Florida Election Law

The latest in Florida Election Law issues, cases, legislation, and news.

A personal blog of

Ken Tinkler.

  

  

 

Copyright 2016 Ken Tinkler

3rd DCA: Check Bounced by Mistake Still Costs Spot on the Ballot

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The Third District Court of Appeal, on expedited review, upheld a lower court ruling that found that a candidate for mayor of the City of Miami Gardens had been properly excluded from the ballot because his qualifying check bounced, even though he had enough funds in his account and it appears the bank in questions made an error.  The reason for this is the “plain and unambiguous” wording of the qualifying statute, which provides at Section 99.061(7)(a)1:

(7)(a) In order for a candidate to be qualified, the following items
must be received by the filing officer by the end of the qualifying
period:
1. A properly executed check drawn upon the candidate’s campaign
account payable to the person or entity as prescribed by the filing
officer in an amount not less than the fee required by s. 99.092, unless
the candidate obtained the required number of signatures on petitions
pursuant to s. 99.095. The filing fee for a special district candidate is
not required to be drawn upon the candidate’s campaign account. If a
candidate’s check is returned by the bank for any reason, the filing
officer shall immediately notify the candidate and the candidate shall
have until the end of qualifying to pay the fee with a cashier’s check
purchased from funds of the campaign account. Failure to pay the fee
as provided in this subparagraph shall disqualify the candidate.

As the bounced check was not returned until after the qualifying period had ended, the court found, with “tremendous distaste for the result” that they were compelled by the statute to affirm the lower court’s denial of any relief.  This holding was consistent with a First District Court of Appeal opinion in 2014, which found that the Legislature had specifically removed the prior 48 hour cure period for bounced checks that existed prior to 2011.  That case triggered a vehement dissent on the denial of rehearing en banc.

The Third District Court of Appeal did certify the following question as one of great public importance:

Does section 99.061(7)(a)1. require a candidate’s disqualification when the candidate’s qualifying fee check is returned by the bank after the expiration of the qualifying period due to a banking error over which the candidate has no control?

Whether the Supreme Court will consider this question is discretionary, and the Court, in 2014, declined the acceptance of jurisdiction of the First District case.

Florida Supreme Court affirms 4th DCA ruling declaring F.S. 99.0615 invalid

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In Jennifer Brinkmann v. Tyron Francois, etc., et al., the Florida Supreme Court affirmed the Fourth District Court of Appeal’s prior ruling declaring F.S. 99.0615 invalid.  The statute provided:

F.S. 99.0615 Write-in candidate residency requirements.—At the time of qualification, all write-in candidates must reside within the district represented by the office sought.

The Court found the statute to be facially unconstitutional because it directly conflicted with the Florida Constitution’s requirement that requires residency in a particular district at the time of election, not at qualification.  The Court went on to determine that write-in candidates are considered to be “opposition” under Flordia’s election laws, meaning the presence of a write-in candidate will continue to result in the closing of a primary election to only those who are members of that political party.

In an interesting paragraph, the Court turned to the dictionary to define the term “opposition”:

“According to dictionary definitions, “opposition” meant “a position confronting another or placing in contrast; that which is or furnishes an obstacle to some result.” Black’s Law Dictionary, 1093 (6th ed. 1990). It was also defined as an “act of opposing,” a “hostile or contrary action or condition,” and “something that opposes,” or “a political party opposing and prepared to replace the party in power.” Merriam-Webster’s Collegiate Dictionary 816 (10th ed. 1998). The act of “opposing” was “appli[cable] to any conflict” and synonymous with “set[ting] oneself against someone or something.” Id. Conversely, someone or something was “opposed” if he, she, or it was “set or placed in opposition.” Id. Additionally, an “opponent” was “one that takes an opposite position (as in a debate, contest, or conflict).” Id. at 815.”

 

Court finds Florida Congressional Redistricting Map to be Unconstitutional

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A Leon County Circuit Court judge issued a final judgment in the cases of Romo v. Detzner & Bondi and The League of Women Voters of Florida, et al. v. Detzner finding “that districts 5 and 10 were drawn in contravention of the constitutional mandates of Article III, Section 20, thus making the redistricting map unconstitutional as drawn.”

The extensive docket of the case is online, you will likely need to scroll down to “2012 CA 000412: Romo, Rene vs Scott, Rick.”

The map of District 5 is highlighted below:

District 5

 

The map of District 10 is highlighted below:

District 10

The maps are published online by the Florida Senate.

The provisions of the Florida Constitution at issue were Article III, Sections 20 and 21, related to redistricting.

 

Questionable voter registration applications turn into criminal investigation

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The Florida Department of Law Enforcement has now opened a criminal investigation into the voter registration activities of Strategic Allied Consulting, hired by the Republican Party of Florida to register voters, according to media reports.  The company has posted a statement online stating the problems were the result of a contractor not following procedure.  The Tampa Bay Times is reporting that Supervisors of Elections throughout the state are finding questionable forms and the Tampa Tribune reports on one county attempting a sysmtematic examination.  The New York Times is reporting on the company’s background.  This is particulary notable given all of the debate this year over the restrictions passed in HB1355 in 2011 regarding voter registration activities.

Tie vote

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The City of Eagle Lake is dealing with a recount-confirmed tie vote, according to NewsChief.com.  Seven voters did not pick a candidate, and the remaining votes from the less than 20% turnout resulted in a tie.  Fla. Stat 100.181 speaks to this: “such persons shall draw lots to determine who shall be elected to the office.”

Kenneth City Mayor/Charter case

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Bay News 9 here in the Tampa area is reporting on a case in Kenneth City, over in Pinellas County. The charter in Kenneth City bars its elected officials from holding office at the same time as they work as a public employee. A school teacher, who recently was elected mayor of the town (yes, Kenneth City is listed as a town), challenged the constitutionality of the charter. The court sided with the City, however, holding in this opinion posted by Bay News 9 that the provision was constitutional and fully enforceable.

Free stamps=bribe?

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The Orlando Sentinel reports that one of the political parties mailed stamps to voters and told them to use the stamps to return their absentee ballot for the Florida House District 32 contest. The question is whether that crosses the line and constitutes a bribe under Fla. Stat. 104.061 or is of such nominal value that it does not cause a problem.

Dual disqualifications in West Palm Beach

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Both candidates for the District 3 City Commission race in West Palm Beach have been deemed disqualified because of election law errors. The challenger was disqualified for paying her filing fees with a personal check, while the incumbent had the wrong signature on her campaign account designation form. A special election is now likely, more in the Palm Beach Post.