Ben Gibson — Senior Fellow, The James Madison Institute
Doug Wheeler — Director, George Gibbs Center for Economic Prosperity, The James Madison Institute
Table of Contents
Introduction
The 2000 presidential election came down to the results in Florida. Then-Vice President Al Gore and then-Governor George W. Bush each needed Florida’s electoral votes to win a majority in the Electoral College and secure the presidency. The election night results showed Bush ahead of Gore by less than 1,800 votes in an election where a total of nearly six million votes had been cast. Over the weeks that followed, a series of legal and political battles occurred, ultimately culminating in the Supreme Court’s ruling in Bush v. Gore, a ruling that continues to be debated today.
The controversies over the 2000 presidential election stemmed in part from several ambiguous and outdated provisions of Florida’s election code. The code allowed the use of antiquated voting systems, contained a vague and underspecified standard for determining the validity of ballots, and provided little guidance concerning ballot design. The use of absentee ballots was heavily restricted, and provisional ballots had not yet been authorized. These and other deficiencies together contributed to one of the closest, mostly hotly contested and heavily scrutinized presidential elections in American history. The 2000 election brought unprecedented national scrutiny to virtually every aspect of the state’s election laws, casting their problems into stark relief.
Over the next two and a half decades, the Florida legislature overhauled its election code and considered yearly tweaks to improve and respond to issues, adopting a variety of fundamental reforms to make the voting process more accessible and reliable; enhance protections against mistakes, irregularity, confusion, and fraud; and bolster public confidence in the process. Some of these reforms were invalidated in misguided rulings by an overly aggressive federal court that approached the issue in largely partisan terms. And a few others eliminated some of the state’s election integrity protections. As a whole, however, these reforms gave Florida one of the most robust, successful electoral systems in the nation and today they have earned the label of “The Gold Standard” when it comes to election administration and election integrity. In contrast to the chaos accompanying Bush v. Gore, Florida was able to accommodate and efficiently conduct three statewide recounts during the 2018 election cycle, as well as a safe, smooth, successful presidential election in 2020 despite the unprecedented challenges presented by COVID-19. Despite this success, Florida did not rest on its laurels but continued to improve its election code by passing election integrity and administration reforms that led to successful elections in 2022 and 2024.
Florida’s election system has substantially expanded public participation compared to the 2000 presidential election, notwithstanding the substantial growth in the state’s population over that time.
| Year | Citizen voting-age population (“CVAP”) | Registered voters | Votes Cast in Presidential Election |
|---|---|---|---|
| 2000 | 11,081,542 | 8,752,717(78.98% of CVAP) | 5,963,110(53.81% of CVAP; 68.13% of registered voters) |
| 2016 | 13,933,052 | 13,505,571(96.93% of CVAP) | 9,613,669(69.00% of CVAP; 71.18% of registered voters) |
| 2020 | 15,507,315 | 15,231,808(98.22% of CVAP) | 11,067,456(71.37% of CVAP; 72.66% of registered voters) |
| 2024 | 18,229,883 (only 2023 data available) | 14,257,135(78.21% of 2023 CVAP) | 10,893,752(59.76% of 2023 CVAP; 76.41% of active registered voters) |
Over those past two decades, Florida’s electoral system has not only been made more accessible but in many respects more secure and easily administrable, as well. Though no system is perfect, Florida’s Election Code may serve as a model for other states as they seek to reform their own election laws. This study reviews the major reforms to the Florida Election Code that the state legislature has adopted in the years since Bush v. Gore and offers a series of best practices concerning election administration and security that states should consider as policy reforms.
Election Systems
Technical Specifications for Voting and Tabulation Equipment
One of the biggest problems in the 2000 election that led to the disputes ultimately culminating in Bush v. Gore was several counties’ use of punch-card ballots. Voters were required to use a stylus or other device to perforate holes in the ballot next to the names of the candidates for whom they wished to vote. In some cases, however, a piece of the ballot – a “chad” – would remain hanging from the ballot, causing automated tabulation machines to fail to recognize the ballot as a valid vote. Bush v. Gore arose in part from the disparate standards that various election officials used in determining the validity of such ballots during their manual reviews of ballots that the tabulation machines had rejected.
In 2001, in the first major reform to the Election Code following the 2000 election, the legislature prohibited the use of punch-card ballots and other voting systems that required voters to “pierc[e] . . . ballots” with a device. Counties were instead required to use “electronic or electromechanical precinct-count tabulation voting systems.” In other words, in-person ballots had to be counted using tabulation machines at the polling places where they were cast. A few years later, the legislature required that all paper ballots used by any voting systems be “marksense ballots,” which voters fill out by darkening preprinted ovals next to the names of their preferred candidates. The voter’s marks were read and tabulated by optical scan machines. This statute also allowed election officials to use electronic devices, rather than printed precinct registers, to record voters’ signatures at polling locations.
In 2007, the legislature appropriated a total of nearly $28 million to purchase voting equipment for various counties. It went on to require that “all voting shall be by marksense ballot utilizing a marking device,” except people with disabilities were permitted to continue using special voter interface devices. Rather than relying solely on pre-printed ballots, the legislature also authorized the use of ballot-on-demand technology in 2007 for early voting locations and absentee ballots and in 2011 for Election Day ballots. Along the way, it also discontinued the use of detachable ballot stubs, which had been used to conduct post-election audits. In 2019, the legislature authorized election officials to permit all voters in their respective jurisdictions to mark their candidate selections on electronic voter interface devices, which then would print out completed marksense ballots containing their selections to be scanned and tabulated by a separate device. The voter interface device may not be used to tabulate votes. Rather, any vote tabulation “must be based upon a subsequent scan of the marked marksense ballot or the voter-verifiable paper output” generated by the voter input device.
In the years after Bush v. Gore, the legislature also repeatedly imposed more rigorous certification requirements for voting systems. Even before the 2000 election, state law had already required counties to purchase and use only voting systems that the Secretary of State had certified. The 2001 amendments expressly authorized the Secretary to certify voting systems that used touchscreens. They also prohibited the Secretary from certifying a voting system’s automatic tabulation equipment unless it was able to detect overvotes and under-votes and give the voter an opportunity to correct the problem. Tabulation equipment also had to be able to calculate results by precinct. The legislature bolstered these requirements a few years later by prohibiting vendors from providing uncertified voting equipment, components, or upgrades to local or county governments.
In 2013, the legislature passed another statute requiring each vendor with an approved voting system to notify the Department of State of any known defects in the system and applicable corrective measures within 30 days of discovery. When a vendor discloses a defect, the Department may suspend the sale, lease, and use of the system within the state until the defect is corrected. If the Department has reasonable cause to believe that an undisclosed defect exists, it may investigate the voting system; if it concludes that an undisclosed defect exists, it may fine the vendor and suspend the sale, lease, and use of the affected system until the problem is resolved.
