered, that individual is allowed to vote by provisional ballot.[18] If a person's right to vote is challenged, the person is permitted to vote by provisional ballot, which is opened and reviewed by the county board of canvassers, which determines whether to accept the vote.[19]

• West Virginia. A voter whose registration record lists one address but who has since moved to another address in a different precinct in the same county is permitted to update the registration at the polling place in the new precinct. He or she is permitted to vote by provisional ballot at the new polling place. If the voter's registration is found on the registration records within the county during the canvass and no other challenge of eligibility was entered on Election Day, the ballot is counted.[20]

The Governor s Select Task Force on Election Procedures, Standards and Technology endorsed the concept of provisional ballots as a way of encouraging votes by those whose registration status could not be clarified quickly at the polls, but also urged the Division of Elections to look carefully at various alternatives. [21]

Absentee Ballots

Although there was little testimony at the Commission hearings regarding the use absentee ballots, an overview of Florida's voting systems cannot overlook the statutory provisions regarding absentee ballots. The rules that applied to absentee ballots in Florida's 2000 presidential election were a combination of federal, state, and local laws. The Florida Election Reform Act of 2001 changed several provisions regarding absentee ballots.[22] The discussion that follows is based on Florida law at the time of the 2000 presidential election.

Requests for Absentee Ballots

Florida law provides that an elector may request an absentee ballot in person or in writing.[23] One request is deemed sufficient to receive an absentee ballot for all elections held within a calendar year and the request may be considered canceled when any first-class mail sent by the supervisor of elections to the elector is returned as undeliverable.[24] The supervisor may also accept a written or telephonic request for an absentee ballot from the elector, or, if directly instructed by the elector, a member of the elector's immediate family or the elector's legal guardian.[25]

The person making the request must disclose: (1) the name of the elector for whom the vote is requested; (2) the elector's address; (3) the last four digits of the elector's social security number; (4) the registration number on the elector s registration identification card; (5) the requester's name; (6) the requester s address; (7) the requester's social security number and, if available, driver s license number; (8) the requester's relationship to the elector; and (9) the requester's signature.[26]

Florida law allows voting by absentee ballot for any registered and qualified voter who

• is unable without another's assistance to attend the polls;

• is an inspector, a poll worker, a deputy voting machine custodian, a deputy sheriff, a supervisor of elections, or a deputy supervisor who is assigned to a different precinct than that in which he or she is registered to vote;

• on account of the tenets of his or her religion, cannot attend the polls on the day of the general, special, or primary election;

• may not be in the precinct of his or her residence during the hours the polls are open for voting on the day of the election;

• has changed his or her residency to another county in this state within the time period during which the registration books are closed for the election for which the ballot is requested; or

• has changed his or her residency to another state and is ineligible under the laws of that state to vote in the general election; however, only for presidential ballots.[27]

Florida also provides for absentee voting for any registered and qualified voter residing overseas, specifically

• members of the Armed Forces while in the active service who are permanent residents of the state and are temporarily residing outside the territorial limits of the United States and the District of Columbia;

• members of the Merchant Marine of the United States who are permanent residents of the state and are temporarily residing outside the territorial limits of the United States and the District of Columbia; and

• other citizens of the United States who are permanent residents of the state and are temporarily residing outside the territorial limits of the United States and the District of Columbia.[28]

Florida law requires absentee ballots for overseas electors to be sent 45 days prior to the general election[29] and be received by the supervisor of elections by 7 p.m. on the day of the election.[30]

Conversely, Florida has an administrative provision[31] that allows overseas ballots to be counted up to 10 days after the general election if they are postmarked and dated by Election Day and they have a foreign postmark.[32] This administrative rule was promulgated as the result of a 1980 complaint in which the United States attorney general sued the state of Florida to enforce the provisions of the Overseas Citizens Voting Rights Act[33] and the Federal Voting Assistance Act.[34] The complaint alleged that because of Florida's late scheduling of primary elections in 1980 and the delayed mailing of absentee ballots, overseas voters would be deprived of their right to vote.[35] Florida subsequently reached an agreement with the United States and entered into a consent decree in which it agreed, among other things, to accept overseas absentee ballots received up to 5 p.m. 10 days after Election Day and inform overseas absentee voters of the 10-day extension.[36] The parts of the consent decree regarding absentee ballots are now provisions in the Florida Administrative Code.[37]

In the aftermath of the 2000 presidential election, the conflict between the Florida statute and the administrative rule became the subject of litigation. A lawsuit was filed seeking to exclude the 2,411 overseas ballots received up to 10 days after the election that were included by the Florida Elections Canvassing Commission in the final election results.[38] The district court and the 11th Circuit allowed the administrative rule to trump the statutory provision.[39] Consequently, ballots of overseas voters can now be counted if received within 10 days of the election.

CONCLUSION

There was consistent, uncontroverted testimony regarding the persistent and pervasive inability of poll workers to reach the offices of the county supervisors of elections to verify voter eligibility during the 2000 presidential election.[40] In situations when a potential voter's name does not appear on the precinct registration books, and when he or she cannot present a valid registration card, voting is permitted only if the supervisor is otherwise satisfied that the elector is validly registered, that the elector's name has been erroneously omitted from the books, and the elector is entitled to have his or her name restored. [41] If as occurred in Florida the supervisor of elections cannot be contacted, then voter eligibility cannot be verified and corrected on Election Day. While in many states this problem can be addressed through the use of provisional ballots, the use of such ballots was not available under Florida law on November 7, 2000, and this led to numerous Floridians being denied their right to vote.