Procedures & Remedies (FL)

Florida Procedure & Remedies Tutorial

When deciding election law cases, the judiciary encounters procedural obstacles that are largely absent from other strains of legal dispute. For example, courts deciding election cases often must render decisions under pressing time constraints as democratic outcomes wait in limbo.[1] These temporal pressures necessitate time-sensitive procedural mechanisms not typically found in other types of litigation. Further, judicial immersion in electoral matters can embroil courts in inherently partisan processes that are traditionally within the purview of the elected branches. The judiciary’s entanglement in the “political thicket” inevitably stokes anxieties over judicial neutrality, and can seem incongruent with the constitutional norms of federalism and separation of powers.[2]

In response to these procedural difficulties, both legislatures and the judiciary have, in certain instances, tweaked procedural rules and doctrine to fit the electoral context. These responses range from statutory expedition of certain election law cases to adjustment of pleading rules. This tutorial reviews procedural distinction at the federal level and in Florida developed to confront challenges posed by certain election cases. Part I looks at Voter Registration claims; Part II concerns Ballot Access laws; Part III examines Election Administration; Part IV centers on Redistricting litigation; Part V focuses on Election Contests; and Part VI reviews Campaign Finance enforcement procedure.

Readers should bear in mind that this tutorial is not intended as an exhaustive assessment of civil procedure in relation to the myriad topics within the umbrella of election law. Many important components of civil procedure are not covered. Instead, this tutorial aims to highlight instances when election law procedure deviates from rules and standards applicable in other areas.


Part I. Voter Registration

In the early 1990s, Congress passed the National Voter Registration Act (“NVRA”) to bolster participation in federal elections.[3] To promote expansion of voter registration lists, the NVRA requires states to implement processes allowing citizens to register to vote when applying for a driver’s license or services, or through a mail-in application.[4] The Justice Department is authorized to bring civil suits in federal court against states and their political subunits to compel compliance with the NVRA.[5] Knowing and wilful violations of the act are subject to criminal prosecution, and applicable penalties include fines and up to five years imprisonment.[6]

The NVRA also authorizes private actions, though persons generally must try to resolve their grievance through administrative channels prior to filing suit, unless the violation occurs in the thirty days before a federal election.[7] Specifically, the NVRA requires that the aggrieved person notify a state’s chief election officer of an alleged violation and afford election officials some time to remedy the grievance. If state officials do not correct the violation in 90 days, or twenty days if within 120 days of a federal election, the complainant may initiate a civil action in federal district court.[8]

Florida’s process for reviewing state voter registration complaints mirrors the procedure outlined in the NVRA. Complaints are filed with the Department of State, and the department must try to resolve the issue through an informal dispute resolution process before litigation is permitted. If the grievance is not resolved within ninety days of the complaint’s filing, or twenty days if within 120 days of an election, the complainant may bring an action against the offending governmental unit in circuit court. Notably, if the violation happened within thirty days of an election, the complainant may forgo the administrative process and immediately file suit in circuit court.[9]


Part II. Ballot Access

The Elections Clause of the U.S. Constitution empowers states to regulate the time, place, and manner of federal elections,[10] and a significant component of states’ electoral authority is the power to set ballot access qualifications.[11] Consequently, both candidates and parties have attacked the constitutionality of state ballot access laws, contending that ballot access requirements impermissibly burden associational and voting rights protected by the First and Fourteenth Amendments.

When considering constitutional challenges to ballot qualifications, courts balance “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments” against “the precise interests put forward by the State as justifications for the burden.”[12] Courts particularly focus on the degree to which ballot access statutes restrict political opportunity.[13] If a statute’s restrictive effect on ballot access is severe, the court will uphold the law only if it is “narrowly drawn to advance a state interest of compelling importance.”[14] Alternatively, “reasonable, nondiscriminatory restrictions” are typically upheld as furthering important state interests in avoiding voter confusion over overcrowded ballots and “protect[ing] the integrity of its political processes from frivolous or fraudulent candidacies.”[15] In general, courts uphold ballot access laws requiring a candidate to collect petition signatures equal to some modest percentage of the electorate,[16] prohibitions on multiparty nominations,[17] and sore loser statutes.[18] Conversely, courts have invalidated ballot laws demanding excessively high filing fees[19] or an unreasonably large number of petition signatures.[20]

