The purpose of the amendments to the rule is to clarify the standards for how to determine if a voter has clearly indicated his or her choice in a contest on a ballot for purposes of a manual recount or other event requiring such determination. The ...

 

DEPARTMENT OF STATE
Division of Elections

RULE NO: RULE TITLE
1S-2.027: Clear Indication of Voter's Choice on a Ballot
PURPOSE AND EFFECT: The purpose of the amendments to the rule is to clarify the standards for how to determine if a voter has clearly indicated his or her choice in a contest on a ballot for purposes of a manual recount or other event requiring such determination. The amendments to the rule add samples of the votes that will or will not count to facilitate the determination by the county or local canvassing board. The amendments also re-organize the rule and clarify some standards.
SUMMARY: The proposed revisions set forth standards for determining whether a voter has clearly indicated a definite choice by the way he or she marks a contest on a ballot.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 20.10(3), 97.012(1), 102.166 FS.
LAW IMPLEMENTED: 101.5614(5), 102.166(4) FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: Monday, July 7, 2008, 2:00 p.m.
PLACE: Room 307, R. A. Gray Building, Florida Department of State, 500 S. Bronough Street, Tallahassee, Florida 32399
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Nolah Shotwell, Office of the General Counsel, [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Maria Matthews or Sarah Jane Bradshaw, Florida Department of State, 500 S. Bronough Street, Tallahassee, Florida 32301, phone: [phone] or [phone], respectively

THE FULL TEXT OF THE PROPOSED RULE IS:

1S-2.027 Standards for Determining Clear Indication of Voter’s Choice on a Ballot.

(1) Application. The standards in this rule apply The following are standards to determine whether the voter has clearly indicated a definite choice for purposes of counting a vote cast on a ballot in a manual recount as provided specifically by Section 102.166, F.S., on an optical scan ballot, whether there is a clear indication on a ballot that the voter has made a definite choice.

(2) Direct recording electronic voting system.

(a) A vote cast on this voting system is valid for a particular candidate, issue choice, or judicial retention choice when the voter marks the ballot electronically as specified in the ballot instructions.

(b) A vote cast on this voting system is valid for a particular write-in candidate when the voter types on the touch screen the name of a write-in candidate in accordance with the ballot instructions.

(3) Optical scan voting system.

(a) A vote cast on this voting system is valid for a particular candidate, issue choice, or judicial retention choice when the voter marks the ballot as specified in the ballot instructions.

(b) A vote cast on this voting system is valid for a particular write-in candidate when the voter writes in the name of a candidate in the designated write-in space and fills in the oval or arrow next to the write-in candidate’s name.

(4) Manual review and tabulation.

(a) The standards under this subsection apply in all instances where a contest is not marked as specified in the ballot instructions under subsection (2) or (3) and a manual review of the voter’s markings on a ballot is required to determine whether there is a clear indication that the voter has made a definite choice in a contest.

(b) The canvassing board must first look at the entire ballot for consistency. Then the provisions of paragraph (c) apply to determine whether the voter has made a definite choice in a contest, provided the voter has not marked any other contest on the ballot, or if the voter has marked other contests, he or she has marked them in the same manner, subject to the exceptions in subparagraphs 7., 10., and 15. The following are examples of valid votes after review for consistency:

 

BALLOT 1

Ballot Situation 1: Recount in race of State Representative. The two ovals in the first two races are filled in properly, but the voter has circled the candidate’s name in the state representative race. Since the voter did not mark the state representative race in the same manner as in the other races, it cannot be determined whether the voter has clearly indicated a definite choice for Don Nichols.

 

Ballot Situation 2: Recount in race of State Representative. All races on this ballot are marked in the same manner. Since the ballot is consistently marked as in paragraph (c), the vote cast for Michael Ross in the state representative race is a valid vote.

 

 

Ballot Situation 3: Recount in State Representative race. Each race is marked differently so that no consistency in marking exists. It cannot be determined which marking, if any, is clearly indicative of the voter’s choice. Therefore, the vote cast for Bernie West is not valid.

 

 

(c) Subject to the provisions of paragraph (b), tThe following marks constitute a valid vote as indicated for a particular the candidate, issue choice, or judicial retention choice: provided no other race on the ballot is marked or the choices in all other races are marked in the same manner.

1.(a) The voter circles or underlines either tThe oval, or arrow next to a candidate’s name, issue choice, or judicial retention choice is circled or underlined.

