Senate Bill 2252
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Florida Senate - 1998 SB 2252
By Senator Dyer
14-1096-98
1 A bill to be entitled
2 An act relating to elections; amending s.
3 101.5614, F.S.; prohibiting election officials
4 from physically altering or remarking an
5 original ballot; amending s. 101.591, F.S.;
6 requiring the Department of State to audit the
7 voting system in any county in which a recount
8 or election contest has changed the result of
9 an election; amending s. 101.62, F.S.;
10 providing for the release of information
11 relating to absentee ballots to a candidate who
12 has filed an election contest or request for
13 recount; amending s. 102.112, F.S.; requiring
14 the canvassing board and the supervisor of
15 elections if not a member of the board to
16 certify that returns have been tabulated on a
17 certified voting system; amending s. 102.141,
18 F.S.; providing for the appointment of a
19 substitute member of the county canvassing
20 board; requiring a complete manual recount of
21 votes in certain circumstances; providing
22 procedures; amending s. 102.168, F.S.;
23 providing procedures for contesting an
24 election; amending s. 104.30, F.S.; providing a
25 penalty for tampering with a certified voting
26 system without prior approval of the Department
27 of State; creating s. 102.1661, F.S.; providing
28 for discretionary recount of ballots; repealing
29 s. 102.166, F.S., relating to protest of
30 election returns; repealing s. 102.167, F.S.,
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1 relating to form for protesting election
2 returns; providing an effective date.
3
4 Be It Enacted by the Legislature of the State of Florida:
5
6 Section 1. Subsection (5) of section 101.5614, Florida
7 Statutes, is amended to read:
8 101.5614 Canvass of returns.--
9 (5) If any ballot card of the type for which the
10 offices and measures are not printed directly on the card is
11 damaged or defective so that it cannot properly be counted by
12 the automatic tabulating equipment, a true duplicate copy
13 shall be made of the damaged ballot card in the presence of
14 witnesses and substituted for the damaged ballot. Likewise, a
15 duplicate ballot card shall be made of a defective ballot
16 which shall not include the invalid votes. All duplicate
17 ballot cards shall be clearly labeled "duplicate," bear a
18 serial number which shall be recorded on the damaged or
19 defective ballot card, and be counted in lieu of the damaged
20 or defective ballot. If any ballot card of the type for which
21 offices and measures are printed directly on the card is
22 damaged or defective so that it cannot properly be counted by
23 the automatic tabulating equipment, a true duplicate copy may
24 be made of the damaged ballot card in the presence of
25 witnesses and in the manner set forth above, or the valid
26 votes on the damaged ballot card may be manually counted at
27 the counting center by the canvassing board, whichever
28 procedure is best suited to the system used. However, the
29 voter's original ballot may not be physically altered or
30 remarked by election officials. If any paper ballot is damaged
31 or defective so that it cannot be counted properly by the
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1 automatic tabulating equipment, the ballot shall be counted
2 manually at the counting center by the canvassing board. The
3 totals for all such ballots or ballot cards counted manually
4 shall be added to the totals for the several precincts or
5 election districts. No vote shall be declared invalid or void
6 if there is a clear indication of the intent of the voter as
7 determined by the canvassing board. After duplicating a
8 ballot, the defective ballot shall be placed in an envelope
9 provided for that purpose, and the duplicate ballot shall be
10 tallied with the other ballots for that precinct.
11 Section 2. Section 101.591, Florida Statutes, is
12 amended to read:
13 101.591 Voting system audit.--
14 (1) The Legislature, upon specific appropriation and
15 directive, may provide for an independent audit of the voting
16 system in any county. Within 30 days after completing the
17 audit, the person conducting the audit shall furnish a copy of
18 the audit to the supervisor of elections and the board of
19 county commissioners.
20 (2) The Department of State shall audit the voting
21 system in any county in which a recount or election contest
22 has changed the result of an election. The Department of State
23 shall commence the audit within 30 days after the recount or
24 final judgment; and, within 30 days after completing the
25 audit, the department shall furnish a copy of the audit to the
26 supervisor of elections and the board of county commissioners.
