The purpose of the proposed rule is to implement the requirements of Chapter law 2011-162, Laws of Florida, which expanded the use of federal write-in absentee ballots (which is a back-up ballot to the state absentee ballot) beyond federal elections ...

 

DEPARTMENT OF STATE
Division of Elections

RULE NO.:RULE TITLE:

1S-2.051Federal Write-In Absentee Ballot

PURPOSE AND EFFECT: The purpose of the proposed rule is to implement the requirements of Chapter law 2011-162, Laws of Florida, which expanded the use of federal write-in absentee ballots (which is a back-up ballot to the state absentee ballot) beyond federal elections to include a state or local election involving two or more candidates. The new law took effect July 1, 2011. The new law requires the Department of State to supplement standards set out already in law by providing additional criteria for determining when there is a clear indication that a voter has made definite choice on a federal write-in absentee ballot for which the vote shall be counted in the race when there is a manual recount.

SUMMARY: Provides procedures for determining voter intent on a federal write-in absentee ballot in the event of a recount.

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., because the rule applies only to election-related activities. 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; 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), 102.166(4) FS.

LAW IMPLEMENTED: 101.6952, 101.5614, 102.166 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: September 11, 2013, 9:00 a.m.

PLACE: Room 307, R.A. Gray Building, 500 S. Bronough Street, 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 2 days before the workshop/meeting by contacting: Stacey Small at [e-mail] or [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: Ashley E. Davis at [e-mail] or [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

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, Standard Form 186 (Rev. 08-2013), incorporated by reference, http://election.dos.state.fl.us/pdf/FWABwithOMBFinal.pdf, and available from the Division of Elections, R. A. Gray Building, Room 316, 500 South Bronough Street, Tallahassee, Florida 32399-0250, by contact at [phone], or by download from the Division’s webpage at: http://election.dos.state.fl.us/forms/index.shtml.

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

(3) Manual review and tabulation. Subject to Section 102.166(4)(b) and (c), F.S., a vote shall not count for any particular candidate, unless 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 when there is a clear indication that the voter has made a definite choice in a particular race and when the valid vote shall be counted:

(a) For state and local office election races, the voter must write in the non-federal designated part of the ballot. If the voter writes under the column “Office/Ballot Initiative,” the title of the applicable state or local candidate’s office and under the column marked “Candidate Name, Party Affiliation, or Initiative Vote,” the candidate’s name or party affiliation, the voter has made a definite choice. If the voter designates the candidate name or party in the box that is directly opposite of the office designated by the voter, the voter shall be counted. Otherwise, the vote shall not be counted.

(b) When no other candidate in the race has the same or a similar name, the last name of a candidate shall be sufficient for determining a definite choice.

(c) If the voter uses marks, symbols, or language, such as arrows, quotation marks, or the word “same” or “ditto,” to indicate the same political party for all offices voted, the mark, symbol or language shall constitute a clear indication of a definite choice and the vote shall count.

(d) Failure to properly list the district or other numbered designation associated with the state or local office candidate’s name does not invalidate an otherwise valid vote.

(e) If the abbreviation or last name of a candidate is the same as the abbreviation or name of a political party to which the candidate does not belong, regardless of whether that party has another candidate in the race, if the office and the candidate’s first and last names are designated correctly, the vote shall count for that candidate, not the political party. However, if no information is indicated on the ballot besides the office, and the candidate’s last name that is the same as the political party’s name or abbreviation, the vote shall not be counted for either the candidate or the political party.

(f) If the voter writes in a vote for a candidate’s first or last name, but does not name the office, or incorrectly designates the office for which the candidate has qualified, no definite choice can be determined and the vote shall not be counted.

(g) If the voter writes in both a qualified candidate’s name and an incorrect political party for that candidate, no definite choice can be determined and the vote shall not be counted, regardless of whether there is an opposing candidate in the race.

(h) The designation of a candidate’s first or last name when an opposing candidate has the same or similar name in the same office contest shall not constitute a clear indication of a definite choice, unless the voter has made additional marks demonstrating a clear indication of a definite choice. Such additional marks may be a nickname, another commonly known name by which the candidate is called, a generational suffix, or title associated with the candidate (e.g., doctor, professor, counselor, judge, etc.) In a general election, if the voter has also marked the candidate’s party affiliation, this shall constitute a voter’s definite choice and the vote shall be counted.

(i) If the voter writes in a candidate’s name that is not on the official primary ballot of any political party, the vote cast shall not count.

(j) The canvassing board may consider the entire ballot page for consistency in determining whether a voter has made a definite choice in a contest.

(5) Overvotes. Except as otherwise provided herein, 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 101.6952, 102.166(4)(c) FS. History–New ___________.             

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Ashley E. Davis

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 19, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: March 18, 2013