In Florida, there are primarily three situations when provisional ballots are used: if a voter’s eligibility is in question, if polling place hours are extended, and if voter identification is in question in relation to vote-by-mail ballots. These ballots are never counted at polling locations, but rather are transported to the Supervisor of Elections, and ultimately to the County Canvassing Board for canvassing.
Florida law defines a “provisional ballot” as “a conditional ballot, the validity of which is determined by the canvassing board.” Fla. Stat. § 97.021(32). In practice, that means provisional ballots are likely to be used in three categories of situations. See Fla. Stat. § 102.141(2)(a).
The first category is where there is uncertainty about an individual’s eligibility to vote. For example, a situation where a voter’s eligibility cannot be determined, or where some piece of information popped up during regular voter roll maintenance that raised a flag as to that individual’s eligibility to vote and a final determination has not been made, would fall into this category. Fla. Stat. § 101.048(1); see also §§ 98.075, 102.141(2)(a).
The second situation occurs whenever there is a court ordered extension of voting hours. In that case, any ballot cast after normal hours is done so using a provisional ballot. Fla. Stat. § 101.049(1). Extra care is taken to ensure that all of these “late-voted provisional ballots” are “not commingled with other ballots.” Fla. Stat. § 101.049(3).
The third situation when a provisional ballot may be used is if an individual registers by mail and their identity cannot be automatically confirmed via state records and they do not submit the required identification with their ballot. Fla. Stat. § 102.141(2)(a); see also §§ 101.6925, 101.6921(1), 97.0535(1). In that case, their “ballot must be treated as a provisional ballot.” Fla. Stat. § 101.6925(3). If the required identification is included (or the voter has indicated that they are exempt from the identification requirements), the Supervisor of Elections will make a note in the voter’s registration record and proceed to canvass the vote-by-mail ballot like any other vote-by-mail ballot. Fla. Stat. § 101.6925(2).
An individual casting a provisional ballot must complete the “Provisional Ballot Voter’s Certificate and Affirmation” form in front of a poll worker. That witnessing poll worker must sign that form as well, and also include the date of the election, the precinct or ballot style, and the specific reason(s) the voter is casting a provisional ballot. “Polling Place Procedures Manual” at 25.
Once the voter has completed the provisional ballot, they must place the voted ballot into the secrecy envelope. The secrecy envelope is then placed in a provisional ballot envelope. Finally, the voter seals the provisional ballot envelope. [1] “Polling Place Procedures Manual” at 25. The poll worker then provides the voter with a “notice of rights” before the sealed provisional envelope is placed in the container specifically for provisional ballots. “Polling Place Procedures Manual” at 25.
Provisional ballots are never tabulated at the polls, rather they remain sealed in their envelopes — regardless of the reason that the ballots are considered “provisional” — even ballots that otherwise would be presumed valid and cast “normally” except for the fact that they were cast during court-ordered extended polling hours. “Polling Place Procedures Manual” at 25. Even once these ballots are deemed “valid” the County Canvassing Board must keep and count these ballots separately. Fla. Stat. § 101.049(2).
After polls close, the Election Board at the polling place reports the number of provisional ballots issued, and then the ballots are transported to the Supervisor of Elections. This process point is open to the public. Fla. Stat. § 101.5614(1).
Individuals casting a provisional ballot have until 5 p.m. on the second day following the election to “present further written evidence … that supports his or her eligibility to vote to the Supervisor of Elections…” “Polling Place Procedures Manual” at 24.
The meetings at which County Canvassing Boards determine the validity of provisional ballots are open to the public. Fla. Stat. § 102.141(2)(a). However, not all information involved in making the determination of whether a provisional ballot is eligible to be counted is publicly shared. See Fla. Stat. § 97.0585. For ballots that are deemed eligible, they are then counted using normal tabulation procedures and added to the vote total when they are canvassed. It varies by county when this will happen, but County Canvassing Boards are required to publish notice of the meeting at least 48 hours in advance. Fla. Stat. § 102.141(2)(b).
The County Canvassing Board is responsible for determining the validity of all provisional ballots. Fla. Stat. § 101.048(2)(a). To do this they consider whether the individual was registered to vote at the precinct where they cast a ballot, whether they were entitled to vote in the election that they cast a provisional ballot in, and whether they had already cast a ballot in the election. Fla. Stat. § 101.048(2)(a). To reach a determination, the County Canvassing Board reviews information provided in the Provisional Ballot Voter’s Certificate and Affirmation form and any written evidence submitted to the Supervisor of Elections by the person that cast the provisional ballot. Such information must be submitted no later than 5 p.m. on the second day after the election. They also examine any information provided in a cure affidavit, including identification, if submitted. If there is a challenge in the case of a provisional ballot, the County Canvassing Board also reviews any evidence presented by the challenger. Fla. Stat. § 101.048(2)(a).
If the County Canvassing Board determines the person was registered and entitled to vote at the polling place where they cast their vote and that they voted at the correct location, then the County Canvassing Board must also confirm that the signature on the Provisional Ballot Voter’s Certificate and Affirmation form matches the signature on the voter’s registration (or the precinct register). Fla. Stat. § 101.048(2)(b). To find that the signature on the Provisional Ballot Voter’s Certificate and Affirmation does not match the signature on the voter’s registration record, a majority of the County Canvassing Board must vote that they believe, “beyond a reasonable doubt,” that the signatures do not match. Fla. Stat. § 101.048(2)(b)(2). If the County Canvassing Board can confirm all of this, then the provisional ballot will be counted. Fla. Stat. § 101.048(2)(b)(1).