Testing Requirements
The 2001 overhaul to the Florida Election Code also imposed vigorous new testing requirements for electronic and electromechanical voting systems before counting begins in an election. The legislature required such systems to be “thoroughly tested at the conclusion of maintenance and programming” to confirm that they have been properly programmed; the election is “correctly defined” on the system; and all of the “input, output, and communication devices are working correctly.” Tests must be conducted publicly. A canvassing board may not use a machine in an election that has failed testing unless it is reprogrammed or repaired to fix the problem. All tabulation machines at centralized sites where absentee ballots are counted must be tested. In contrast, a minimum of only five percent of the optical scan tabulation machines sent to precincts, or 10 machines – whichever is greater – must be tested.
Ballot Design
Another major controversy arising from the 2000 presidential election was the use of the “butterfly ballot” in Palm Beach County. Many voters reported being confused about which bubbles corresponded to the candidates of their choice. To prevent voters from being misled or confused by ballots in the future, the 2001 law required the Department of State to prescribe a “uniform” ballot for all elections. For each certified voting system, the department was required to specify the layouts for both the ballot as a whole, as well as each individual race. The Department was also required to develop “[c]lear and unambiguous ballot instructions and directions” to accompany the new design.
For each office on a general election ballot, the candidate of the political party that received the most votes for Governor in the most recent gubernatorial election appears first. The candidate of the party whose candidate received the next highest number of votes appears second. Minor party and independent candidates are then listed in the order in which they qualified for the ballot in the pending election. In primary elections, candidates are arranged alphabetically by last name. If two candidates share the same last name, the ballot must specify which, if any, was the incumbent. In 2003, the legislature added a warning to absentee ballots, cautioning that the absentee elector should mark only as many candidates as they are permitted to vote for. The legislature later specified the order in which offices must be listed on marksense ballots. In 2021, the legislature prohibited the mailing envelope or the secrecy envelope of a vote-by-mail ballot from “bear[ing] any indication of the political affiliation of an absent elector.”
Voter Registration
Statewide Registration Database
Another major problem with Florida’s presidential election in 2000 was that eligible voters had been prevented from voting because election officials had erroneously removed them from the voter registration rolls. The legislature responded the following year by enacting a law requiring the Department of State to create a statewide online voter registration database and website, to be operational by June 1, 2002.
The 2001 law directed county election officials to compare their records to data held by other state agencies to confirm voter eligibility; eliminate duplicate registrations; and identify voters who had died, been declared incompetent, or convicted of disqualifying felonies. The legislature amended these provisions in 2003 to require the database to satisfy the Help American Vote Act’s (“HAVA”) requirements. Two years later, it directed supervisors of elections to maintain a list of valid residential addresses to facilitate comparisons with the Florida Department of Highway Safety and Motor Vehicles (“FLHSMV”) database. More recently, in 2021, the legislature directed FLHSMV to assist the Department of State in “regularly identifying” voters’ changes in residency.
Registration Applications
The post-Bush v. Gore amendments also expanded the ways in which election officials could confirm the identity of people attempting to register to vote. State law had previously required applicants to include the last four digits of their Social Security number (“SSN-4”) on their voter registration forms. In 2003, the legislature amended the law to allow applicants to include their driver’s license number or non-driver identification card numbers, instead. The supervisor must notify the applicant if their form is missing information or their identification number cannot be verified. An application is valid only after the driver’s license number, Florida ID Card number, or last four digits of the social security number can be confirmed against outside records.. If the applicable number can’t be matched prior to the book closing deadline, the applicant may only cast a provisional ballot. The ballot is counted only if election officials can verify the voter’s number by the end of the canvassing period or the applicant provides evidence sufficient to authenticate it by the end of the provisional ballot cure period. The legislature authorized FLHSMV to share images of people’s driver’s licenses and signatures to facilitate voter eligibility determinations. In 2023, the legislature amended state law to require that third-party voter registration organizations (1) submit an affirmation that each person collecting or handling voter registration applications is a U.S. citizen and has not been convicted of specified criminal offenses and (2) provide a receipt to an applicant when accepting possession of his or her voter registration application.
Online Voter Registration
In 2015, the legislature authorized online voter registration through a secure Internet website, to begin on October 1, 2017. The website must allow people to register, provide the information necessary to establish their eligibility and update their registrations. Each applicant must receive a “unique identifier . . . to prevent unauthorized persons from altering a voter’s registration information.” Most people who register online are not required to provide signatures. Rather, the system uses an applicant’s driver license number or non-driver identification number with the FLHSMV database to confirm their name and birthdate. When information in an online voter registration application matches motor vehicle records, the FLHSMV transmits the applicant’s digital signature to the Department of State. If a match does not exist, the system inputs the voter’s information onto a voter registration form and sends it to the voter for their signature. No “legal distinction[s]” may be drawn between online voter registration and any other form of registration. The Division of Elections is required to “conduct a comprehensive risk assessment of the online voter registration system every 2 years.”
Preregistration
In 2007, the legislature allowed any underage citizen who receives a Florida driver license to pre-register to vote, even if it’s before their 17th birthday. The following year, it dropped the age for preregistration to 16.
Absentee Ballots, Vote-By-Mail, and Early Voting
Absentee Ballots or “Vote-by-Mail”
In 2016, Florida renamed absentee ballots to “vote-by-mail” ballots. This change in nomenclature reflected tremendous liberalization of the absentee ballot voting system.
No-Excuse Vote-by-Mail
One of the most substantial voting reforms the legislature adopted following the 2000 presidential election is making absentee ballots available to all voters. At the time of that election, Florida was a for-cause, excuse-based absentee voting state. Only certain categories of voters were permitted to cast absentee ballots. The 2001 overhaul eliminated these restrictions, opening up absentee voting to any eligible elector. Information about absentee ballots requested, delivered to voters, and received back by election officials must be reported electronically to the Department of State and is available to candidates and political parties.
Voter Information
In 2021, the legislature amended the law to require that, when making a request for a vote-by-mail ballot, the voter must provide the voter’s Florida driver license number, the voter’s Florida identification card number, or the last four digits of the voter’s social security number.
Ballot Request List
The legislature amended state law in 2021 to specify that a voter may request that the supervisor send vote-by-mail ballots for all elections through the end of the calendar year of the next regularly scheduled general election. This means that a voter must make a new request for vote-by-mail ballots every 2 years. In 2023, the legislature amended the law again to provide that a request for a vote-by-mail ballot “may be made in person, in writing, by telephone, or through the supervisor’s website.”
Deadlines
Supervisors of election must begin mailing absentee ballots to voters who have requested them starting at some point between 40 to 33 days before Election Day (except for military and overseas voters, whose ballots must be distributed 45 days before Election Day).
At the time of the 2000 election, the Election Code did not contain an express deadline by which domestic voters had to request absentee ballots. Now, under current law, voters can submit requests to have vote-by-mail ballots mailed to them up to 5:00 PM twelve days before Election Day, given to their designees until 7:00 PM on Election Day, and given to the voters themselves at the supervisor’s office until polls close at 7:00 P.M. on Election Day. Supervisors must mail out vote-by-mail ballots no later than ten days before the election. Supervisors must receive completed absentee ballots no later than 7:00 P.M. on Election Day (although the legislature established a later deadline for ballots from military and overseas voters).
Witness Requirements
At the time of Bush v. Gore, Florida required voters to have their completed absentee ballots notarized or witnessed by a registered Florida voter. By 2004, the legislature abolished all notarization and witness requirements.