States have considerable latitude in setting ballot qualifications for state and local elections, and specific requirements often vary with the office sought. In Florida, candidates for federal, state, and local office attain ballot access by filing qualifying documents, including a statement of financial interests, and paying filing and election assessment fees within statutorily-set qualifying periods.[21] Additionally, political parties often require that a candidate pay a party assessment fee.[22] Prospective candidates can skirt these qualifying fees by submitting a petition, signed by a number of voters equal to at least one percent of the total number of registered voters in the area represented by the office sought by the candidate, to the county supervisor of elections.[23] Following a petition’s submission, the supervisor verifies signatures and certifies the number of valid signatures.[24] If the supervisor determines that a local candidate has met the required number of signature petitions, he informs the candidate of his eligibility.[25] If the candidate is running for federal, statewide, or multicounty office, the supervisor must tender the certification to the Division of Elections, which determines if the petition has gathered the requisite signatures and, if so, notifies the candidate of his eligibility.[26]

Candidates or their opponents, along with representatives of political committees and other organizations circulating petitions, can challenge a petition’s verification in circuit court within ten days of certification. Contestants file the complaint either in the circuit court for the county where the petition was certified, or in Leon County if the petition was circulated in multiple counties. The circuit court can order a complete check of the petition to determine if signature requirements were met. If the outcome is unaffected following a court-ordered check, the contestant is responsible for costs associated with checking additional signatures.[27]


Part III. Election Administration

In the wake of the 2000 presidential election, Congress passed the Help America Vote Act (“HAVA”) to “establish minimum election administration standards for States and units of local government responsible for the administration of federal elections.”[28] Among its mandates, HAVA compels states to establish procedures for provisional voting; upgrade voting equipment and replace punch card and level voting systems; create electronic voter registration databases; and implement voter identification standards for first time voters.[29] The Act also created the Election Assistance Commission (“EAC”), which disperses federal funds to states and generally assists in furthering HAVA’s aims.[30]

HAVA has two enforcement mechanisms. First, the U.S. Attorney General’s office can bring civil actions against states and localities in federal district court to compel compliance with HAVA.[31] Second, while HAVA does not expressly allow private actions, the Act obliges states to formulate administrative complaint procedures for certain electoral grievances.[32] As part of HAVA’s mandates, states must make a final determination regarding a complaint within ninety days, or else undertake alternative dispute resolution to achieve resolution.[33]

While HAVA does not create an explicit private right of action, at least one federal appellate court has held that it grants a federal right to cast a provisional ballot that is enforceable against state officials through 42 U.S.C. § 1983.[34] On the other hand, the Supreme Court largely foreclosed the argument that HAVA’s voter registration provisions provide a private right of action in Brunner v. Ohio Republican Party.[35] The Brunner decision reflects the federal judiciary’s general hesitancy to recognize private rights of action conferred by HAVA.[36]

State election administration is shaped considerably by HAVA. In Florida, complaints alleging a HAVA violation by election officials are filed with the Department of State. If the complaint is legally sufficient, the department assigns a hearing officer to the matter who reviews both the complaint and corresponding response to determine if a HAVA violation has occurred. During review, the hearing officer can order parties and witnesses to testify or produce additional documents to aid in the review. If the hearing officer determines a HAVA violation is present, the state department will fashion an appropriate remedy. The department must make a final determination of the complaint within ninety days of its filing, or the complaint is forwarded to mediation. Unlike Colorado, Florida does not afford judicial review of administrative determinations of HAVA complaints.[37] However, the department may bring an action for equitable relief or pursue a writ of mandamus to enforce an order.[38]


Part IV. Redistricting

Actions challenging the constitutionality of federal and state redistricting plans[39] in federal court follow a distinct jurisdictional sequence in which they are initially decided by a specially convened three-judge district court and directly appealed to the Supreme Court.[40] Upon the filing of a constitutional challenge to a redistricting plan in federal court,[41] a district court judge initially determines, on the basis of the claim’s pleadings, whether the action necessitates the convening of a three-judge district court.[42] If the district judge determines a three-judge court is merited, the chief judge of the relevant circuit convenes a three-judge panel, which must include at least one circuit court judge as well as the district judge who made the preliminary ruling on the three-judge court’s necessity.[43] The three-judge district court practically functions like a typical district court, conducting a trial on the merits and issuing both factual findings and legal conclusions.[44] The Supreme Court has jurisdiction for appeals from the three-judge district court, and the Court cannot decline the appeal. The Court may summarily affirm or reverse, or engage in a full hearing on the merits of the case.[45]

In Florida, the legislature is constitutionally assigned responsibility for apportioning legislative districts following each census. If the legislature is unable to agree on a joint resolution for apportionment during either its regular session or a specially-convened apportionment session, the state attorney general will petition Florida’s supreme court to draw an apportionment map. The supreme court must finalize its plan within sixty days of the petition’s filing, and the resultant plan functions as the state’s apportionment map.