27 (3)(2) An audit conducted pursuant to this section
28 subsection (1) shall consist of a study and evaluation of the
29 voting system used during any primary, general, municipal, or
30 presidential preference primary election to provide reasonable
31 assurance that the system is properly controlled, can
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1 accurately count votes, provides adequate safeguards against
2 unauthorized manipulation and fraud, and complies with the
3 requirements of law and rules of the Department of State.
4 Section 3. Subsection (3) of section 101.62, Florida
5 Statutes, is amended to read:
6 101.62 Request for absentee ballots.--
7 (3) For each request for an absentee ballot received,
8 the supervisor shall record the date the request was made, the
9 date the absentee ballot was delivered or mailed, the date the
10 ballot was received by the supervisor, and such other
11 information he or she may deem necessary. This information
12 shall be confidential and exempt from the provisions of s.
13 119.07(1) and shall be made available to or reproduced only
14 for a canvassing board, an election official, a political
15 party or official thereof, a candidate who has filed
16 qualification papers and is opposed in an upcoming election or
17 who has filed an election contest or request for recount, and
18 registered political committees or registered committees of
19 continuous existence, for political purposes only.
20 Section 4. Section 102.112, Florida Statutes, is
21 amended to read:
22 102.112 Deadline for submission of county returns to
23 the Department of State; penalties.--
24 (1) The county canvassing board or a majority thereof
25 shall file the county returns for the election of a federal or
26 state officer with the Department of State immediately after
27 certification of the election results. The canvassing board
28 and the supervisor, if not a member of the board, shall also
29 certify that the returns have been tabulated or accumulated on
30 a certified voting system that has not been improved or
31 modified since its last certification. If the returns are not
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1 received by the department by 5 p.m. on the 7th day after an
2 election, such returns may be ignored and the results on file
3 at that time may be certified by the department.
4 (2) The department shall fine each board member $200
5 for each day such returns are late, the fine to be paid only
6 from the board member's personal funds. Such fines shall be
7 deposited into the Election Campaign Financing Trust Fund,
8 created by s. 106.32.
9 (3) Members of the county canvassing board may appeal
10 such fines to the Florida Elections Commission, which shall
11 adopt rules for such appeals.
12 Section 5. Section 102.141, Florida Statutes, is
13 amended to read:
14 102.141 County canvassing board; duties.--
15 (1) The county canvassing board shall be composed of
16 the supervisor of elections; a county court judge, who shall
17 act as chair; and the chair of the board of county
18 commissioners. In the event any member of the county
19 canvassing board is unable to serve, is a candidate who has
20 opposition in the election being canvassed, or is an active
21 participant in the campaign or candidacy of any candidate who
22 has opposition in the election being canvassed, such member
23 shall be replaced as follows:
24 (a) If no county court judge is able to serve or if
25 all are disqualified, the chief judge of the judicial circuit
26 in which the county is located shall appoint as a substitute
27 member a qualified elector of the county who is not a
28 candidate with opposition in the election being canvassed and
29 who is not an active participant in the campaign or candidacy
30 of any candidate with opposition in the election being
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1 canvassed. In such event, the members of the county
2 canvassing board shall meet and elect a chair.
3 (b) If the supervisor of elections is unable to serve
4 or is disqualified, the chief judge of the judicial circuit in
5 which the county is located chair of the board of county
6 commissioners shall appoint as a substitute member a qualified
7 elector member of the board of county commissioners who is not
8 a candidate with opposition in the election being canvassed
9 and who is not an active participant in the campaign or
10 candidacy of any candidate with opposition in the election
11 being canvassed. The supervisor, however, shall act in an
12 advisory capacity to the canvassing board.
13 (c) If the chair of the board of county commissioners
14 is unable to serve or is disqualified, the board of county
15 commissioners shall appoint as a substitute member one of its
16 members who is not a candidate with opposition in the election
17 being canvassed and who is not an active participant in the
18 campaign or candidacy of any candidate with opposition in the
19 election being canvassed.
20 (d) If a substitute member cannot be appointed as
21 provided elsewhere in this subsection, the chief judge of the
22 judicial circuit in which the county is located shall appoint
23 as a substitute member a qualified elector of the county who
24 is not a candidate with opposition in the election being
25 canvassed and who is not an active participant in the campaign
26 or candidacy of any candidate with opposition in the election
27 being canvassed.
