[EL] Fwd: Question for the List; Re: Whether Challenged Voters in FL must automatically vote provisional ballot

[Rick Hasen]

-------- Original Message --------
Subject: 	Question for the List; Re: Whether Challenged Voters in FL 
must automatically vote provisional ballot
Date: 	Wed, 26 Sep 2012 11:13:24 -0700
From: 	Brian Marron <bmarron at yahoo.com>
Reply-To: 	Brian Marron <bmarron at yahoo.com>
To: 	law-election-owner at department-lists.uci.edu 
<law-election-owner at department-lists.uci.edu>
CC: 	lowenstein at law.ucla.edu <lowenstein at law.ucla.edu>, 
rhasen at law.uci.edu <rhasen at law.uci.edu>, rick.pildes at nyu.edu 
<rick.pildes at nyu.edu>



I'm doing some research on vulnerabilities in election laws' protection 
of voting rights in key states. Do you know whether Florida's Section 
101.111 requires that a challenged voter MUST vote a provisional 
ballot?  I've seen some interpretations that the dispute about the 
elector's eligibility cannot be decided on site by the 
clerk/inspectors.  Below are some links & key texts. Thanks.
Brian Marron
*****************************
101.111 Voter challenges.—(1)(a) Any registered elector or poll watcher 
of a county may challenge the right of a person to vote in that county. 
The challenge must be in writing and contain the following oath, which 
shall be delivered to the clerk or inspector:
OATH OF PERSON ENTERING CHALLENGE
State of Florida
County of
I do solemnly swear or affirm that my name is  ; that I am a member of 
the   Party; that I am a registered voter or pollwatcher; that my 
residence address is  , in the municipality of  ; and that I have reason 
to believe that   is attempting to vote illegally and the reasons for my 
belief are set forth herein to wit:
   (Signature of person challenging voter)
Sworn and subscribed to before me this   day of  , (year)  .
   (Clerk of election)
(b)1. The clerk or inspector shall immediately deliver to the challenged 
person a copy of the oath of the person entering the challenge, and the 
challenged voter shall be allowed to cast a provisional ballot in 
accordance with s. 101.048, except as provided in subparagraph 2.
2. If the basis for the challenge is that the person’s legal residence 
is not in that precinct, the person shall first be given the opportunity 
to execute a change of legal residence in order to be able to vote a 
regular ballot in accordance with s. 101.045(2). If the change of legal 
residence is such that the person is then properly registered for that 
precinct, the person shall be allowed to vote a regular ballot. If the 
change of legal residence places the person in another precinct, the 
person shall be directed to the proper precinct to vote. If such person 
insists that he or she is currently in the proper precinct, the person 
shall be allowed to vote a provisional ballot in accordance with s. 101.048.
(c) Alternatively, a challenge in accordance with this section may be 
filed in advance with the supervisor of elections no sooner than 30 days 
before an election. The supervisor shall promptly provide the election 
board in the challenged voter’s precinct with a copy of the oath of the 
person entering the challenge. The challenged voter shall be allowed to 
cast a provisional ballot in accordance with s. 101.048, subject to the 
provisions of subparagraph (b)2.
(2) Any elector or poll watcher filing a frivolous challenge of any 
person’s right to vote commits a misdemeanor of the first degree, 
punishable as provided in s. 775.082 or s. 775.083; however, electors or 
poll watchers shall not be subject to liability for any action taken in 
good faith and in furtherance of any activity or duty permitted of such 
electors or poll watchers by law. Each instance where any elector or 
poll watcher files a frivolous challenge of any person’s right to vote 
constitutes a separate offense.
***************************************
 From Florida Department of State 
(soe.dos.state.fl.us/pdf/GuidelinesVoterChallenges.pdf) Voter Challenges 
memo: Florida Department of State/Divison of Elections (June 2011) "Once 
a person is challenged at the polls, the person does not have a choice 
(with one exception) but to vote a provisional ballot if he or she 
chooses to vote."
The Polling Place Procedures Manual paraphrases Section 101.111. 
election.dos.state.fl.us/rules/adopted-rules/pdf/DSDE11_Final_1S2034.pdf



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