§ 101.5612 Testing of tabulating equipment.
Overview of Statute
(1) All electronic or electromechanical voting systems shall be thoroughly tested at the conclusion of maintenance and programming. Tests shall be sufficient to determine that the voting system is properly programmed, the election is correctly defined on the voting system, and all of the voting system input, output, and communication devices are working properly.
(2) On any day not more than 25 days before the commencement of early voting as provided in s. 101.657, the supervisor of elections shall have the automatic tabulating equipment publicly tested to ascertain that the equipment will correctly count the votes cast for all offices and on all measures. If the ballots to be used at the polling place on election day are not available at the time of the testing, the supervisor may conduct an additional test not more than 10 days before election day. Public notice of the time and place of the test shall be given at least 48 hours prior thereto by publication on the supervisor of elections’ website and once in one or more newspapers of general circulation in the county or, if there is no newspaper of general circulation in the county, by posting the notice in at least four conspicuous places in the county. The supervisor or the municipal elections official may, at the time of qualifying, give written notice of the time and location of the public preelection test to each candidate qualifying with that office and obtain a signed receipt that the notice has been given. The Department of State shall give written notice to each statewide candidate at the time of qualifying, or immediately at the end of qualifying, that the voting equipment will be tested and advise each candidate to contact the county supervisor of elections as to the time and location of the public preelection test. The supervisor or the municipal elections official shall, at least 30 days before the commencement of early voting as provided in s. 101.657, send written notice by certified mail to the county party chair of each political party and to all candidates for other than statewide office whose names appear on the ballot in the county and who did not receive written notification from the supervisor or municipal elections official at the time of qualifying, stating the time and location of the public preelection test of the automatic tabulating equipment. The canvassing board shall convene, and each member of the canvassing board shall certify to the accuracy of the test. For the test, the canvassing board may designate one member to represent it. The test shall be open to representatives of the political parties, the press, and the public. Each political party may designate one person with expertise in the computer field who shall be allowed in the central counting room when all tests are being conducted and when the official votes are being counted. The designee shall not interfere with the normal operation of the canvassing board.
(3) For electronic or electromechanical voting systems configured to tabulate vote-by-mail ballots at a central or regional site, the public testing shall be conducted by processing a preaudited group of ballots so produced as to record a predetermined number of valid votes for each candidate and on each measure and to include one or more ballots for each office which have activated voting positions in excess of the number allowed by law in order to test the ability of the automatic tabulating equipment to reject such votes. If any error is detected, the cause therefor shall be corrected and an errorless count shall be made before the automatic tabulating equipment is approved. The test shall be repeated and errorless results achieved immediately before the start of the official count of the ballots and again after the completion of the official count. The programs and ballots used for testing shall be sealed and retained under the custody of the county canvassing board.
- For electronic or electromechanical voting systems configured to include electronic or electromechanical tabulation devices which are distributed to the precincts, all or a sample of the devices to be used in the election shall be publicly tested. If a sample is to be tested, the sample shall consist of a random selection of at least 5 percent or 10 of the devices for an optical scan system, whichever is greater. For touchscreen systems used for voters having a disability, a sample of at least 2 percent of the devices must be tested. The test shall be conducted by processing a group of ballots, causing the device to output results for the ballots processed, and comparing the output of results to the results expected for the ballots processed. The group of ballots shall be produced so as to record a predetermined number of valid votes for each candidate and on each measure and to include for each office one or more ballots which have activated voting positions in excess of the number allowed by law in order to test the ability of the tabulating device to reject such votes.
- If any tested tabulating device is found to have an error in tabulation, it shall be deemed unsatisfactory. For each device deemed unsatisfactory, the canvassing board shall take steps to determine the cause of the error, shall attempt to identify and test other devices that could reasonably be expected to have the same error, and shall test a number of additional devices sufficient to determine that all devices are satisfactory. Upon deeming any device unsatisfactory, the canvassing board may require all devices to be tested or may declare that all devices are unsatisfactory.
- If the operation or output of any tested tabulation device, such as spelling or the order of candidates on a report, is in error, such problem shall be reported to the canvassing board. The canvassing board shall then determine if the reported problem warrants its deeming the device unsatisfactory.
(b) At the completion of testing under this subsection, the canvassing board or its representative, the representatives of the political parties, and the candidates or their representatives who attended the test shall witness the resetting of each device that passed to a preelection state of readiness and the sealing of each device that passed in such a manner as to secure its state of readiness until the opening of the polls.
(c) The canvassing board or its representative shall execute a written statement setting forth the tabulation devices tested, the results of the testing, the protective counter numbers, if applicable, of each tabulation device, the number of the seal securing each tabulation device at the conclusion of testing, any problems reported to the board as a result of the testing, and whether each device tested is satisfactory or unsatisfactory.
