By: Matthew Catron

Again…all eyes are on Florida, this time after the 2018 Midterm Election. While Broward County and the statewide recount seem to be caught in the spotlight, another controversy is brewing in the Florida Panhandle. In this case, the chief election official of Bay County allowed approximately 150 voters to cast their ballots via fax or email.

Hurricane Michael hit the Florida Panhandle in mid-October and had a lasting effect on the infrastructure and residents of several coastal counties. As a result of the devastation, Gov. Rick Scott issued an executive order extending the deadline for early voting and increasing the number of early voting locations in eight hurricane-hit counties. Gov. Scott issued this executive order pursuant to the governor’s power under the Florida Elections Emergency Act. However, Bay County Supervisor of Elections Mark Andersen went beyond the governor’s executive order and accepted roughly 150 ballots via fax or email. These electronically transmitted ballots were cast by voters who were displaced by Hurricane Michael.

Although Anderson’s actions may seem admirable, Florida law does not provide this option for voters displaced by a disaster. Under the Elections Emergency Act, the governor can implement several different remedies to facilitate safe and accessible voting: delaying the election (Fla. Stat. § 101.733 (2018)), moving polling places (Fla. Stat. § 101.74 (2018)), or increasing the number of polling places (Fla. Stat. § 101.74 (2018)). However, authorizing voters to cast votes by fax or email is not a remedy available to the governor. Not all Florida voters are barred from voting electronically. In fact, military and overseas voters can choose how they would like their ballots transmitted (Fla. Stat. § 101.62(4)(c) (2018)). In an emergency, the Election Canvassing Commission can adopt special procedures to facilitate absentee voting by military and overseas voters (Fla. Stat. § 101.698 (2018)). This means that an emergency may prompt the Election Canvassing Commission to facilitate voting by fax or email for military and overseas voters. Thus, it would appear that Florida law treats different classes of voters differently in emergency situations.

Indeed, although Florida does not allow domestic voters to cast ballots electronically, other states have been more open to the possibility. At least two other states allow voters to transmit their ballots via fax or email in emergency situations. Louisiana allows for the electronic transmission of ballots by voters who are required to be out-of-state due to a declared emergency (La. Stat. Ann. 18:1308(j)(ii) (2018)). In Mississippi, the registrar is authorized to receive absentee ballots via fax or email (Miss. Code Ann. § 23-15-699 (3)(a) (2018)). However, whether or not to accept electronic transmission of absentee ballots is up to the registrar’s discretion. These may be narrow exceptions, but electronic voting—particularly in the context of voters displaced in emergency situations—has been gaining momentum in recent years. During the 2018 Midterms, approximately 150 West Virginian voters cast their ballots through a blockchain-based voting app. Voters in 24 counties were given the opportunity to use the app in 24 counties as part of a pilot program for the new technology. However, this technology has not been implemented in a statewide scale.

Currently, 150 voters in Bay County find themselves in a very unfortunate situation. Although Florida law allows the governor to better facilitate voting during an emergency, Florida law does not appear to allow electronic submission for domestic voters. This event highlights the need for new legislation regarding the electronic submission of ballots during an emergency. Perhaps states should also explore technology like blockchain-based voting apps to alleviate the disruption emergencies create. Electronic voting may not yet be needed for most voters, but the promise technology offers in managing emergency election administration grows more apparent after each election cycle—and each emergency event.

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