Mailing Address for Absentee Ballots
During the 2000 election cycle, state law also required the supervisor of elections to mail absentee ballots only to a voter’s home address, except for certain special categories of voters who could request their ballots be sent elsewhere. In 2011, however, the legislature allowed any voter to request their vote-by-mail ballot be sent to an alternate location. The legislature later added that such a request must be made in writing.
Secure Ballot Intake Stations
An elector who has received a vote-by-mail ballot may return the ballot by mail or physically return the ballot to a secure ballot intake station. Secure ballot intake stations must be at the main office of the Supervisor, certain branch offices used for early voting, and all other early voting sites; they may also be at other sites that would qualify as early voting sites under the law. In 2021, the legislature directed that secure ballot intake stations “must be geographically located so as to provide all voters in the county with an equal opportunity to cast a ballot, insofar as is practicable.” Secure ballot intake stations must be continuously monitored by election officials. Solicitation within 150 feet of a secure ballot intake station is prohibited and is a first-degree misdemeanor.
Ballot Harvesting Restrictions
Following Bush v. Gore, the legislature repealed a provision that had made it illegal for someone to return more than two absentee ballots to the supervisor of elections (excluding a person’s own ballot and ballots of their family members). In 2013, however, the legislature attempted to deter ballot harvesting by making it a crime to offer or receive any benefit in exchange for collecting, delivering, or possessing more than two absentee ballots, excluding a person’s own ballot or their family members’ ballots. In 2021, the legislature explicitly banned ballot harvesting, and in 2022, enhanced the criminal penalties for this offense, making it a third-degree felony.
Pre-Canvass
One of Florida’s biggest advantages in recent elections that allowed it to report results early on election night was the fact that the legislature allowed election officials to canvas vote-by-mail ballots and tally them well in advance of Election Day. In 2001, the legislature authorized counties with electronic tabulation equipment to process absentee ballots before Election Day. After a series of amendments, state law allowed such pre-canvassing to commence 22 days beforehand. In 2021, the legislature further extended the start date for canvassing of vote-by-mail ballots to allow canvassing to begin after logic and accuracy testing is completed, up to 25 days before early voting begins. By determining the validity of absentee ballots and processing them through tabulation machines so far in advance of Election Day, election officials were able to determine the results of the 2020 and 2024 presidential elections in Florida shortly after the polls closed, without having substantial changes in the popular vote total in the days following the election.
No tallies or results may be disclosed prior to the closing of the polls on Election Day, however. In 2013, the legislature specified that, by 7 P.M. on the day before Election Day, the supervisor of elections must upload into the county system the tallies of all early voting and absentee ballots that have been canvassed and tabulated to that point. In 2021, the legislature further required that beginning at 7 P.M. on Election Day, the supervisor of elections must “at least once every hour while actively counting, post on his or her website the number of vote-by-mail ballots that have been received and the number of vote-by-mail ballots that remain uncounted.”
Signature Match
Under Florida law during the 2000 election, supervisors of election had the discretion to confirm the signature on an absentee ballot certificate to the voter’s signature in the registration book immediately upon receiving the completed ballot. The supervisor could declare a ballot invalid if either it lacked a signature or the signature did not match the registration book. In counties where the supervisor did not conduct the signature match upon receipt, the county canvassing board would do so when it canvassed the absentee ballots. The supervisor was required to notify voters whose ballots were rejected because their signature differed from official registration records and send them a new application they could use to update their signature.
In 2004, the legislature amended this provision to require the supervisor to inspect absentee ballot envelopes immediately upon receipt to compare the voter’s signature with the registration books.Nearly a decade later, the legislature directed the supervisor to notify any elector whose ballot is rejected (i.e., not just those whose signatures don’t match) and specify the reason. This law allowed any voter who omitted their signature from their absentee ballot envelope to “provide identification” and submit an affidavit to “cure the unsigned absentee ballot” by 5:00 P.M. on the day before Election Day. The affidavit form must be posted on the supervisor’s website, and it may be returned, along with a copy of the voter’s identification, in person, by mail, e-mail, or by fax. A federal district court held that these rules were likely unconstitutional because they did not provide an opportunity for voters whose signatures did not match to provide an alternate signature or otherwise confirm their identity.
In response, the legislature amended the law in 2017 to require supervisors to “immediately” notify a voter if the signature on their vote-by-mail ballot is missing or does not match election records; the voter may then submit a cure affidavit until 5:00 P.M. on the day before Election Day. In 2019, the legislature changed this provision to require that the supervisors attempt to notify an elector “as soon as practicable” and specified that the supervisor must notify electors by e-mail, text, or telephone, as well as by mail. A vote-by-mail ballot may be counted only if:
- the signature on the original ballot envelope matches the voter’s signature in the registration books or precinct register;
- the signature on the cure affidavit matches the voter’s signature in the registration books or precinct register, and the voter provides a form of photo ID authorized by state law that is current and valid, or certain alternate forms of identification without a photograph such as a utility bill, bank statement, government check or paycheck, or other government document (other than a voter registration card); or
- the signature on the cure affidavit does not match the voter’s signature in the registration books or precinct register, but the voter shows or provides a form of photo ID authorized by state law that is current and valid.
A cure affidavit accompanied by the required identification must also be treated as a request to update the voter’s signature. The 2019 amendments likewise declared that “any canvassing board finding that an elector’s signatures do not match must be by majority vote and beyond a reasonable doubt.”
In-Person Absentee Voting and Early Voting
In-Person Absentee Voting at the Supervisor of Elections Office
Prior to the 2000 election, state law allowed voters who were “unable to attend the polls” on Election Day to cast absentee ballots in person at the supervisor of election’s office prior to Election Day, if they did not wish to cast their ballots by mail. A few months before the 2000 election, the legislature amended the law to specify that, rather than simply dropping off a completed absentee ballot in person, a voter could instead deposit their completed absentee ballot into a voting machine at the supervisor’s office. This was the original form of early voting in Florida. Following Bush v. Gore – and consistent with its elimination of restrictions on mail-based absentee voting – the legislature specified that any voter could cast an absentee ballot in person at the supervisor of elections office prior to Election Day.
Early Voting
In 2004, Florida officially transitioned from in-person absentee voting to early voting. Several years later, the legislature declared supervisors of election were required to hold early voting and follow statutory requirements concerning the days and times for it, only for elections with federal and state races. Supervisors had discretion over whether to offer early voting in county and local races, and the days and times on which to provide it.
After numerous fluctuations, in 2011 the legislature required supervisors to conduct early voting for federal and state elections starting ten days before Election Day and continuing through the third day before Election Day. Two years later, the legislature gave each supervisor discretion to start early voting even earlier, between eleven and fifteen days before Election Day, and to extend the period through the second day before Election Day. On each day early voting is held, each site had to remain open between eight and twelve hours.
Originally, supervisors were required to hold early voting only at their main office, though they had discretion to allow early voting at branch offices, city halls, or public libraries, as well. Such additional sites had to “be geographically located so as to provide all voters in the county an equal opportunity to cast a ballot, insofar as is practicable.” In 2013, the legislature expanded the range of places early voting sites could be located to include fairgrounds, civic centers, courthouses, county commission buildings, stadiums, convention centers, and government-owned senior or community centers. If a county lacked any of those facilities, the county could designate an alternate site. In 2019, the legislature enacted a statute requiring supervisors of elections to ensure that early voting sites had “sufficient nonpermitted parking to accommodate the anticipated amount of voters.”