(d) Any tabulating device deemed unsatisfactory shall be recoded, repaired, or replaced and shall be made available for retesting. Such device must be determined by the canvassing board or its representative to be satisfactory before it may be used in any election. The canvassing board or its representative shall announce at the close of the first testing the date, place, and time that any unsatisfactory device will be retested or may, at the option of the board, notify by telephone each person who was present at the first testing as to the date, place, and time that the retesting will occur.
(e) Records must be kept of all preelection testing of electronic or electromechanical tabulation devices used in any election. Such records are to be present and available for inspection and reference during public preelection testing by any person in attendance during such testing. The need of the canvassing board for access to such records during the testing shall take precedence over the need of other attendees to access such records so that the work of the canvassing board will not be delayed or hindered. Records of testing must include, for each device, the name of each person who tested the device and the date, place, time, and results of each test. Records of testing shall be retained as part of the official records of the election in which any device was used.
(5) Any tests involving marksense ballots pursuant to this section shall employ test ballots created by the supervisor of elections using actual ballots that have been printed for the election. If ballot-on-demand ballots will be used in the election, the supervisor shall also create test ballots using the ballot-on-demand technology that will be used to produce ballots in the election, using the same paper stock as will be used for ballots in the election.
s. 12, ch. 73-156; s. 21, ch. 77-175; s. 39, ch. 79-400; s. 2, ch. 81-29; s. 24, ch. 83-217; s. 15, ch. 84-302; s. 582, ch. 95-147; s. 21, ch. 2001-40; s. 13, ch. 2002-17; s. 11, ch. 2004-252; s. 37, ch. 2005-277; s. 7, ch. 2007-30; s. 6, ch. 2010-167; s. 34, ch. 2011-40; s. 11, ch. 2016-37; s. 2, ch. 2020-109.
1. Definition for Department
The Department of State. Fla. Stat. § 97.021(7).
2. Definition for Supervisor
The supervisor of elections. Fla. Stat. § 97.021(36).
3. Definition for Early Voting
Casting a ballot prior to election day at a location designated by the supervisor of elections and depositing the voted ballot in the tabulation system. Fla. Stat. § 97.021(9).
4. Definition for Polling Place
The building which contains the polling room where ballots are cast. Fla. Stat. § 97.021(27).
5. Definition for Voting System
6. Definition for Voting Equipment
As used in ss. 101.292-101.295, “voting equipment” means electronic or electromechanical voting systems, voting devices, and automatic tabulating equipment as defined in s. 101.5603, as well as materials, parts, or other equipment necessary for the operation and maintenance of such systems and devices, the individual or combined retail value of which is in excess of the threshold amount for CATEGORY TWO purchases provided in s. 287.017. Fla. Stat. § 101.292(2).
7. Definition for Newspaper of General Circulation
A newspaper printed in the language most commonly spoken in the area within which it circulates and which is readily available for purchase by all inhabitants in the area of circulation, but does not include a newspaper intended primarily for members of a particular professional or occupational group, a newspaper the primary function of which is to carry legal notices, or a newspaper that is given away primarily to distribute advertising. Fla. Stat. § 97.021(20).
8. Definition for Ballot
As used in the Electronic Voting Systems Act, ballot means the card, tape, or other vehicle upon which the elector’s choices are recorded. Fla. Stat. § 101.5603(2).
9. Definition for Person
An individual or a corporation, association, firm, partnership, joint venture, joint stock company, club, organization, estate, trust, business trust, syndicate, or other combination of individuals having collective capacity. The term includes a political party, affiliated party committee, or political committee. Fla. Stat. § 106.011(14).
10. Definition for Election
Any primary election, special primary election, special election, general election, or presidential preference primary election. Fla. Stat. § 97.021(12).
11. Definition for Candidate
Any person to whom any one or more of the following applies:
Case Name: Wexler v. Lepore
Citation: 878 So.2d 1276
Case Summary: Wexler v. Lepore held that the Secretary of State had statutory authority under the Electronic Voting Rights Act to handle how recounts would be conducted. As such, Weller's suit was dismissed.
Case Name: Diaz v. Cobb
Citation: 541 F.Supp.2d 1319
Federal District Court: Southern District of Florida
Case Summary: Diaz v. Cobb held that Florida's 29 day deadline for submitting a completed voter registration form was constitutionally permissible because it furthered the state's interest in holding orderly elections.
Regulations & Guidance
Fla. Jur. 2d Elections s 147, Generally
Fla. Jur. 2d Elections s 181, Recounts