If the legislature does approve a joint resolution of apportionment, the attorney general will petition the Florida Supreme Court for a declaratory judgment on the plan’s constitutional validity within fifteen days of the legislature’s passage of an apportionment resolution. The court is required to make a determination on the plan’s validity within thirty days. If the court holds the apportionment plan is invalid, the governor must assemble the legislature for an extraordinary apportionment session within five days. The legislature will then attempt to craft a joint resolution of apportionment that adheres to the supreme court’s directives. Within fifteen days of the extraordinary legislative session’s culmination, the attorney general must request the supreme court to review the joint resolution. If the court again rules the apportionment plan invalid, or the legislature fails to adopt a plan during its special session, the court must create an apportionment plan within sixty days.[46]


Part V. Election Contests

An unsuccessful congressional candidate seeking to contest the election of a member of the House of Representatives must file notice of intent to contest with the Clerk of the House within thirty days after electoral results are announced. The Committee on House Administration reviews the contest action, and then issues a resolution with recommendations to the full House. Possible recommendations include dismissing the challenge, declaring a winner, or ordering a new election. The full House votes to adopt the committee’s resolution, and a majority vote is necessary. The House can order a recount if the contestant is able to demonstrate that he has exhausted available corrective options through the relevant state court system. Throughout the proceedings, the burden is on the contestant “to prove that the election results entitle him to the contestee’s seat.”[47]

In Florida, a losing candidate or qualified voter can contest the results of any state or local election, except legislative elections, in circuit court within ten days of the election’s certification. Applicable grounds for contesting an election include official misconduct, candidate ineligibility, receipt of illegal votes or rejection of legal votes, or corrupt conduct “procuring the successful candidate’s nomination or election.”[48] If the circuit court determines that the contestant is entitled to the office, the court may enter a judgment of ouster against the contestee that allows the contestant to assume office.[49] Legislative election contests are heard by either the house or senate, depending on the office involved, and conducted in accordance with legislative rules.[50]


Part VI. Campaign Finance

Actions contesting the constitutionality of federal campaign finance laws chart a distinct jurisdictional path in the federal court system. For constitutional challenges to the Bipartisan Campaign Reform Act (“BCRA”), a specially three-judge district court, consisting of at least one circuit court judge, initially hears the case and makes factual and legal findings.[51] Available remedies include declaratory and injunctive relief.[52] Litigants can appeal the district court’s decision to the Supreme Court within ten days, and the Court cannot decline the appeal.[53] Moreover, both the district court and the Supreme Court must “advance on the docket and [] expedite to the greatest extent the disposition of the action and appeal.”[54]

Challenges to FECA’s constitutionality similarly follow a special course through the federal courts.[55] A federal district court first reviews the challenge and certifies constitutional questions to the relevant circuit court. The en banc circuit court then rules on the constitutionality of the certified questions using a de novo standard of review.[56] As originally enacted, FECA obligated mandatory Supreme Court review of the circuit court decision, but Congress subsequently eliminated this requirement. Accordingly, the Court now has discretion to review the circuit court’s decision on certiorari.[57]

If a district court only certifies some of a plaintiff’s constitutional questions and dismisses others as frivolous, the plaintiff can appeal such dismissal to a three-judge circuit court panel. The three-judge panel then decides whether the district court abused its discretion in dismissing some of the plaintiff’s constitutional claims. An upshot of this process is the potential for parallel proceedings within the circuit, with the en banc court considering the certified constitutional questions and a smaller panel simultaneously reviewing the dismissal. [58] Like the special jurisdictional track for other kinds of election law cases, FECA’s unique procedure helps to expedite constitutional challenges to the Act. However, with a notable recent exception, litigation invoking this process is relatively infrequent.[59]

The Florida Elections Commission investigates and enforces Florida’s campaign finance statutes.[60] Part of the commission’s powers include the ability to assess civil penalties for violations of the law.[61] The commission also can bring actions for equitable relief, including injunctions and restraining orders, as well as orders for civil penalties in circuit court.[62] Upon a showing of probable cause, circuit courts may temporarily enjoin the issuance of election certificates to successful candidates alleged to have violated campaign finance laws.[63] Any action for a violation of the state’s campaign finance law must commence within two years of the date of the alleged violation.[64]



[1] The quintessential modern example of a court decision dictating a democratic outcome is Bush v. Gore, 531 U.S. 98 (2000), where the Supreme Court’s holding ultimately determined the 2000 presidential election.