Provisional Ballots
After Bush v. Gore, the legislature also created “provisional ballots,” which are votes that are set aside when a voter’s eligibility is questioned so that their validity can be determined after Election Day. Provisional ballots allow election officials to resolve apparent problems or discrepancies concerning a person’s eligibility to vote without either turning the voter away or attempting to resolve the issue on the spot, with potentially incomplete information, while other voters are waiting. When a voter completes a provisional ballot, it is placed in a secrecy envelope, which is then placed in a provisional ballot envelope and deposited in a special box, to be reviewed by the county canvassing board after Election Day.
Under the law as originally enacted in 2001, a person could cast a provisional ballot at a polling location if they claimed to “be properly registered in the county and eligible to vote at the precinct,” but their eligibility could not be determined. A person was also entitled to cast a provisional ballot if they had requested an absentee ballot, and either polling place officials could not determine whether the supervisor of elections had received the completed ballot, or election records showed that the completed ballot had been returned, but the voter contends they had not voted absentee in that election. In 2003, after Congress enacted HAVA, the legislature amended the law to specify that anyone who votes “after the regular poll-closing time pursuant to a court or other order extending the statutory polling hours” also had to cast their vote with a provisional ballot.
The 2003 amendments further required the Department of State to establish a system to allow voters to determine whether their provisional ballot had been counted and the reason, if any, for rejection. The legislature expanded eligibility to cast provisional ballots again in 2005, stating that anyone who claims to be eligible to vote in a particular precinct, but whose “eligibility cannot be determined,” may cast a provisional ballot there. The law specified that a person may cast a provisional ballot even if precinct official believes they are ineligible to vote. The 2005 amendments also established a “cure period” after Election Day for provisional ballots. A voter could bring evidence of their eligibility to vote to the supervisor of election’s office until 5:00 P.M. three days after the election. The legislature shortened this cure period to two days in 2007.
After the election and the expiration of the cure period, the county canvassing board must publicly canvass provisional ballots. During the canvass, the board reviews each provisional ballot to determine whether the person “was entitled to vote at the precinct in the election and that the person had not already cast a ballot in the election.” In 2005, the legislature specified that provisional ballots must presumptively be counted unless the board determines by a preponderance of the evidence that grounds for rejection exist. If the board made the required findings, it then compared the voter’s signature on the provisional ballot envelope with the ballot in the registration records and counted the vote if the signatures matched.
Due to litigation, the legislature changed the rules concerning provisional ballot signature matching in 2019. The supervisor must attempt to notify an elector “[a]s soon as practicable” if a provisional ballot lacks the elector’s signature, or the elector’s signature on a provisional ballot fails to match official records. The supervisor must notify such electors by text, phone, or e-mail, as well as by mail, inviting them to submit a “cure affidavit.” The cure affidavit form must be available on the supervisor’s website. A voter must sign the cure affidavit attesting that they are qualified to vote in the election, registered in the county, have not cast multiple ballots in the election, and include a statutorily valid form of ID. The cure affidavit may be submitted in person, by mail, e-mail, or fax through the end of the cure period, which is 5:00 P.M. on the second day after the election. Like vote-by-mail ballots, a provisional ballot may be counted if:
- the signature on the voter’s certificate matches the voter’s signature in the registration books or precinct register;
- the signature on the cure affidavit matches the voter’s signature in the registration books or precinct register, and the voter provides a form of photo ID authorized by state law that is current and valid, or certain alternate forms of identification without a photograph such as a utility bill, bank statement, government check or paycheck, or other government document (other than a voter registration card); or
- the signature on the cure affidavit does not match the voter’s signature in the registration books or precinct register, but the voter shows or provides a form of photo ID authorized by state law that is current and valid.
The county canvassing board may reject a ballot due to a signature mismatch only by a majority vote and based on findings beyond a reasonable doubt.
Determining Election Results
Preliminary Returns
After the polls close on Election Day, election officials at each polling place must tabulate results and may transmit them electronically to the county canvassing board.During the 2000 election cycle, polling place officials had until noon on the day after Election Day to report their tallies to the board. The 2001 amendments required them to complete and report their polling place tallies by 2:00 A.M. following Election Day. In 2011, the legislature directed canvassing boards to report preliminary returns of all early voting and tabulated absentee ballots to the Department of State within 30 minutes of the polls closing, as well as updated results from each precinct “at least every 45 minutes until all results are completely reported.” If any precinct’s returns are missing, have omissions, or contain an “obvious error,” the canvassing board shall order a tabulation of that precinct’s results. Additionally, in 2021, the legislature required each supervisor of elections to post live voter turnout data, updated at least once per hour, on his or her website and to transmit the live voter turnout data to the Division of Elections, which “must create and maintain a real-time statewide turnout dashboard that is available for viewing by the public on the division’s website as the data becomes available.”
Unofficial Canvass Returns
The 2007 amendments also required county canvassing boards to provide “unofficial returns” to the Secretary of State by noon on the fourth day after Election Day (rather than five days afterward).
Prior to the canvass, the canvassing board must compare the returns prepared by polling place officials with the machine-generated tabulations from those polling places. If a discrepancy exists, the machine’s “tabulation of the ballots shall be presumed correct and such votes shall be canvassed accordingly.”Similarly, if the board determines that a tabulation system may have failed to count properly marked votes, the board must either correct the error and recount the ballots, or request that the Department of State verify the tabulation software. With those provisos, the canvassing board must base its canvass on the returns filed by polling place officials, and “shall not change the number of votes cast for a candidate, nominee, constitutional amendment or other measure . . . in any polling place, as shown by the returns.”
The canvassing board must determine the results from absentee and provisional ballots and include them in the canvass as well. Even prior to the 2000 election, Florida law had specified that if an absentee ballot is too “damaged or defective” to be read by an automatic tabulation machine, the board must prepare a “true duplicate” of the ballot and process the duplicate through the machine instead. In 2002, the legislature amended this provision to specify that, when an automatic tabulation machine detects either an overvote in a race or undervotes in all races despite the presence of markings on the ballot, the canvassing board must prepare a duplicate ballot containing “all valid votes as determined by the [board]” (using the vote-counting rules discussed in Section VI.E below).
In recent years, the legislature revised the public notice requirements for county canvasses to help promote transparency and bolster public confidence in election results. Under the current version of the statute, each county canvassing board must give public notice of the time and place of its canvass at least 48 hours in advance on the county’s website, the Supervisor’s website, or in the newspaper. If a canvass is recessed or suspended for more than 60 minutes, the board must post the time it will reconvene on its website; if it does not reconvene at that time, it must give at least two hours’ notice before reconvening. Board members must wear identification badges, and a notice listing their names must be posted at the canvass site. In 2021, the legislature further provided that during county canvassing board meetings, “each political party and each candidate may have one watcher able to view directly or on a display screen ballots being examined for signature matching and other processes.” The legislature also directed that candidates, political party officials, and their designees be granted “reasonable access” to “inspect ballot materials before canvassing or tabulation”—including voters’ signatures on ballot envelopes, certificates, and cure affidavits, as well as the “corresponding comparison signatures.”
