In Florida, canvassing and certification is a ministerial duty. Nonetheless, should election officials at the county or state level in Florida refuse to certify, create undue delays, or attempt to manipulate the canvass and certification process, there are mechanisms in place that help protect the integrity of the process and ensure certification will happen in a timely manner and reflect the will of the voters. The Secretary of State sets the foundation by issuing guidance for the canvassing and certification processes. There are also clear limits on the powers of the County Canvassing Board and state Elections Canvassing Commission. Should it be needed, both the Secretary of State and the Governor can sue for compliance — seeking a writ of mandamus or other injunctive relief. If things have to go a step further, the Governor also has the power to remove election officials who commit malfeasance or fail to do their duty. Finally, in extreme cases there can be criminal consequences for bad behaviors by election officials. But rising above all that, protections are inherently built into the processes as a result of deadlines that are methodically spread across the whole process — from pre-processing to certification — that generally help to prevent bottlenecks and logjams from delaying canvass and certification.
The Secretary of State is responsible for providing “written direction and opinions” pertaining to Florida election law and relevant rules adopted by the Department of State, for the benefit of Supervisors of Elections in relation to their official duties. Fla. Stat. § 97.012(16). The guidance is distributed through the Division of Elections and ranges from advisory opinions, to mandatory online training for signature matching, to polling place manuals. These materials provide a foundation and common understanding of laws and procedures to ensure that County Canvassing Boards and all other election officials are aware of and equipped to follow the law and to certify in a timely and accurate manner.
Both County and State Canvassing Boards are limited in what they can review, and they are prohibited from inserting their own will over that of the voters during the canvassing and certification processes. County Canvassing Boards must use the returns and certificates that have been signed and filed by the Inspectors at the precinct with the Supervisor of Elections. Fla. Stat. § 102.141(3). They are explicitly prohibited from changing “the number of votes cast for a candidate, nominee, constitutional amendment, or other measure submitted to the electorate of the county, respectively, in any polling place, as shown by the returns.” Fla. Stat. § 102.141(3). If a discrepancy is discovered “between the returns and the tabulation of the ballots cast, the tabulation of the ballots cast shall be presumed correct and such votes shall be canvassed accordingly.” Fla. Stat. § 102.141(3).
The Elections Canvassing Commission is similarly limited in what evidence it can use “in determining the true vote.” Fla. Stat. § 102.131. By law, the Elections Canvassing Commission does “not have authority to look beyond the county returns” when canvassing. Fla. Stat. § 102.131.
If a County Canvassing Board misses the deadline to submit official returns to the Department of State, the Department of State will simply use the ballot returns on file from before the deadline (e.g., the “first set of unofficial returns”); however the mere objection could be used to place a cloud over the election results. Fla. Stat. § 102.112(3). As there are nine days from the deadline for the first set of unofficial returns to be submitted to the Department of State (Saturday, November 9, 2024) and the deadline for submitting official returns (Monday, November 18, 2024), the “fallback” onto the first set of unofficial returns should make it a pretty safe assumption that someone, somewhere, will have taken action to compel compliance with the first deadline.
If an emergency prevents a County Canvassing Board from submitting returns to the Elections Canvassing Commission by a set deadline, the Elections Canvassing Commission has the discretion to “determine the deadline by which the returns must be received.” Fla. Stat. § 102.112(4).
Should it be needed, the Governor can remove bad actors from county or state election roles. The Governor can issue an executive order to suspend any state officer not subject to impeachment or any county officer for “malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension without notice or a hearing. While the suspended officer may at any time before removal be reinstated by the governor”; however, it only takes one ground supported by “alleged facts sufficient to constitute the grounds or cause for suspension.” [1] Fla. Const. Art. IV, § 7(a); Jackson v. Desantis, 268 So. 3d 662, 663 (Fla. 2019).
Both the Governor and Secretary of State have the power to sue election officials should they fail to follow the law or perform a required duty under the election code. A writ of mandamus or other injunctive relief may be available in these cases. Additionally, in some circumstances a private citizen who is a voter in Florida may also sue for a writ of mandamus.
The Governor can initiate lawsuits against “any executive or administrative state, county or municipal officer to enforce compliance with any duty or restrain any unauthorized act.” Fla. Const. Art. IV, § 1(b).