28 (2) The county canvassing board shall meet in a
29 building accessible to the public in the county where the
30 election occurred at a time and place to be designated by the
31 supervisor of elections to publicly canvass the absentee
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1 electors' ballots as provided for in s. 101.68. Public notice
2 of the time and place at which the county canvassing board
3 shall meet to canvass the absentee electors' ballots shall be
4 given at least 48 hours prior thereto by publication once in
5 one or more newspapers of general circulation in the county
6 or, if there is no newspaper of general circulation in the
7 county, by posting such notice in at least four conspicuous
8 places in the county. As soon as the absentee electors'
9 ballots are canvassed, the board shall proceed to publicly
10 canvass the vote given each candidate, nominee, constitutional
11 amendment, or other measure submitted to the electorate of the
12 county, as shown by the returns then on file in the office of
13 the supervisor of elections and the office of the county court
14 judge.
15 (3) The canvass, except the canvass of absentee
16 electors' returns, shall be made from the returns and
17 certificates of the inspectors as signed and filed by them
18 with the county court judge and supervisor, respectively, and
19 the county canvassing board shall not change the number of
20 votes cast for a candidate, nominee, constitutional amendment,
21 or other measure submitted to the electorate of the county,
22 respectively, in any polling place, as shown by the returns.
23 All returns shall be made to the board on or before noon of
24 the day following any primary, general, special, or other
25 election. If the returns from any precinct are missing, if
26 there are any omissions on the returns from any precinct, or
27 if there is an obvious error on any such returns, the
28 canvassing board shall order a recount of the returns from
29 such precinct. Before canvassing such returns, the canvassing
30 board shall examine the counters on the machines or the
31 tabulation of the ballots cast in such precinct and determine
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1 whether the returns correctly reflect the votes cast. If
2 there is a discrepancy between the returns and the counters of
3 the machines or the tabulation of the ballots cast, the
4 canvassing board shall resolve the discrepancy and recount the
5 ballots, if necessary the counters of such machines or the
6 tabulation of the ballots cast shall be presumed correct and
7 such votes shall be canvassed accordingly.
8 (4) If the returns for any office reflect that a
9 candidate was defeated or eliminated by one-half of a percent
10 or less of the votes cast for such office, that a candidate
11 for retention to a judicial office was retained or not
12 retained by one-half of a percent or less of the votes cast on
13 the question of retention, or that a measure appearing on the
14 ballot was approved or rejected by one-half of a percent or
15 less of the votes cast on such measure, the board responsible
16 for certifying the results of the vote on such race or measure
17 shall order a recount of the votes cast with respect to such
18 office or measure. A recount need not be ordered with respect
19 to the returns for any office, however, if the candidate or
20 candidates defeated or eliminated from contention for such
21 office by one-half of a percent or less of the votes cast for
22 such office request in writing that a recount not be made.
23 Each canvassing board responsible for conducting a recount
24 shall examine the counters on the machines or the tabulation
25 of the ballots cast in each precinct in which the office or
26 issue appeared on the ballot and determine whether the returns
27 correctly reflect the votes cast. If there is a discrepancy
28 between the returns and the counters of the machines or the
29 tabulation of the ballots cast, the canvassing board shall
30 resolve the discrepancy and recount the ballots, if necessary
31 the counters of such machines or the tabulation of the ballots
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1 cast shall be presumed correct and such votes shall be
2 canvassed accordingly.
3 (5)(a) If the returns tabulated on electronic
4 tabulating equipment for any office show that a candidate was
5 defeated or eliminated by 0.1 percent or less of the votes
6 cast for such office, that a candidate for retention to a
7 judicial office was retained or not retained by 0.1 percent or
8 less of the votes cast on the question of retention, or that a
9 measure appearing on the ballot was approved or rejected by
10 0.1 percent or less of the votes cast on such measure, the
11 board responsible for certifying the results of the vote on
12 such race or measure shall order a complete manual recount of
13 the votes cast with respect to such office or measure. A
14 recount need not be ordered with respect to the returns for
15 any office, however, if the candidate or candidates defeated
16 or eliminated from contention for such office by 0.1 percent
17 or less of the votes cast for such office request in writing
18 that a recount not be made.
19 (b) Procedures for any manual recount are as follows:
20 1. The county canvassing board shall appoint as many
21 counting teams of at least two electors as is necessary to
22 manually recount the ballots. A counting team must have, when
23 possible, members of at least two political parties. A
24 candidate involved in the race may not be a member of the
25 counting team.