Recounts
The conduct and timing of the recounts in the 2000 presidential race lay at the heart of Bush v. Gore. The legislature substantially revised the procedures governing recounts following that ruling.
Automatic Machine Recounts
The legislature retained the rule that if the unofficial returns of an election show that the leading candidate is ahead half a percent (0.5%) or less of the votes cast for that office, a recount must be ordered. Tabulation machines must be tested before being used in a recount. “If the test indicates no error, the recount tabulation of the ballots cast shall be presumed correct and such votes shall be canvassed accordingly.” If an error is detected, the cause shall be corrected and the recount completed. Election officials must duplicate any ballots that are too damaged to be processed, and run the duplicates through the tabulation machines instead. A 2020 amendment specified that, in an automatic recount, ballots that have already been processed through automatic tabulation equipment that is not part of the voting system used to cast them do not need to be run through the automatic tabulation equipment again.
Boards must complete automatic machine recounts by 3:00 P.M. on the ninth day after Election Day. If a canvassing board is unable to complete an automatic recount in time, the second set of unofficial returns it submits “shall be identical to the initial unofficial returns and the submission shall also include a detailed explanation of why it was unable to timely complete the recount.” The canvassing board must nevertheless complete the automatic recount, as well as any required subsequent manual recount, “and certify election returns in accordance with the requirements of this chapter.”
Manual Recount
If the second set of unofficial returns generated in the automatic machine recount shows that a candidate was defeated by a quarter of a percent (0.25%) or less of the votes cast in their race, a manual hand recount of the overvotes and undervotes in that race which the automated tabulation machines did not include in their tallies must be ordered. In 2005, the legislature specified that manual recounts are unavailable if the number of overvotes, undervotes, and provisional ballots is mathematically insufficient to change the outcome. A few years later, it further declared that the losing candidate could waive the manual recount.
To conduct a manual hand recount, the county canvassing board appoints two-person recount teams comprised, when possible, of “members of at least two political parties.” If a recount team is unable to determine “whether the ballot contains a clear indication that the voter has made a definite choice,” the county canvassing board resolves the issue.
In reviewing the overvotes and undervotes, election officials must count a mark as a vote “if there is a clear indication on the ballot that the voter has made a definite choice.” The Department of State must “adopt specific rules for each certified voting system prescribing what constitutes a ‘clear indication on the ballot that the voter has made a definite choice.’” Those rules may neither “[e]xclusively provide that the voter must properly mark or designate his or her choice on the ballot,” or “[c] ontain a catch-all provision that fails to identify specific standards, such as ‘any other mark or indication clearly indicating that the voter has made a definite choice.’” In 2020, the legislature declared that manual recounts may be performed with either the original marksense ballots or digital images of them. Even when using digital images, the canvassing board has discretion to compare them to the original paper ballots. If a voter interface device generates paper ballots with both machine-readable fields and machine-printed text, a manual recount must rely on the text, rather than the machine-readable fields, unless the text is illegible.
During the manual recount, election officials must also review any duplicate ballots that the canvassing board generated, which shall be compared to the original, damaged ballots.
Official Returns and the Statewide Canvass
County canvassing boards must provide “official returns,” reflecting the results of their canvass and any recounts, no later than noon on the 13th day after Election Day. In 2005, the legislature specified that, when submitting official returns, county canvassing boards must certify that they reconciled the number of ballots cast with the number of people who voted and that their canvass included all valid ballots. Supervisors of elections must submit a report to the Division of Elections identifying all equipment or software malfunctions, election definition errors, ballot printing or supply problems, staffing shortages, procedural violations by employees, insufficient staffing or equipment, or any other problems with the election.
At the time of Bush v. Gore, the Secretary of State had discretion to disregard late official returns. Following the 2000 election, the legislature required the Secretary to “ignore[]” late results and use the unofficial results from late counties instead. If a county’s results are delayed due to an emergency, however, the state may set an alternate deadline.
The state Election Canvassing Commission is responsible for certifying the official returns of federal, statewide, and multicounty elections and declaring the winners. It must meet two weeks after Election Day to certify results for federal, statewide, and multicounty races. During the 2000 presidential election, the commission was comprised of the Governor, the Secretary of State, and the director of the Department of State’s Division of Elections. The 2001 amendments altered the Commission to be comprised of the Governor and two cabinet members selected by the Governor. The Department of State may correct any typographical errors in the returns, and county boards must correct any typographical errors within five days of certification when the correction of such errors would result in a change in the outcome of an election.
Vote-Counting Rules
One of the central issues in Bush v. Gore was that Florida’s standard for determining the validity of votes violated the Equal Protection Clause because it left election officials too much discretion to afford different treatment to identically marked ballots. At the time, state law declared, “No vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board.” If it “is impossible to determine the elector’s choice, the elector’s ballot shall not be counted” for that office.
After Bush v. Gore, the legislature changed the law to specify that a vote cannot be invalidated “if there is a clear indication on the ballot that the voter has made a definite choice as determined by the canvassing board.” The statute continued, “If there is no clear indication on the ballot that the voter has made a definite choice for an office or ballot measure, the elector’s ballot shall not be counted for that office or measure.” The Secretary of State was directed to adopt rules for counting votes with electronic or electromechanical machines, as well as “additional recount procedures for each certified voting system which shall be uniform to the extent practicable.”
Election Contests
Within ten days after the last county canvassing board involved in conducting a particular election certifies its results, the losing candidate or any voter eligible to vote in that election may file an election contest. In 2001, in the wake of the litigation culminating in Bush v. Gore, the legislature eliminated a ground for election contests. It deleted a provision that allowed a person to protest an election based on:
[a]ny other cause or allegation which, if sustained, would show that a person other than the successful candidate was the person duly nominated or elected to the office in question or that the outcome of the election on a question submitted by referendum was contrary to the result declared by the canvassing board or election board.
It also deleted a provision that allowed a circuit judge hearing an election contest to “fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate.” A few years later, the legislature specified that when an election contest challenges signature matches for vote-by-mail or provisional ballots, the only evidence the circuit court may consider is the voter’s signature in the registration records, the signature accompanying the ballot or cure affidavit, “and any supporting identification that the elector submitted with the cure affidavit.”
Post-Election Audit
In 2007, the legislature required each county canvassing board to audit its election within seven days of certifying the results. A manual audit is a manual tally of all votes – including Election Day, absentee, early voting, provisional, and military and overseas ballots – cast from 1-2 percent of randomly selected precincts in a randomly selected race in that election. The Department of State may adopt rules for audits.
In 2013, the legislature allowed counties to conduct an “automated, independent audit” as an alternative. An automatic audit is an automated tally of the votes cast in every race from at least twenty percent of randomly selected precincts in the jurisdiction. The automated audit must be conducted “[c]ompletely independent[ly] of the primary voting system.”
