Senate Bill 0822c1

CODING: Words stricken are deletions; words underlined are additions.


    Florida Senate - 1999                            CS for SB 822

    By the Committee on Ethics and Elections; and Senator Carlton





    313-1770-99

  1                      A bill to be entitled

  2         An act relating to conducting elections and

  3         ascertaining the results; amending s. 102.166,

  4         F.S., relating to protests of election returns;

  5         revising provisions with respect to the

  6         timeframes for filing election protests and

  7         requests for manual recounts; eliminating

  8         protests of election returns in circuit court;

  9         amending s. 102.167, F.S.; deleting the

10         provision that prescribes the form of the

11         protest of election returns to a circuit judge,

12         to conform; amending s. 102.168, F.S., relating

13         to election contests; revising the timeframe

14         for filing a contest of election; specifying

15         the grounds authorized for contesting an

16         election; specifying conditions under which a

17         statement of the grounds of contest may not be

18         rejected or dismissed for want of form;

19         providing for service of the complaint upon the

20         defendant and any other person named therein

21         and providing a timeframe for filing an answer

22         or response thereto; specifying that the

23         contestant is entitled to an immediate hearing;

24         authorizing the circuit judge to fashion any

25         orders necessary to investigate, examine, or

26         check each allegation, prevent or correct any

27         wrong, and provide any relief appropriate under

28         the circumstances; creating s. 102.171, F.S.;

29         codifying that jurisdiction to hear a contest

30         of the election of a member to either house of

31         the Legislature is vested in the applicable

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1         house in accordance with its rules; providing

  2         applicability to certain primary elections;

  3         amending s. 102.012, F.S., relating to election

  4         boards; amending s. 102.031, F.S.; requiring a

  5         deputy sheriff at each polling place; providing

  6         an effective date.

  7

  8  Be It Enacted by the Legislature of the State of Florida:

  9

10         Section 1.  Section 102.166, Florida Statutes, is

11  amended to read:

12         102.166  Protest of election returns; procedure;

13  venue.--

14         (1)  Any candidate for nomination or election, or any

15  elector qualified to vote in the election related to such

16  candidacy, shall have the right to protest the returns of the

17  election as being erroneous by filing with the appropriate

18  canvassing board a sworn, written protest.

19         (2)  Such protest shall be filed with the canvassing

20  board prior to the time the canvassing board certifies the

21  results for the office being protested adjourns or within 5

22  days after midnight of the date the election is held,

23  whichever last occurs later.

24         (3)  Before canvassing the returns of the election, the

25  canvassing board shall:

26         (a)  When paper ballots are used, examine the

27  tabulation of the paper ballots cast.

28         (b)  When voting machines are used, examine the

29  counters on the machines of nonprinter machines or the

30  printer-pac on printer machines. If there is a discrepancy

31  between the returns and the counters of the machines or the

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1  printer-pac, the counters of such machines or the printer-pac

  2  shall be presumed correct.

  3         (c)  When electronic or electromechanical equipment is

  4  used, the canvassing board shall examine precinct records and

  5  election returns. If there is a clerical error, such error

  6  shall be corrected by the county canvassing board. If there is

  7  a discrepancy which could affect the outcome of an election,

  8  the canvassing board may recount the ballots on the automatic

  9  tabulating equipment.

10         (4)(a)  Any candidate whose name appeared on the

11  ballot, any political committee that supports or opposes an

12  issue which appeared on the ballot, or any political party

13  whose candidates' names appeared on the ballot may file a

14  written request with the county canvassing board for a manual

15  recount. The written request shall contain a statement of the

16  reason the manual recount is being requested.

17         (b)  Such request must be filed with the canvassing

18  board prior to the time the canvassing board certifies the

19  results for the office being protested adjourns or within 72

20  hours after midnight of the date the election was held,

21  whichever occurs later.

22         (c)  The county canvassing board may authorize a manual

23  recount. If a manual recount is authorized, the county

24  canvassing board shall make a reasonable effort to notify each

25  candidate whose race is being recounted of the time and place

26  of such recount.