26 2. If a counting team is unable to determine a voter's
27 intent in casting a ballot, the ballot must be presented to
28 the county canvassing board for it to determine the voter's
29 intent.
30 3. Any manual recount must be open to the public.
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1 (6)(a) Any candidate whose name appeared on the
2 ballot, any political committee that supports or opposes an
3 issue that appeared on the ballot, or any political party
4 whose candidates' names appeared on the ballot may file a
5 written request with the county canvassing board for a manual
6 recount. The written request must contain a statement of the
7 reason the manual recount is being requested and must be filed
8 with the chair of the canvassing board within 24 hours after
9 the time the election was certified or within 72 hours after
10 midnight of the date the election was held, whichever occurs
11 later.
12 (b) The county canvassing board may authorize a manual
13 recount. If a manual recount is authorized, the county
14 canvassing board must make a reasonable effort to notify each
15 candidate whose race is being recounted of the time and place
16 of such recount.
17 (c) The manual recount must include at least three
18 precincts and at least 1 percent of the total votes cast for
19 such candidate or issue. If there are fewer than three
20 precincts involved in the election, all precincts must be
21 counted. The person who requested the recount shall choose
22 three precincts to be recounted, and, if other precincts are
23 recounted, the county canvassing board must select the
24 additional precincts.
25 (d) Any manual recount must be conducted in accordance
26 with paragraph (5)(b).
27 (e) If the manual recount indicates an error in the
28 vote tabulation which could affect the outcome of the
29 election, the county canvassing board must:
30 1. Correct the error and recount the remaining
31 precincts with the vote tabulation system;
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1 2. Request the Department of State to verify the
2 tabulation software; or
3 3. Manually recount all ballots.
4 (7) Before certifying or recounting the returns of the
5 election, the canvassing board shall:
6 (a) When paper ballots are used, examine the
7 tabulation of the paper ballots cast.
8 (b) When voting machines are used, examine the
9 counters on the machines of nonprinter machines or the
10 printer-pac on printer machines. If there is a discrepancy
11 between the returns and the counters of the machines or the
12 printer-pac, the canvassing board must resolve the
13 discrepancy.
14 (c) When electronic or electromechanical equipment is
15 used, the canvassing board must examine precinct records and
16 election returns. If there is a clerical error, such error
17 must be corrected by the county canvassing board. If there is
18 a discrepancy that could affect the outcome of an election,
19 the canvassing board must resolve the discrepancy and recount
20 the ballots using the automatic tabulating equipment if
21 necessary.
22 (8) If the county canvassing board determines the need
23 to verify the tabulation software, the county canvassing board
24 must request in writing that the Department of State verify
25 the software.
26 (9) The Department of State in verifying such software
27 shall:
28 (a) Compare the software used to tabulate the votes
29 with the software filed with the Department of State under s.
30 101.5607; and
31 (b) Check the election parameters.
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1 (10) The Department of State shall respond to the
2 county canvassing board within 3 working days.
3 (11)(5) The canvassing board may employ such clerical
4 help to assist with the work of the board as it deems
5 necessary, with at least one member of the board present at
6 all times, until the canvass of the returns is completed. The
7 clerical help shall be paid from the same fund as inspectors
8 and other necessary election officials.
9 (12)(6) At the same time that the results of an
10 election are certified to the Department of State, the county
11 canvassing board shall file a report with the Division of
12 Elections on the conduct of the election. The report shall
13 contain information relating to any problems incurred as a
14 result of equipment malfunctions either at the precinct level
15 or at a counting location, an explanation of any modifications
16 or improvements to the certified voting system which have not
17 been approved by the Department of State, any difficulties or
18 unusual circumstances encountered by an election board or the
19 canvassing board, and any other additional information which
20 the canvassing board feels should be made a part of the
21 official election record. Such reports shall be maintained on
22 file in the Division of Elections and shall be available for
23 public inspection. The division shall utilize the reports
24 submitted by the canvassing boards to determine what problems
25 may be likely to occur in other elections and disseminate such
26 information, along with possible solutions, to the supervisors
27 of elections.