Protecting Special Groups of Voters
Military and Overseas Voters
The 2000 election also involved litigation over the validity of ballots from overseas voters. The Gore campaign had tried to have military ballots from people stationed in foreign countries rejected based on alleged technical defects. When the legislature reformed the election code following the election, it simplified the rules concerning military and overseas ballots and expanded access for such voters:
Late Registration
In 2001, the legislature made it easier for members of the military, as well as other overseas citizens, to register to vote. A person who was discharged or separated from the military, Merchant Marine, or employment outside the United States, as well as members of their immediate family, after the close of registration for an election, could register to vote in that election until 5:00 P.M. on the Friday before Election Day. In 2013, the legislature further expanded registration opportunities for military voters, specifying that a member of the military who returned from deployment or activation after the registration deadline for an election, as well as their immediate family members, also could register to vote in that election up through 5:00 P.M. on the Friday beforehand.
Absentee Ballot Requests
Overseas voters – including military and Merchant Marine voters – may request absentee ballots. The legislature specified in 2010 that, if the request includes the voter’s e-mail address, their supervisor of elections must confirm receipt of the request, specify the date on which the absentee ballot will be sent, and notify them when their completed absentee ballot is received.When an overseas voter submits an absentee ballot request on a Federal Postcard Application under UOCAVA, the supervisor shall send them absentee ballots for all elections through the next two regularly scheduled general elections.
Write-In Absentee Ballots
The legislature adopted two mechanisms to alleviate the challenges of sending absentee ballots to overseas voters and ensure such voters would be able to cast their votes in time. First, in 2001, the legislature created state write-in absentee ballots. Up to six months before an election, an overseas voter could request a state write-in absentee ballot by certifying that, “due to military or other contingencies that preclude normal mail delivery,” they will be unable to request and cast an absentee ballot during the normal voting period. Supervisors of elections must begin distributing state write-in absentee ballots 180 days before the election, and continue to do so up to 90 days before Election Day. An overseas voter may use the state write-in absentee ballot to cast votes for all federal, state, and local offices for which they are entitled to vote. The voter writes in the name of the candidate or political party for which they wish to vote; any abbreviations, misspellings, or minor variations in form must be disregarded “if there is a clear indication on the ballot that the voter has made a definite choice.”
In 2010, the legislature recognized the federal write-in absentee ballot (“FWAB”) created by the Federal Voting Assistance Program. Under federal law, a voter may cast a FWAB if they requested a typical absentee ballot by the state-law deadline and did not receive it. FWABs are otherwise governed by the same rules as state write-in absentee ballots. The following year, the legislature directed the Secretary to promulgate regulations for counting FWABs. The statute specified, however, that after determining the candidates for whom a FWAB was cast, election officials must prepare a marksense ballot containing those votes, to be “counted in lieu” of the original ballot by an optical scan machine.
Absentee Ballot Distribution
In 2007, the legislature specified that absentee ballots must be mailed to overseas voters – including military and Merchant Marine voters – at least 45 days before Election Day. A later amendment specified that, at the voter’s request, the supervisor of elections must send the absentee ballot to overseas voters via mail, e-mail, or fax.
Absentee Ballot Return Deadlines
The 2001 amendments eliminated the requirement that absentee ballots from overseas ballots contain APO, FPO, or foreign postmarks to be deemed valid. The legislature also extended the deadline for the return of absentee ballots from overseas voters. For most primary elections, the standard deadline applied to overseas voters— absentee ballots must be received by election officials by the close of polls on Election Day. For general elections, however, as well as presidential preference primary elections, a ballot is valid so long as it is either postmarked or dated by Election Day and received by the supervisor of elections within ten days of Election Day. If election officials receive both an official ballot and a federal write-in absentee ballot from a voter by the deadline, they will count only the official one. Ballots from overseas voters are presumed to have been cast on the date the voter writes on the outer envelope, even if the postmark is missing or dated after Election Day.
Secretary of State Responsibilities
In 2003, in response to HAVA, the legislature directed the Secretary of State to designate an office within the Department of State to be “responsible for providing information regarding voter registration procedures and absentee ballot procedures” to military and overseas voters.
Electronic Transmission of Materials
The 2001 amendments originally required the Secretary to adopt rules to authorize supervisors of elections to accept absentee ballot requests and completed absentee ballots by fax and other electronic means. A few years later, the legislature softened these requirements, directing the Secretary instead to promulgate such rules only if determined they can be used “secure[ly].”
Emergency Provisions
The 2001 amendments also granted the Elections Canvassing Commission authority to adopt emergency rules authorizing alternate procedures for absentee voting when an emergency such as an armed conflict makes it impossible or unreasonable for overseas voters to comply with the ordinary rules for overseas voters.
Disabled Voters
The legislature also amended the code several times to facilitate voting for disabled voters. In 2002, the legislature directed that all polling places be physically accessible to disabled voters by 2004. Any polling place that could not be brought into compliance in time could receive a variance until 2006; after that date, the supervisor had to relocate the polling place to an alternate, accessible location.
The 2002 law further required that voting systems be accessible to disabled voters, specifying that they must be compatible with tactile or audio input devices, generate audio output using recorded human speech, and offer large print and enhanced audio amplification. Later, the legislature mandated that all voting systems must meet HAVA’s “voter accessibility requirements for individuals with disabilities” and use marksense ballots with voter-verifiable output. The legislature repealed a law requiring a person who wished to occupy a voting booth for more than five minutes to provide election officials with a reason. It likewise eliminated the requirement that a person who wishes to be aided by a person of their choosing in the voting booth reveal the reason to election officials.
Additionally, all forms used in connection with elections had to be generated in formats accessible to disabled voters and, except for absentee ballots, available over the Internet. The legislature also mandated that election officials receive training specifically with regard to “issues of etiquette and sensitivity with respect to voters having a disability.” The statute specified that a “recognized disability-related organization” must “develop and assist” with the training. “The program must include actual demonstrations of obstacles confronted by disabled persons during the voting process, including obtaining access to the polling place, traveling through the polling area, and using the voting system.”
Improving Election Administration
Photo Identification
Prior to 2003, state law had required a person wishing to vote in person to show a Florida driver’s license, a non-driver’s identification card, or other form of picture identification, without specifying any particular kinds. In 2003, the legislature amended this provision to require voters to show one of the following forms of identification and specified that it had to be “current and valid”:
- Florida driver’s license or non-driver identification card issued by the Department of Highway Safety and Motor Vehicles;
- U.S. passport;
- employee ID card;
- buyer’s club card;
- credit or debit card;
- military ID card,
- student ID card,
- retirement center or neighborhood association ID,
- entertainment card, or
- public assistance card.
If the photo ID did not contain the voter’s signature, the voter had to display another form of identification that bore it.
The legislature removed entertainment cards from the list of permissible IDs in 2005, as well as employee IDs and buyer’s club cards in 2007. The legislature later recognized additional forms of photo identification, however, including veterans’ health cards from the U.S. Department of Veterans Affairs, concealed carry permits, and employee identification cards issued by any governmental entity.
The 2003 amendment specified that certain first-time voters who registered by mail and lacked a valid form of ID could only cast a provisional ballot. In 2005, the legislature specified that any voter who attempted to vote at a polling place but lacked a valid form of ID could cast a provisional ballot.