27         (d)  The manual recount must include at least three

28  precincts and at least 1 percent of the total votes cast for

29  such candidate or issue. In the event there are less than

30  three precincts involved in the election, all precincts shall

31  be counted. The person who requested the recount shall choose

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1  three precincts to be recounted, and, if other precincts are

  2  recounted, the county canvassing board shall select the

  3  additional precincts.

  4         (5)  If the manual recount indicates an error in the

  5  vote tabulation which could affect the outcome of the

  6  election, the county canvassing board shall:

  7         (a)  Correct the error and recount the remaining

  8  precincts with the vote tabulation system;

  9         (b)  Request the Department of State to verify the

10  tabulation software; or

11         (c)  Manually recount all ballots.

12         (6)  Any manual recount shall be open to the public.

13         (7)  Procedures for a manual recount are as follows:

14         (a)  The county canvassing board shall appoint as many

15  counting teams of at least two electors as is necessary to

16  manually recount the ballots. A counting team must have, when

17  possible, members of at least two political parties. A

18  candidate involved in the race shall not be a member of the

19  counting team.

20         (b)  If a counting team is unable to determine a

21  voter's intent in casting a ballot, the ballot shall be

22  presented to the county canvassing board for it to determine

23  the voter's intent.

24         (8)  If the county canvassing board determines the need

25  to verify the tabulation software, the county canvassing board

26  shall request in writing that the Department of State verify

27  the software.

28         (9)  When the Department of State verifies such

29  software, the department shall:

30

31

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1         (a)  Compare the software used to tabulate the votes

  2  with the software filed with the Department of State pursuant

  3  to s. 101.5607; and

  4         (b)  Check the election parameters.

  5         (10)  The Department of State shall respond to the

  6  county canvassing board within 3 working days.

  7         (11)  Any candidate for nomination or election, or any

  8  elector qualified to vote in the election related to such

  9  candidacy, shall have the right to protest the returns of the

10  election or the practices attendant thereto as being

11  fraudulent by presenting to any circuit judge of the circuit

12  wherein such fraud is alleged to have occurred a sworn,

13  written protest. If it is alleged that fraudulent returns or

14  practices exist in more than one county, venue for such

15  protest shall be in any such county wherein such fraud is

16  alleged to have occurred.

17         (a)  The protest shall be presented to a circuit judge

18  prior to the time the canvassing board adjourns or within 5

19  days after midnight of the date the election occurs, whichever

20  last occurs.

21         (b)  The circuit judge to whom the protest is presented

22  shall have authority to fashion such orders as he or she may

23  deem necessary to ensure that such allegation is investigated,

24  examined, or checked; to prevent or correct such fraud; or to

25  provide any relief appropriate under such circumstances. Any

26  candidate or elector presenting such a protest to a circuit

27  judge shall be entitled to an immediate hearing thereon or to

28  any appropriate relief.

29         Section 2.  Section 102.167, Florida Statutes, is

30  amended to read:

31         102.167  Form of protest of election returns.--

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1         (1)  The form of the "Protest of Election Returns to

  2  Canvassing Board" shall be as follows:

  3

  4                  PROTEST OF ELECTION RETURNS TO

  5                         CANVASSING BOARD

  6

  7                                                   ...., Florida

  8                                                    ...., 19....

  9         As provided in Section 102.166(1), Florida Statutes, I,

10  .... of .... County, Florida, believe the election returns

11  from Precinct No. .... in the .... election 19.... are

12  erroneous.

13         I hereby protest the canvass of such returns by the

14  .... Canvassing Board, and request that said returns be

15  investigated, examined, checked, and corrected by said

16  Canvassing Board.  The basis for this protest is .............

17  ..............................................................

18  ..............................................................

19  ..............................................................

20  ..............................................................

21  ..............................................................

22

23  Under penalties of perjury, I swear (or affirm) that I have

24  read the foregoing and that the facts alleged are true, to the

25  best of my knowledge and belief.

26

27         ...(Signature of person protesting election returns)...

