Florida Attorney General Letter to Elections Supervisors
November 20, 2000
 

To: All County Supervisors of Elections and All County Canvassing Boards

Sirs or Madams:

It has come to the attention of this office that there may have been some confusion on the part of local canvassing boards in the counting of absentee ballots from U.S. military personnel serving overseas. Based upon news media reports, it appears that some of these ballots may have been rejected due to the lack of a postmark.

This office urges supervisors and canvassing boards in any county which has received such ballots to immediately revisit this issue and amend their reported vote totals, if appropriate.

This office believes that Florida and federal law support the counting of overseas military ballots from qualified electors registered to vote in the county if one of the following two conditions is met:

The ballot is postmarked no later than the date of the election, or the ballot is signed and dated no later than the date of the election.(2)

No man or woman in military service to this nation should have his or her vote rejected solely due to the absence of a postmark, particularly when military officials have publicly stated that the postmarking of military mail is not always possible under sea or field conditions. Thus, canvassing boards should count overseas ballots which are from qualified military electors and which bear no postmark if the ballot is signed and dated no later than the date of the election and are otherwise proper.

This office urges supervisors and canvassing boards to seek a clarifying opinion from the Secretary of State if they have any questions on this matter after review of the authorities cited in this letter.

Sincerely,

Robert A. Butterworth Attorney General

Florida Attorney General Fact Sheet
Consent decrees regarding overseas absentee balloting
in the State of Florida
November 21, 2000

In November 1980, the U.S. Justice Department commenced litigation against the State of Florida "to ensure that those individuals who have qualified and applied for absentee ballots . . . would be given a reasonable opportunity to cast and return such ballots before the close of the polls" in that year's elections. The Justice Department cited the Overseas Citizens Voting Rights Act of 1975 and the Federal Voting Assistance Act of 1955.

Subsequently, the State of Florida, through the Office of the Attorney General, entered into a series of compliance orders intended to ensure that Florida electors overseas on election day would have an ample opportunity to record a vote.

Over the November 18-19 weekend, an allegation was made that a substantial number of absentee votes from military personnel overseas had been challenged and rejected merely for lacking a postmark. Some news media organizations reported, as one newspaper put it, that "the most common reason for the ballots' invalidation was that they lacked postmarks." In response to those allegations and reports, two assistant attorneys general were assigned to evaluate the counties' reported actions in the context of the State's agreements with the U.S. Justice Department.

It was determined that the Secretary of State had not been asked by any local canvassing board or board member for a formal opinion on the postmark issue. Former Florida Attorney General Jim Smith, who oversaw the State's initial response to the Federal litigation, was consulted, as was Paul Hancock, who had been the director of the U.S. Justice Department's Voting Litigation Program at the time the agreements were reached between the United States and the State of Florida (and who, coincidentally, is currently a deputy attorney general in Florida).

A Florida statute(1) appears to require a postmark on all overseas ballots, while a rule of the Secretary of State(2) clarifies that a date entered by the elector and/or the witness can substitute for a postmark, thus allowing the ballot to be counted provided all other qualifying criteria are met. The publicly articulated allegation, the news media reports and public statements by some canvassing board members indicated that some boards might have relied upon the statute in processing overseas military ballots, rather than the Secretary of State's rule. With the hope that no member of the uniformed services have his or her signed and dated ballot disqualified solely for lack of a postmark, this office urged elections supervisors to revisit the postmark issue, if it had arisen locally, to seek guidance from the Secretary of State, if desired, and to seek to amend the military overseas balloting returns, if appropriate.

Based upon the information available to this office at this time, it appears that an absentee ballot supplied by the Federal government includes a space for a hand-entered date while absentee ballots provided by some, if not all Florida counties, did not contain a line on the envelope for a date. (If a notary served as a witness, the notary would have been required to include a date, pursuant to the statutorily mandated form for witnessing absentee ballots.) (1) Therefore, this office has no knowledge of how many overseas military ballots lacking postmarks contained handwritten or notarized dates that would qualify them under the Secretary of State's rule. Whatever their number, however, it is the view of this office that they should be counted.

Additionally, the Attorney General regularly reports to the Governor and Legislature statutes that have proven defective or been voided, in total or in part, by developing caselaw. This year's report will include a strong recommendation that the statutes related to overseas absentee balloting be revisited and that military postal officials be consulted to ensure that Floridians in military service to their nation overseas have the fullest opportunity to vote.

References

(1) "(c) With respect to marked ballots mailed by absent qualified electors overseas, only those ballots mailed with an APO, FPO, or foreign postmark shall be considered valid." 101.62(f)(c), Fla. Stat. (2000).

(2) "With respect to the presidential preference primary and the general election, any absentee ballot cast for a federal office by an overseas elector which is postmarked or signed and dated no later than the date of the election shall be counted if received no later than 10 days from the date of the Federal election as long as such absentee ballot is otherwise proper." F.A.C. s. 1S-2.013(7); 42 U.S.C. s. 1973ff-3.