Signature Match at Polling Places
At the time of the 2000 election, state law had specified that, after showing their ID, a voter had to sign the precinct register (a printout of voter information from the registration database) or registration book. If the voter’s signature matched the one on their identification card, they could cast an ordinary ballot.
In 2003, the legislature required the use of precinct registers at all polling locations, banning registration books. In 2005, it specified that election officials could require voters to sign an electronic device instead of a precinct register.
Voter’s Bill of Rights
One of the legislature’s initial responses to Bush v. Gore was the adoption of a statutory “voter’s bill of rights,” which supervisors of elections were required to post at each polling place. The bill of rights stated:
Voter’s Bill of Rights
Each registered voter in this state has the right to:
- Vote and have his or her vote accurately counted.
- Cast a vote if he or she is in line at the official closing of the polls in that county.
- Ask for and receive assistance in voting.
- Receive up to two replacement ballots if he or she makes a mistake prior to the ballot being cast.
- An explanation if his or her registration is in question.
- If his or her registration is in question, cast a provisional ballot.
- Written instructions to use when voting, and, upon request, oral instructions in voting from elections officers.
- Vote free from coercion or intimidation by elections officers or any other person.
- Vote on a voting system that is in working condition and that will allow votes to be accurately cast.
The bill of rights was accompanied by a list of voter responsibilities. Although it was enacted as part of the 2001 overhaul, the legislature revised the language the following year to read:
Voter Responsibilities
- Familiarize himself or herself with the candidates and issues.
- Maintain with the office of the supervisor of elections a current address.
- Know the location of his or her polling place and its hours of operation.
- Bring proper identification to the polling station.
- Familiarize himself or herself with the operation of the voting equipment in his or her precinct.
- Treat precinct workers with courtesy.
- Respect the privacy of other voters.
- Report any problems or violations of election laws to the supervisor of elections.
- Ask questions, if needed.
- Make sure that his or her completed ballot is correct before leaving the polling station.
NOTE TO VOTER: Failure to perform any of these responsibilities does not prohibit a voter from voting.
Recruitment and Training of Poll Workers
In response to the 2000 election, the legislature prohibited anyone from serving as an election inspector, clerk, or deputy sheriff if the individual did not complete training provided by the supervisor of elections. The legislature later granted the secretary authority to set the curriculum for the training and determine its length. Supervisors were also required to “work with the business and local community to develop public-private programs to ensure the recruitment of skilled inspectors and clerks.”
Transparency
The legislature bolstered election transparency and the integrity of early voting by requiring supervisors to publish the number of votes cast each day at each early voting location and the total number of vote-by-mail ballots received each day, as well as publish an hourly update, on Election Day, of the number of vote-by-mail ballots that have been received and the number that remain uncounted. The legislature further amended the law to require that live voter turnout data be available on Election Day and updated hourly.
To further promote transparency and election integrity, in 2021, the legislature prohibited the use of private funds, dubbed by the media as “Zuckerbucks,” for election-related expenses. This prohibition also includes expenses related to voter education, voter outreach, and registration programs. The legislature also made it easier for the state legislature and Attorney General to defend the constitutionality of election-related statutes.
Secure Ballot Intake Stations
In 2019, the legislature required supervisors of election to allow voters to return vote-by-mail ballots to secure drop boxes, later renamed by the legislature as “secure ballot intake stations,” which could be located at the supervisor’s office or branch office, as well as early voting locations and “any other site that would otherwise qualify as an early voting site.” In 2021, the legislature required supervisors to designate secure ballot intake stations at least 30 days before an election and specified that they should be geographically located to provide all voters in the county with an equal opportunity to cast a ballot. Secure ballot intake stations (other than at the supervisor’s office) may only be used during early voting hours, must be continuously monitored, and must be emptied daily. The supervisor is subject to a civil penalty of $25,000 for violations. The legislature also expanded the no-solicitation zone to 150 feet outside of secure ballot intake stations and prohibited individuals, political committees, or other groups from “engaging in any activity with the intent to influence or effect of influencing a voter” within non-solicitation zones.
Voting at Polling Places
In 2005, the legislature abolished registration books and specified that each precinct must check in voters using either a computer printout or an electronic database of eligible voters. A voter may sign that printout or an electronic device.
Each polling place must have written instructions concerning the “proper method of casting a ballot for the specific voting system” used in that precinct. If the voting machine at a polling place rejects a person’s completed ballot for any other reason, it is considered spoiled. An election official must tell the voter the “possible reasons for the rejection” and provide further instructions.The voter may choose to either cast the spoiled ballot anyway or fill out a new ballot. If the voter casts the spoiled ballot, the machine must accept it, but all votes in any election for which the voter casts overvotes will be disregarded.
The legislature also clarified that anyone waiting in line at the official closing time for a polling place may vote, even if they do not cast their ballot until after that designated closing time.
Centralizing Authority With The Secretary of State
A major theme of the legislature’s election reforms over the two decades after Bush v. Gore was the assignment of greater authority to the Secretary of State, who oversees the state’s Division of Elections. The legislature enhanced the Secretary’s ability to interpret state law, promulgate regulations, and enforce his or her view on county election officials, who are independently elected. These reforms led to more uniform treatment of voters in Florida, allowed the Secretary to prevent local election officials from misinterpreting or violating state law, and reduced uncertainty for both voters and candidates. However, the Florida Supreme Court has recently made clear that the Secretary’s powers are limited when performing ministerial functions, such as candidate qualifying.
Prior to the 2000 presidential election, the legislature had amended the election code to allow the Governor to appoint the Secretary of State, subject to Senate confirmation; previously, the Secretary was directly elected by the people. That change did not take effect until 2003. As part of its post-2000 reforms, the legislature granted the Secretary authority to promulgate regulations to implement various provisions of the election code. It also directed the Department of State to create a manual explaining polling place procedures. The legislature likewise directed the Secretary to “prescribe[e] minimum standards” for county supervisors to follow for “nonpartisan voter education” concerning “registration, balloting procedures, and voting rights and responsibilities.” The Secretary was later given authority to develop a “uniform training curriculum for poll watchers” to be used by all county supervisors, and to determine the length of the required training for election inspectors, clerks, and deputy sheriffs.
A few years later, as required by the Help America Vote Act (“HAVA”), the legislature established an administrative complaint process through which the Secretary could administratively adjudicate alleged violations of Title III of that statute – concerning the statewide voter registration database, provisional ballots, and voter registration forms – and issue injunctions prohibiting further violations. The Secretary’s powers were substantially expanded yet again in 2005 when the legislature allowed the Secretary to “adopt by rule uniform standards of the proper and equitable interpretation and implementation” of the Election Code. The Secretary could enforce these rules by suing county supervisors of election or other election officials who violated them. The legislature complemented this authority by also granting the Secretary power to “[c]onduct preliminary investigations into any irregularity or fraud” concerning elections and report findings to the Office of Statewide Prosecutor. The Secretary’s employees were granted “full access to all premises, records, equipment and staff” of county supervisors. The Office of Statewide Prosecutor, rather than local prosecutors, was given jurisdiction to prosecute crimes involving voter registration or voting. The Secretary was also granted power to make emergency rules concerning the Election Code to protect voting rights and conduct elections despite unexpected threats to public health, safety, or welfare. In addition, the Secretary could proscribe the forms necessary to conduct “maintenance of records” in the database and update voters’ address information.
