Rulemaking is needed in response to legislative changes to section 101.6952 and 102.166, Florida Statutes, which now require the Department of State to adopt rules for how to determine a voter’s definite choice for ballot measures and judicial merit ...

 

DEPARTMENT OF STATE

Division of Elections

RULE NO.:RULE TITLE:

1S-2.051Federal Write-In Absentee Ballot

PURPOSE AND EFFECT: Rulemaking is needed in response to legislative changes to section 101.6952 and 102.166, Florida Statutes, which now require the Department of State to adopt rules for how to determine a voter’s definite choice for ballot measures and judicial merit retention races using a federal write-in absentee ballot.  Makes clarification regarding when choice cannot be determined in primary and special primary elections. Makes clarification regarding use of consistency of entire ballot.

SUMMARY: Contains procedures for determining a voter’s definite choice for ballot measures and judicial merit retention races using a federal write-in absentee ballot. Adds standard for concluding that voter’s definite choice cannot be determined and vote not counted in primary and special primary elections using a federal write-in absentee ballot. Deletes language requiring review of entire ballot for consistency to make determination of voter’s definite choice.

SUBJECT AREA TO BE ADDRESSED: Elections; federal write-in absentee ballots.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Legislative ratification will not be required pursuant to Section 120.541(3), F.S. Based upon past experiences with rules of this nature, this rule will not have an adverse effect on businesses or private-sector economic growth, job-creation, employment or investment; it is not likely to have an adverse impact on business competitiveness nor innovation in excess of the statutory threshold; nor will it increase regulatory costs in excess of the threshold mandating legislative ratification. No other statute requires legislative ratification for this rule.

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.

RULEMAKING AUTHORITY: 20.10(3), 97.012(1), 101.6952, 102.166 FS.

LAW IMPLEMENTED: 101.5614, 101.6952, 102.166 FS.

IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A HEARING ON THE PROPOSED RULE WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: July 27, 2015, 11:00 a.m.

PLACE: Room 307, R.A. Gray Building, 500 S. Bronough St., Tallahassee, FL 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 3 days before the workshop/meeting by contacting: Brandy Hedges, at [phone] or [e-mail]. 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: Lydia Strom, Assistant General Counsel, at [phone] or [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS BELOW:

 

1S-2.051 Standards for Determining Voter’s Choice on a Federal Write-In Absentee Ballot.

(1) Application. The standards in this rule apply to determine whether the voter has clearly indicated a definite choice for purposes of counting during a recount a vote cast on a Federal Write-in Absentee Ballot (FWAB) during a recount under s. 102.166(4), F.S., and during the canvassing and duplication of the FWAB under s. 101.5614(5), F.S. The FWAB is, issued by the Federal Voting Assistance Program (FVAP) as a back-up ballot, and is available by download from the FVAP’s webpage at: http://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf http://www.fvap.gov/reference/forms.html.

(2) Use. Section 101.6952(2), F.S., governs when a federal write-in absentee ballot may be used in an election and by whom it may be used.

(3) Manual review and tabulation. Subject to Section 102.166(4)(b) and (c), F.S., a vote shall count when it is determined to be a valid vote pursuant to this rule.

(4) Standards. The following standards supplement the applicable standards already set out in Section 101.6952(2)(b)-(e), F.S., for determining whether there is a clear indication that the voter has made a definite choice, whether the vote shall be counted, and for whom or what issue. The canvassing board shall first look at the entire ballot for consistency to make the determination.

(a) Unless the consistency of the ballot clearly indicates otherwise, Tthe following standards apply and will constitute clear indications of a definite choice for which the vote shall count:

1. Except for judicial merit retention races (see subparagraph 6.), iIf the voter writes the candidate’s local or state office under the column “Office/Ballot Initiative,” and in close proximity either on the same line, directly below or above the line, or on the line directly opposite in the next column, the voter writes a qualified candidate’s name or party, the vote shall count for the qualified candidate regardless of party affiliation, or for the qualified candidate associated with the party written, whichever is applicable.