 

Valid Vote for BallValid Vote for Ball

 

Valid Vote for BallValid Vote for Ball

 

2.(b) The voter circles or underlines tThe name of a candidate, issue choice, or judicial retention choice is circled or underlined.

 

Valid Vote for ArnazValid Vote for Arnaz

 

3.(c) The voter circles or underlines tThe party abbreviation associated with a candidate’s name is circled or underlined.

 

Valid Vote for BennyValid Vote for Benny

 

4.(d) The voter marks There is an “X,” a check mark, a cross, a plus sign, an asterisk or a star, any portion of which is contained in a single oval or within the blank space between the head and tail of a single arrow and which does not enter into another oval or the space between the head and tail of another arrow.

 

Valid Vote for BallValid Vote for Ball

 

Invalid VoteInvalid Vote

 

5.(e) The voter draws There is a diagonal, horizontal, or vertical line, any portion of which intersects two points on the oval and which does not intersect another oval at any two points. If it is a horizontal line, the line must not strike through the name of the candidate.

 

Valid Vote for BallValid Vote for Ball

 

Invalid VoteInvalid Vote

 

6.(f) The voter draws There is a diagonal or vertical line that intersects an imaginary line extending from the center of the head of a single arrow to the center of the tail of the same arrow, provided the diagonal or vertical line does not intersect the imaginary line joining the head and tail of another arrow.

 

Valid Vote for BallInvalid Vote

 

 

7. The voter marks all the choices for a race but further clarifies a choice for a particular candidate, issue choice or judicial retention choice by placing an additional mark or marks showing support solely for that particular candidate, issue or judicial retention choice.

 

Valid Vote for ArnazValid Vote for Ball

 

Valid Vote to Keep Justice in Office

 

8. The voter strikes through all the choices for candidates, issue, or judicial retention except for one and also leaves the write-in candidate space blank.

 

Valid Vote for Bruce

 

9.(g) The voter writes Written words such as “Vote for [candidate’s name],” “Count this vote” or “Vote no on amendment or referendum,” or “I want this one,” naming a specific candidate, issue choice, or judicial retention choice that expressly direct the canvassing board to cast a vote for that candidate, issue choice, or judicial retention choice such as “Vote for Doe,” or “Please count this vote” for Jameson,” “Vote no on amendment,” provided there are no other markings in the race that would constitute a valid vote for a different candidate, issue choice, or judicial retention choice pursuant to rule.

 

Valid Vote for ArnazInvalid Vote

 

Valid “No” vote

 

10.(2) If The voter fills in the majority of an oval, or the majority of the distance between the head and the tail of an arrow designating a particular candidate, issue choice, or judicial retention choice, or issue choice is filled in, that constitutes a valid vote for the candidate, judicial retention choice, or issue choice, regardless of how other races on the ballot are marked.

 

Valid Vote for ArnazValid Vote for Arnaz

 

(3) Subject to the provisions of (4)(f), the written name of a qualified write-in candidate in the space or the written name of a candidate whose name is on the ballot in that race in the write-in space, whether or not the oval or arrow designating the selection of a write-in candidate has been marked, constitutes a valid vote for the candidate.

(4) Notwithstanding (1), (2) or (3), the following circumstances apply to determining whether there is a clear indication on the ballot that the voter has made a definite choice:

(a) With the exception of (4)(f)1., if a voter marks more candidates than there are positions to be elected for that office in one or more of the manners prescribed in (1), (2), or (3), the marks do not constitute a valid vote for any candidate in that race.

11.(b) If a voter marks fewer candidates than there are positions to be elected for those offices, then the votes for all of those marked candidates shall count. For example, if the voter is allowed to vote for 5 candidates in a special district election (“Vote for 5”) and the voter marks 2 candidates, the votes for those two marked candidates shall count.

 

Valid Votes for Arnaz

and BruceValid Vote for Benny

 

12. The voter draws an arrow from the arrow head to a particular candidate, issue choice or judicial retention choice or draws an arrow head on the tail end of the arrow in lieu of filling in the void between the arrow head and the tail for the particular candidate, issue choice or judicial retention choice.

 

Valid Vote for ArnazValid Vote for Bruce

 

 

13. The voter darkens or bolds the arrow head and the arrow tail but does not fill in the void between the arrow head and the tail.