[2] The federal constitution effectively divides regulatory authority over federal elections between the states and Congress. See U.S. Const. art. I, §4, cl. 1.

[3] 52 U.S.C. §20501(b) (“The purposes of this chapter are . . . to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office…”.)

[4] 52 U.S.C. § 20503.

[5] 52 U.S.C. §20510.

[6] 52 U.S.C. § 20511.

[7] 52 U.S.C. §20510. If within thirty days of a federal election, a person can immediately bring a civil action to enforce the NVRA’s mandates.

[8] 52 U.S.C. § 20510.

[9] Fla. Stat. §97.023.

[10] U.S. Const. art I., §4, cl. 1.

[11] Storer v. Brown, 415 U.S. 724, 730 (1974).

[12] Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

[13] Lubin v. Panish, 415 U.S. 709, 716 (1974).

[14] Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).

[15] Bullock v. Carter, 405 U.S. 134, 145 (1972).

[16] Jenness v. Fortson, 403 U.S. 431, 442 (1971).

[17] Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

[18] South Carolina Green Party v. South Carolina State Election Comm’n, 612 F.3d 752 (4th Cir. 2010).

[19] Bullock v. Carter, 405 U.S. 134 (1972).

[20] Norman v. Reed, 502 U.S. 279 (1992).

[21] Fla. Stat. §99-061.

[22] Fla. Stat. §99.092.

[23] Fla. Stat. §99.095.

[24] Fla. Stat. §99.095.

[25] Fla. Stat. §99.095

[26] Fla. Stat. §99.095.

[27] Fla. Stat. § 99.097.

[28] Help America Vote Act of 2002, PL 107-252 (2002).

[29] Leonard M. Shambon, Implementing the Help America Vote Act, 3 Election L.J. 424 (2004).

[30] Id. at 428-29.

[31] 52 U.S.C. §21111.

[32] 52 U.S.C. §21112.

[33] 52 U.S.C. §21112.

[34] Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir. 2004).

[35] 555 U.S. 5 (2008).

[36] See Daniel P. Tokaji, HAVA in Court: A Summary and Analysis of Litigation, 12 Election L.J. 203 (2013).

[37] Fla. Stat. § 97-028.

[38] Fla. Stat. §97-028.

[39] 28 U.S.C. § 2284 (“A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.”).

[40] Joshua A. Doulgas, The Procedure of Election Law in Federal Courts, 2011 Utah L. Rev. 433, 455 (2011).

[41] BCRA and VRA Section 5 challenges must be filed in the U.S. District Court for the District of Columbia.

[42] 28 U.S.C. § 2284(b)(1); Armour v. Ohio, 925 F.3d 987, 989 (6th Cir. 1991) (“[T]he sufficiency of the complaint for three-judge jurisdictional purposes must be determined by the claims stated in the complaint and not by the way the facts turn out.”).

[43] 28 U.S.C. § 2284.

[44] Douglas, supra note 40, at 455-56.

[45] Id.

[46] Fla. Const. art. III., §16.

[47] 2 U.S.C. §383 et seq.

[48] Fla. Stat. §102-168.

[49] Fla. Stat. §102-1682.

[50] Fla. Stat. §102-171.

[51] 52 U.S.C. § 30110 note.

[52] 52 U.S.C. §30110 note.

[53] 52 U.S.C. §30110 note.

[54] 52 U.S.C. §30110 note.

[55] 52 U.S.C. § 30110.

[56] Douglas, supra note 40, at 472.

[57] Id. at 469.

[58] Id. at 471-72.

[59] Id. at 471.

[60] Fla. Stat. §106.25

[61] Fla. Stat. §106.26.

[62] Fla. Stat. §106.27.

[63] Fla. Stat. §106.27.

[64] Fla. Stat. §106.28.