2. Except for judicial merit retention races (see subparagraph 6.), iIf the voter writes the qualified candidate’s first or last name and no other qualified candidate in the race or on the ballot has the same or similar first or last name, the vote shall count for that qualified candidate regardless of proper or improper office designation.

3. If the voter uses symbols, marks, or words, such as “same” or “ditto,” or arrows, or quotation marks to indicate the same political party for all offices voted, the vote shall count for each qualified candidate of that political party, except in those races in which more than one candidate of the same political party may properly be nominated or in which two or more candidates may properly be elected.

4. If the voter fails to include any district or other numbered designation associated with the office but designates the correct office name, the vote shall count for that office.

5. If the voter writes a candidate’s partial or full name, but incorrectly writes the political party, the vote shall count for that candidate.

6. For a judicial merit retention race, if the voter writes the candidate’s first or last name or current office under the column “Office/Ballot Initiative,” or “Candidate Name, Party Affiliation, or Initiative Vote,” and in close proximity either on the same line, directly below or above the line, or on the line directly opposite in the adjacent column, the voter writes “yes” or “no,” the vote shall count as a vote for or against retention, respectively. A voter may use symbols, marks, or words, such as “same” or “ditto,” or arrows, or quotation marks to indicate a yes or no vote, as applicable, for a subsequent judicial merit retention race after indicating a “yes” or “no” vote for a preceding races.

7. For a ballot measure, if the voter writes the name of the ballot measure in any identifiable form under the column “Office/Ballot Initiative,” and in close proximity either on the same line, directly below or above the line, or on the line directly opposite in the next column, the voter writes “yes” or “no,” the vote shall count as a vote for or against the ballot measure, respectively. A voter may use symbols, marks, or words, such as “same” or “ditto,” or arrows, or quotation marks to indicate a yes or no vote, as applicable, for a subsequent ballot measure after indicating a “yes” or “no” vote for a preceding ballot measure.

(b) Unless the consistency of the ballot clearly indicates otherwise, Tthe following standards apply and will constitute instances where clear indications of a definite choice cannot be determined and for which the vote shall not count:

1. If the voter writes a candidate’s first or last name, or both, but incorrectly designates the office for which the candidate has qualified.

2. If the voter writes in a candidate’s name that is not on the official primary ballot of any political party.

3. If the voter designates a qualified candidate’s partial or full name that is the same or similar to an opposing candidate’s partial or full name in the same race without some additional mark or wording to indicate clearly that the voter has made a definite choice. (Such additional marks or wording may consist of a candidate’s nickname, first name and first initial, middle name(s) and middle initial(s), other commonly known name or names, generational suffix, or professional title such as doctor, professor, counselor or judge).

4. If, in a primary election or special primary election, a voter writes in the name or abbreviation of a political party without associating the political party designation with the name of a qualified candidate.

5. In a judicial retention race, if the voter writes an entry other than one specified in subparagraph (4)(a)6., the vote shall not count as either a vote for or against retention.

6. For a ballot measure, if the voter writes an entry other than one specified in subparagraph (4)(a)7., the vote shall not count as either a vote for or against the ballot measure,

(c) Unless the consistency of the ballot or the writing of the candidate’s or political party’s name clearly indicates otherwise (e.g., the voter writes the first and last name of the candidate or the full name of the political party on the ballot), the following standards apply when the abbreviation, initials, or name of a candidate is the same as the abbreviation or name of a political party:

1. If the political party does not have a candidate in the applicable race, the vote shall count for the candidate.

2. If the political party has only one candidate in the applicable race and the candidate is a member of the political party whose abbreviation or name is the same as the candidate, the vote shall count for the candidate.

3. If the political party has more than one candidate on the ballot, the vote shall not count for either the candidate or the party.

(d) If the voter writes in or otherwise indicates more choices than there are positions or choices for that office, it shall be considered an overvote and none of the designations by the voter are valid for that race.

Rulemaking Authority 20.10(3), 97.012, 102.166(4)(b) FS. Law Implemented 101.5614(5)(b), 101.6952, 102.166(4)(c) FS. History‒New 11-28-13. Amended_______.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Lydia Strom, Assistant General Counsel

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kenneth W. Detzner

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 30, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 15, 2016