 

Valid Vote for Ball

 

14. The voter punches the oval or the void between the arrow head and tail.

 

Valid Vote for BallValid Vote for Benny

 

15.(c) Where The voter marks two or more choices similarly in one of the ways indicated in paragraphs 1.- 14. and additionally writes in comments such as “not this,” “ignore this,” “don’t want,” or “wrong,” or “Vote for [candidate’s name]” such that that voter’s definite choice is clearly indicated. one oval or arrow is marked provided in (1), (2) or (3), and one or more other ovals or arrows are similarly marked and contain an “X,” a cross-out, or another mark obscuring the filled in area, or contain words of error or affirmative choice directed to one of the ovals or arrows, such as “no,” “not this,” “ignore this,” “don’t want,” “wrong,” “vote for Smith,” or “Vote yes,” the choice, without the additional markings, or in the absence of additional markings, the choice is indicated by the written words shall constitute a valid vote.

 

Valid Vote for BallValid Vote for Arnaz

 

(d) Any abbreviation, misspelling, or other minor variation in the form of the name of a candidate must be disregarded in determining the validity of a write-in vote.

(5)(e) Write-in Voting.

(a) A voter is determined to have made a definite choice for a write-in vote for the joint office of President/Vice-President if the voter writes in either the last name of the candidate for President or the last name of the candidate for Vice-President. This standard similarly applies to constitute a valid write-in vote for the joint office of Governor/Lieutenant Governor if the voter writes in either the last name of the candidate for Governor or the last name of the candidate for Lieutenant Governor. The write-in of the last name of the candidate for Governor or the write-in of the last name of the candidate for Lieutenant Governor, shall be sufficient to cast a write-in vote for the joint office. The write-in of the last name of the candidate for President or the write-in of the last name of the candidate for Vice President shall be sufficient to cast a write-in vote for the joint office.

 

Valid Vote for joint qualified write-in candidacy of Lenny Bruce and Sally Marr for President and Vice President

 

(b)(f) A voter is determined to have made a definite choice for a named candidate if the If a voter indicates a vote for a named candidate named on the ballot and also provides for a write-in candidate in the same race it shall be treated as follows:

a.1. If a voter indicates a vote for a named candidate named on the ballot and writes-in the name of that same same candidate in the blank space for ‘write-in candidate’ write-in area, the vote shall count for that candidate.

 

Valid Vote for Benny

 

(c) A voter is determined to have made a definite choice for a particular candidate if the voter either writes in the name of a qualified write-in candidate or the name of a candidate who is named on the ballot in that race, (3) Subject to the provisions of (4)(f), the written name of a qualified write-in candidate in the space or the written name of a candidate whose name is on the ballot in that race in the write-in space, whether or not the oval or arrow designating the selection of a write-in candidate has been marked, constitutes a valid vote for the candidate.

 

 

(d) If a voter abbreviates, misspells or varies the form of the name of a candidate in the write-in candidate space, it shall not affect the determination of whether the voter has made a definite choice.

(e)b. If a voter indicates a vote for a named candidate named on the ballot and also writes in a name of a different person in the write-in candidate space. the name of a qualified write-in candidate or the name of a different named candidate on the ballot in that race. iIt shall be considered an overvote and none of the votes are valid for that race with neither candidate receiving credit for the vote.

 

Invalid VoteInvalid Vote

 

3. If a voter indicates a vote for a named candidate on the ballot and writes in the name of a person who is not a qualified write-in candidate and not a named candidate on the ballot in that race, it shall be considered an overvote with no candidate receiving credit for the vote.

(6) Overvotes. If the voter marks more choices than there are positions or choices for that office or issue, it shall be considered an overvote and none of the votes are valid for that race.

 

Invalid VoteInvalid Vote

 

(7) Valid Vote.

(a) A vote shall not count for any particular candidate, issue choice, or judicial retention choice at issue unless determined to be a valid vote pursuant to this rule.

(b)(g) If a voter does not mark a candidate, judicial retention choice, or issue choice in a contest, the valid votes for other candidates or issues on the same ballot shall still be counted.

(5) A mark for a candidate, issue choice, or judicial retention choice at issue in the recount shall not count unless determined to be a valid vote pursuant to this rule.

Specific Authority 20.10(3), 97.021, 102.166(4)(5)(b) FS. Law Implemented 101.5614(5), 102.166(4)(5)(b) FS. History–New 6-6-02, Amended ________.

 

NAME OF PERSONS ORIGINATING PROPOSED RULE: Sarah Jane Bradshaw, Assistant Director for Division of Elections and Maria Matthews, Assistant General Counsel

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Donald Palmer, Division of Elections

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 4, 2008

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: April 25, 2008