28

29         (2)  The form of the "Protest of Election Returns to

30  Circuit Judge" shall be as follows:

31

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1                  PROTEST OF ELECTION RETURNS TO

  2                          CIRCUIT JUDGE

  3

  4                                                   ...., Florida

  5                                                    ...., 19....

  6         As provided in Section 102.166(2), Florida Statutes, I,

  7  .... of .... Florida, being a qualified elector in Precinct

  8  No. .... of .... County, Florida, believe the election returns

  9  from Precinct No. .... in the .... election of .... 19.... are

10  fraudulent.

11         I hereby protest against the canvass of such returns by

12  the .... Canvassing Board, and request that said returns be

13  investigated, examined, checked, and corrected.  The basis for

14  this protest is ..............................................

15  ..............................................................

16  ..............................................................

17  ..............................................................

18  ..............................................................

19

20  Under penalties of perjury, I swear (or affirm) that I have

21  read the foregoing and that the facts alleged are true, to the

22  best of my knowledge and belief.

23

24         ...(Signature of person protesting election returns)...

25         Section 3.  Section 102.168, Florida Statutes, is

26  amended to read:

27         102.168  Contest of election.--

28         (1)  Except as provided in s. 102.171, the

29  certification of election or nomination of any person to

30  office, or of the result on any question submitted by

31  referendum, may be contested in the circuit court by any

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1  unsuccessful candidate for such office or nomination thereto

  2  or any elector qualified to vote in the election related to

  3  such candidacy, or by any taxpayer, respectively.

  4         (2)  Such contestant shall file a complaint, together

  5  with the fees prescribed in chapter 28, with the clerk of the

  6  circuit court within 10 days after midnight of the date the

  7  last county canvassing board empowered to canvass the returns

  8  certifies the results of the election being contested or

  9  within 5 days after midnight of the date the last county

10  canvassing board empowered to canvass the returns certifies

11  the results of that particular election following a protest

12  pursuant to s. 102.166(1), whichever occurs later. adjourns,

13  and

14         (3)  The complaint shall set forth the grounds on which

15  the contestant intends to establish his or her right to such

16  office or set aside the result of the election on a submitted

17  referendum. The grounds for contesting an election under this

18  section are:

19         (a)  Misconduct, fraud, or corruption on the part of

20  any election official or any member of the canvassing board

21  sufficient to change or place in doubt the result of the

22  election.

23         (b)  Ineligibility of the successful candidate for the

24  nomination or office in dispute at the time of the election.

25         (c)  Receipt of a number of illegal votes or rejection

26  of a number of legal votes sufficient to change or place in

27  doubt the result of the election.

28         (d)  Proof that any elector, election official, or

29  canvassing board member was given or offered a bribe or reward

30  in money, property, or any other thing of value for the

31  purpose of procuring the successful candidate's nomination or

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1  election or determining the result on any question submitted

  2  by referendum.

  3         (e)  Any other cause or allegation which, if sustained,

  4  would show that a person other than the successful candidate

  5  was the person duly nominated or elected to the office in

  6  question or that the outcome of the election on a question

  7  submitted by referendum was contrary to the result declared by

  8  the canvassing board or election board.

  9         (4)  The canvassing board or election board shall be

10  the proper party defendant, and the successful candidate shall

11  be an indispensable party to any action brought to contest the

12  election or nomination of a candidate.

13         (5)  A statement of the grounds of contest may not be

14  rejected, nor the proceedings dismissed, by the court for any

15  want of form if the grounds of contest provided in the

16  statement are sufficient to clearly inform the defendant of

17  the particular proceeding or cause for which the nomination or

18  election is contested.

19         (6)  A copy of the complaint shall be served upon the

20  defendant and any other person named therein in the same

21  manner as in other civil cases under the laws of this state.

22  Within 10 days after the complaint has been served, the

23  defendant must file an answer admitting or denying the

24  allegations on which the contestant relies or stating that the

25  defendant has no knowledge or information concerning the

26  allegations, which shall be deemed a denial of the

27  allegations, and must state any other defenses, in law or

28  fact, on which the defendant relies. If an answer is not filed

29  within the time prescribed, the defendant may not be granted a

30  hearing in court to assert any claim or objection that is

31  required by this subsection to be stated in an answer.