The Secretary’s authority was expanded yet again in 2011 by a measure allowing the Secretary to “[p]rovide written direction and opinions to the supervisors of election on the performance of their official duties with respect to the Florida Election Code or rules adopted by the Department of State.” In 2019, the legislature authorized the Secretary to provide “formal signature match training” to county Supervisors of Election and county canvassing board members.
In the years following Bush v. Gore, the legislature directed the Secretary to submit various annual reports to the legislature to help it oversee the electoral process. Each year, for example, the Secretary must submit an annual report on “the performance of each type of voting system,” including any problems with the ballot design instructions, or voting system itself. The Secretary must likewise report any problems with ballot design, ballot instructions, or the state’s voting systems.
Recently, in 2022, the legislature created the Office of Election Crimes and Security (“OECS”) within the Department of State. OECS is tasked with receiving and reviewing reports of alleged election law violations or election irregularities and conducting preliminary investigations. Following preliminary investigation, “OECS refers all evidence of potential election crimes to the Florida Department of Law Enforcement (FDLE), the Office of Statewide Prosecution or the local state attorney for the judicial circuit in which the alleged violation occurred.” OECS also is tasked with overseeing the Department of State’s voter fraud hotline.
Principles For Best Practice Election Reform
The challenges of preserving representative democracy are not insurmountable. In Florida, all branches of state government – the legislature, executive, and judiciary – have demonstrated a commitment to restoring public trust in the electoral process. The legislature, however, has primary responsibility for providing an adequate statutory framework for ensuring fair, accessible, and secure elections. Comprised of the people’s elected representatives, the legislature is responsible for initiating the policy changes that ultimately lead to administrative regulations and judicial interpretations. As other states continue to strengthen their own election systems, they should consider the following lessons from Florida’s reforms over the past two and a half decades:
#1. Voting Machine: Adopt reliable voting machines that generate a voter-verifiable paper audit trail, so voters can confirm that their choices are being recorded accurately, and election officials can audit the machine’s tallies.
#2. Ballots: Ensure that ballots are organized logically and clearly so that voters can easily cast their votes for their desired candidates.
#3. Voter Registration Database: Records in the voter registration database must be as accurate and up-to-date as possible. Each state should require its Department of Motor Vehicles, Department of Health, Department of Judiciary, Department of Corrections, and other state entities that have information relevant to voters’ identities, eligibility, and residence to automatically provide such data on a frequent, ongoing basis to identify duplicative, outdated, or fraudulent records. Additionally, election officials should attempt to identify non-citizens by cross-referencing records with available federal immigration data sources, as well as postcards that people return to courts to claim they are ineligible for jury duty due to lack of U.S. citizenship.
#4. Avenues for Voting: The state should adopt opportunities to cast ballots other than in person on Election Day to help alleviate the burdens on election officials and protect the electoral system from unexpected emergencies. These voting alternatives must be reasonably accessible to all voters, secure from interference or fraud, and operated in a manner that bolsters public confidence in the system. States that use absentee ballots should distribute them only to voters who request them, rather than automatically sending a ballot to each record in the registration database. Voters who submit requests for absentee ballots should be required to submit new requests every two years and provide unique identifying information on the form, such as a driver’s license or other similar number. Completed absentee ballots should likewise be subject to verification to ensure they were cast by the voter entitled to do so.
#5. Provisional Ballots: While the Help America Vote Act (“HAVA”) provides minimum federal requirements for when states must use provisional ballots, they should make provisional ballots more broadly available to avoid the complementary risks of either turning away potentially eligible voters from polling places or allowing ineligible individuals to cast votes on ordinary voting machines that cannot later be identified and set aside. Provisional ballots also help prevent long lines at polling places by alleviating the need for election officials to definitively determine a voter’s eligibility on the spot.
#6. Pre-Canvassing: Election officials should begin pre-canvassing absentee or vote-by-mail ballots as soon as they start receiving returned, voted ballots. Pre-canvassing includes confirming the identity of the voter who cast the ballot (i.e., through signature match or verifying the voter’s driver’s license or other identification number), determining the ballot’s validity, duplicating damaged ballots, and potentially even processing the ballot through an automatic tabulation machine (without revealing any tallies to election officials). By pre-canvassing absentee and vote-by-mail ballots prior to Election Day, election officials can ensure that the election’s results are available as soon as possible after the polls have closed on election night. Moreover, pre-canvassing such ballots reduces the likelihood that the apparent winner of an election will change between the time initial results are announced on election night and when results are finalized after all the absentee and vote-by-mail ballots have been counted.
#7. Transparency: Election officials should welcome as much transparency as possible into the electoral process. They should post as much information as possible on the Internet concerning the number of absentee ballots distributed, received, and counted. They should likewise post information from each early voting site about the number of votes cast on each voting machine at the beginning and end of each day, as well as the total number of voters who signed into each location to vote. Candidates and political parties should be guaranteed the right to have a sufficient number of poll watchers at each election location to meaningfully monitor activities. Rather than being relegated to distant areas, they should be assured the right to see the content of papers being reviewed by election officials, including voters’ identification cards; signatures on absentee ballots, voter certificates, and cure affidavits (as well as the voter’s signature on file being used for comparison purposes); the duplication of damaged ballots; and determinations of voter intent during manual canvasses or recounts, depending on the jurisdiction.
#8. Canvassing: State law should clearly set forth the extent of canvassers’ duties, powers, and discretion.
#9. Special Populations of Voters: Election officials must ensure they not only comply with federal statutes protecting the rights of military, overseas, and disabled voters, but maximize their opportunities to vote by removing unnecessary barriers.
#10. Photo Identification: Voters must have ready access to photo identification without charge from the state. States should require reasonable, secure forms of current and valid photo identification to confirm voters’ identity at polling places and early voting sites and limit the types of accepted photo identification.
#11. Secretary of State: The Secretary of State should have the authority to promulgate regulations to construe vague or ambiguous provisions of state election law, ensure that county and local officials interpret and apply election law consistently and uniformly, ensure that elections are run consistently with all federal and state constitutional, statutory, and regulatory requirements, and investigate irregularities or allegations of election fraud.
#12. Non-citizen Voting: Every state should amend its constitution to ensure that only American citizens vote in state and local elections.
Conclusion
The 2000 presidential election brought unprecedented scrutiny to many important aspects of Florida’s electoral system. Over the two and a half decades since Bush v. Gore, the Florida legislature has amended the Florida Election Code scores of times, fixing many of the problems that the 2000 election revealed and adopting other improvements. These modifications helped ensure that the 2020 and 2024 presidential elections were conducted safely, efficiently, and successfully, with conclusive results reported from Florida on election night while other states had just begun counting.
In short, while additional reforms could improve Florida’s election system still further, the state has come a long way since the election of 2000. Its ability to conduct fair, accessible, and robust elections has earned Florida the nickname of “The Gold Standard” when it comes to election administration and election integrity, and other states should follow Florida’s lead.
