Counting Ballots in Florida: Where you Live Matters

Daniel A. Smith, Professor, Political Science, University of Florida, and Michael C. Herron, Professor of Government, Dartmouth College

A lesson all Floridians should have learned from the 2000 presidential election meltdown is that state law requires the uniform application across all 67 counties in Florida of the electoral code. Nonetheless, reports are surfacing that high numbers of voters in some counties are having their absentee ballots rejected by local canvassing boards, and still others indicate that voters turning out to cast early ballots at the polls are being required to vote provisional ballots.

For an absentee ballot to count, the envelope in which it was mailed must have a voter signature. The voter’s signature must match a signature on file with a relevant Supervisor of Elections Office. County canvassing boards – made up of three members, one of whom is the local supervisor of elections (unless he or she is running for re-election) – are responsible for determining if a given absentee ballot should be accepted or rejected.

Historically, and again in the 2012 presidential election, problems with a voter’s signature are associated with rejected absentee ballots.

This past week, in Palm Beach County, a woman who cast an absentee ballot that was deemed “rejected as illegal” by the county canvassing board, apparently because her signature on the back of the envelope didn’t match the record on file with the supervisor, filed a lawsuit to challenge her vote not being counted. The circuit judge who heard the case on Friday, while sympathetic to the 61-year-old’s claim that it was indeed her signature on the back of the envelope, told her from the bench, “Logic, common sense, equity, the American way – they’re all on your side.” But, “[W]hen I read the statutes I’m not convinced logic, common sense and the law reside in the same house.”

And in Volusia County, news accounts report that more than 400 voters have already have had their absentee ballots rejected by the local canvassing board, including more than 150 voters whose signatures on the back of the privacy envelopes apparently didn’t match what was on file with the local Supervisor of Elections Office.

Voters whose absentee ballots are rejected for signature problems appear to be out of luck. There are no second chances if signatures do not line up on absentee ballots. If an absentee ballot is rejected by the canvassing board, a voter may not legally cast a replacement ballot at the polls.

In 2008, according to a survey of Florida’s 67 Supervisors of Elections conducted after the presidential contest by the U.S. Election Assistance Commission, 18,456 absentee ballots were rejected statewide, roughly 1 percent of the total absentee ballots cast. Of those absentee ballots deemed to be invalid, 30.5 percent were received after the close of polls on Election Day, 34.0 percent did not have a signature on the return envelope, and 25.8 percent had a non-matching signature. A couple dozen more absentee ballots were rejected because there were multiple ballots in an envelope, the envelope returned that was returned was unofficial, or the envelope wasn’t sealed.

Turning now to problems with voting in person, Florida law allows individuals who claim to be properly registered and eligible to vote but whose eligibility cannot be verified at the polls, to cast a provisional ballot. While no hard data on the status of these ballots from Florida’s 67 counties is yet available for the 2012 election, if history is any guide, voters who are required to cast provisional ballots will be very unlikely to have their votes tabulated.

Compared to the rejection rates of absentee ballots, voters casting provisional ballots at the polls four years ago were even more likely to have their ballots rejected by canvassing boards. Indeed, over half of the 35,635 provisional ballots cast during early voting period or on Election Day in 2008 were subsequently rejected. Most of those whose provisional ballots were rejected were determined not to be registered in Florida or had voted in the wrong county (and failed to update their addresses); a few others didn’t provide adequate identification at the polls or filled out information on their provisional ballot privacy sleeves incorrectly.

The point we are trying to make clear is that many ballots cast in Florida are rejected. And, as we show in the accompanying graphic (click here) depicting the August primary – which displays the proportion of rejected absentee ballots along the X axis and provisional ballots along the Y axis, with the size of the dots representing the sum of the absentee and provisional ballots cast in the election — the likelihood of a ballot being rejected appears to depend on where it was cast, that is, in what county. All Florida voters should thus be asking, is there reason to be worried that the likelihood that my absentee or provisional ballot might be rejected depending on the county of my residence?

To get a better sense of the importance of this question, we looked at the patterns of rejected absentee and provisional ballots across Florida’s 67 counties in the recent Aug. 14 primary election. More than 786,000 voters cast absentee ballots and nearly 3,000 more were required to cast provisional ballots in this election, held only a few months ago.

Thousands of absentee and provisional ballots were rejected by county canvassing boards in the August primary. These rejection figures need to be considered in the context of a primary. That is, the primary was an election in which “super voters” — the state’s most highly engaged voters – made up the vast majority of the voter pool.

What we found by analyzing voter history files maintained by the Florida Division of Elections is that the rejection rates of absentee and provisional ballots vary considerably across the state. As the graphic reveals, some counties reject a much higher proportion of absentee ballots and provisional ballots than others. Our analysis of official voter history files assumes that all absentee and provisional ballots cast were accepted unless there is unambiguous evidence in the history files that they were not. In addition, we also eliminated obvious inconsistencies in the state’s voter files in a way that we believe is appropriate.

With nearly 2 million absentee ballots already received by Supervisors of Elections Offices in advance of the upcoming 2012 general election, and countless more provisional ballots being cast during early voting (and on Election Day), there is a good possibility that we will see an even higher percentage of absentee and provisional ballots rejected by local canvassing boards than in the August primary and possibly even the 2008 general election.

Unfortunately, we won’t know definitively how many absentee and provisional ballots will be rejected until after voting has concluded and, presumably, a president named.

But the considerable variation across counties when it comes to rejecting absentee and provisional ballots is troubling. At this point we cannot say why there are considerable differences in Florida in the rejection rates of absentee and provisional ballots. But, we are suspicious that election administration across the state’s 67 counties is not entirely in keeping with a uniform application of the state’s electoral code.

In order to prevent another election fiasco, we think it is crucial that election administrators not only help voters become more educated about submitting valid absentee ballots, but also do what they can to avoid forcing voters to cast provisional ballot. It is also critical that supervisors of elections and county canvassing boards apply a uniform standard when making what are often judgment calls that decide whether a ballot counts or not.

Voting is a fundamental right in the United States. Casting absentee and provisional ballots may, unfortunately, be leading to the disenfranchisement of some voters, depending on the counties in which they reside.

Drs. Smith and Herron have co-authored articles in several outlets examining voting rights and election law in Florida.