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1         (7)  Any candidate, qualified elector, or taxpayer

  2  presenting such a contest to a circuit judge is entitled to an

  3  immediate hearing. However, the court in its discretion may

  4  limit the time to be consumed in taking testimony, with a view

  5  therein to the circumstances of the matter and to the

  6  proximity of any succeeding primary or other election.

  7         (8)  The circuit judge to whom the contest is presented

  8  may fashion such orders as he or she deems necessary to ensure

  9  that each allegation in the complaint is investigated,

10  examined, or checked, to prevent or correct any alleged wrong,

11  and to provide any relief appropriate under such

12  circumstances.

13         Section 4.  Section 102.171, Florida Statutes, is

14  created to read:

15         102.171  Contest of election to Legislature.--The

16  jurisdiction to hear any contest of the election of a member

17  to either house of the Legislature is vested in the applicable

18  house. Therefore, the certification of election of any person

19  to the office of member of either house of the Legislature may

20  only be contested in the applicable house by an unsuccessful

21  candidate in accordance with the rules of that house.

22         Section 5.  Subsection (1) of section 102.012, Florida

23  Statutes, 1998 Supplement, is amended to read:

24         102.012  Inspectors and clerks to conduct elections.--

25         (1)  The supervisor of elections of each county, at

26  least 20 days prior to the holding of any election, shall

27  appoint two election boards for each precinct in the county;

28  however, the supervisor of elections may, in any election,

29  appoint one election board if the supervisor has reason to

30  believe that only one is necessary. Each election board shall

31  be composed of three inspectors and a clerk. The clerk shall

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1  be in charge of, and responsible for, seeing that the election

  2  board carries out its duties and responsibilities. Each

  3  inspector and each clerk shall take and subscribe to an oath

  4  or affirmation, which shall be written or printed, to the

  5  effect that he or she will perform the duties of inspector or

  6  clerk of election, respectively, according to law and will

  7  endeavor to prevent all fraud, deceit, or abuse in conducting

  8  the election. The oath may be taken before an officer

  9  authorized to administer oaths or before any of the persons

10  who are to act as inspectors, one of them to swear the others,

11  and one of the others sworn thus, in turn, to administer the

12  oath to the one who has not been sworn.  The oaths shall be

13  returned with the poll list and the returns of the election to

14  the supervisor. In all questions that may arise before the

15  members of an election board, the decision of a majority of

16  them shall decide the question.  The supervisor of elections

17  of each county shall be responsible for the attendance and

18  diligent performance of his or her duties by each clerk and

19  inspector.

20         Section 6.  Subsection (2) of section 102.031, Florida

21  Statutes, is amended to read:

22         102.031  Maintenance of good order at polls;

23  authorities; persons allowed in polling rooms; unlawful

24  solicitation of voters.--

25         (2)  The sheriff shall deputize a deputy sheriff for

26  each polling place precinct who shall be present during the

27  time the polls are open and until the election is completed,

28  who shall be subject to all lawful commands of the clerk or

29  inspectors, and who shall maintain good order.  The deputy may

30  summon assistance from among bystanders to aid him or her when

31  necessary to maintain peace and order at the polls.

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1999                            CS for SB 822
    313-1770-99




  1         Section 7.  This act shall take effect July 1, 1999.

  2

  3          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  4                              SB 822

  5

  6  The committee substitute includes electors entitled to vote in
    an election in the list of persons allowed to file an election
  7  contest in circuit court. The committee substitute eliminates
    the language in the bill which provided a differentiation
  8  between contests of open and closed primaries and provides
    that jurisdiction to hear a contest of the election of a
  9  member of the Legislature is vested in the applicable house.
    Finally, the committee substitute eliminates the specific
10  number of persons making up the election board and provides
    that a deputy sheriff must be present at each polling place,
11  rather than each precinct, during the voting hours.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  12