28 Section 6. Section 102.168, Florida Statutes, is
29 amended to read:
30 102.168 Contest of election.--
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1 (1) The certification of election or nomination of any
2 person to office, or of the result on any question submitted
3 by referendum, may be contested in the circuit court by any
4 unsuccessful candidate for such office or nomination thereto,
5 or by any elector qualified to vote in the election taxpayer,
6 respectively. Such contestant shall file a complaint, together
7 with the fees prescribed in chapter 28, with the clerk of the
8 circuit court within 10 days after midnight of the date the
9 last county canvassing board empowered to canvass the returns
10 certifies the result of that election to the Secretary of
11 State adjourns, and the complaint shall set forth the grounds
12 on which the contestant intends to establish his or her right
13 to such office or set aside the result of the election on a
14 submitted referendum. The canvassing board or election board
15 shall be the proper party defendant, and the successful
16 candidate shall be an indispensable party to any action
17 brought to contest the election or nomination of a candidate.
18 (2) The complaint must allege violations of federal,
19 state, or local election laws which have resulted in a
20 certified return that does not fairly reflect the true vote,
21 or allege such gross errors or irregularities in the conduct
22 of the election or the ascertainment of the result that the
23 true vote was not reflected in the return.
24 (3) The circuit court to whom the contest is presented
25 may fashion orders it determines necessary to ensure that the
26 allegations of the complaint are investigated, examined, or
27 checked and to provide any relief appropriate under the
28 circumstances, including ordering partial or full machine or
29 manual recounts, the inclusion or exclusion of certain ballots
30 or classes of ballots, the holding of new elections in all or
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1 portions of the voting districts involved, or the ouster of
2 the officeholder and his or her replacement by the contestant.
3 Section 7. Section 104.30, Florida Statutes, is
4 amended to read:
5 104.30 Voting machine; unlawful possession;
6 tampering.--
7 (1) Any unauthorized person who unlawfully has
8 possession of any voting machine or key thereof is guilty of a
9 misdemeanor of the first degree, punishable as provided in s.
10 775.082 or s. 775.083.
11 (2) Any person who tampers or attempts to tamper with
12 or destroy any voting machine with the intention of
13 interfering with the election process or the results thereof
14 is guilty of a felony of the third degree, punishable as
15 provided in s. 775.082, s. 775.083, or s. 775.084.
16 (3) Any person who tampers, modifies, or improves a
17 certified voting system without prior written approval from
18 the Department of State is guilty of a misdemeanor of the
19 first degree, punishable as provided in s. 775.082 or s.
20 775.083.
21 Section 8. Section 102.1661, Florida Statutes, is
22 created to read:
23 102.1661 Discretionary recount.--Any candidate whose
24 name appeared on the ballot, any political committee that
25 supports or opposes an issue that appeared on the ballot, or
26 any political party whose candidates' names appeared on the
27 ballot may file a written request with the county canvassing
28 board for a discretionary manual or machine recount. The
29 written request must contain a statement of the reason the
30 recount is being requested and must be filed with the chair of
31 the canvassing board within 24 hours after the time the
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1 election was certified or within 72 hours after midnight of
2 the date the election was held, whichever occurs later. If the
3 board exercises its discretion to order a manual recount, the
4 recount must be conducted in accordance with s.102.141(5)(b).
5 Section 9. Sections 102.166 and 102.167, Florida
6 Statutes, are repealed.
7 Section 10. This act shall take effect upon becoming a
8 law.
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11 SENATE SUMMARY
12 Amends various sections of The Florida Election Code.
Prohibits election officials from physically altering or
13 remarking an original ballot. Requires the Department of
State to audit the voting system in any county in which a
14 recount or election contest has changed the result of an
election. Provides for the release of information
15 relating to absentee ballots to a candidate who has filed
an election contest or request for recount. Requires the
16 canvassing board and the supervisor of elections if not a
member of the board to certify that returns have been
17 tabulated on a certified voting system. Provides for the
appointment of a substitute member of the county
18 canvassing board. Requires a complete manual recount of
votes in certain circumstances and provides procedures.
19 Provides procedures for contesting an election. Provides
a penalty for tampering with a certified voting system
20 without prior approval of the Department of State.
Provides for discretionary recount of ballots. Repeals s.
21 102.166, F.S., relating to protest of election returns.
Repeals s. 102.167, F.S., relating to form for protesting
22 election returns.
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