Florida Department of State Dr. Gisela Salas Ken Detzner Director, Division of Elections Secretary of State Presented by Gary J. Holland, Assistant General Counsel, Department of State Phone: 850-245-6536; email: Gary.Holland@dos.myflorida.com 1 June 20, 2012
ELECTION LAW POTPOURRI FOR COUNTY ATTORNEYS 2
CAVEAT for 2011 Law Changes: For the 5 preclearance (s. 4(f)(4)/Voting Rights Act) counties ( Collier, Hardee, Hendry, Hillsborough, & Monroe), the following sections of law as amended by chapter 2011-40, Laws of Florida are not enforceable until precleared by federal court: Third-party voter registration organizations (s. 97.0575) Out-of-county address changes at polling place (s. 101.045) Early Voting (s. 101.657) 3
Preemption re: Election Code (s. 97.0115 – created in 2010) All matters set forth in chapters 97-105 are preempted to the state, except as otherwise specifically authorized by state or federal law. The conduct of municipal elections shall be governed by s. 100.3605. 4
2012 Legislative Changes Freeholder elections – s. 100.241: sworn affidavit of ownership no longer necessary by freeholder; merely a declaration verified IAW s. 92.525, Fla. Stat. ( e.g. , sign “penalties of perjury” statement) Effective date: July 1, 2012 5
Campaign Finance (Chapter 106) 6
Expenditure of County Funds (s. 106.113) • A local government (e.g., county) may not expend or authorize the expenditure of public funds for a political advertisement or electioneering communication concerning an issue. • OK if ad is limited to factual information. • OK for county commissioner to express his/her opinion on any issue at any time. 7
Expenditure of County Funds (s. 106.113) – cont’d • “Electioneering communications” by definition in Ch. 106 only concern candidates; therefore, no such thing as an electioneering communication about an issue. See Division of Election Opinions 10-06 and 10-07; plus, App. A to presentation. • No expenditures permitted for “political advertisements” on issues. • Key is that “express advocacy” (vote for, vote against, support, oppose, defeat, etc .) cannot exist regarding an issue in a “communications media” paid by county funds . 8
Independent Expenditure (IE) • Definition: IE = Express advocacy for/against candidate/issue not controlled or coordinated with candidate/committee. • Citizens United v. FEC – US Supreme Court: OK to limit contributions to candidates by entities (corps & labor unions), but cannot limit independent expenditures; however, disclosure and disclaimer requirements can be imposed. • Result: Super PACs (solely deals with IEs) in federal campaigns. No limits on contributions to Super PACs. 9
Effect of Citizens United on Florida law: • No real effect since FL has no spending limits on IEs. – BUT, s. 106.071, FS: If “person” makes IE ≥ $5000, must file reports as if was a political committee. Disclaimers are required no matter the $ amount. • If “person” = individual; no spending limit on IEs, but if ≥ $5000 must file reports as if PC. • If “person” = person other than an individual (e.g., corp./union); no spending limit on IEs, but if spend > $500 in calendar year to expressly advocate in Florida, will become a political committee and must register as a political committee and report as such. Bottom-line: No Super PACs in Florida for non-federal campaigns 10
Political Committees (PCs), Committee of Continuous Existence (CCEs) & Electioneering Communications Organizations (ECOs) • These are regulated political organizations besides political parties and affiliated party committees • See App B for comparison of PCs, CCEs, and ECOs. • Handbooks on each type of organization are at Division of Elections webpage: http://election.myflorida.com/publications/ publications.shtml 11
Electioneering Communications (s. 106.011(18), FS – Definition: = Any communication that is publicly distributed by TV station, radio station, cable TV system, satellite system, newspaper, magazine, direct mail, or telephone that : 1. Refers to or depicts a clearly identifiable candidate without expressly advocating the candidate’s election or defeat, but that is susceptible of no reasonable interpretation other than an appeal to vote for or vote against a candidate; 12
Electioneering Communications – Definition (cont’d): 2. Is made w/in 30 days before a primary or special primary election or 60 days before any other election for the office sought by the candidate; and 3. Is targeted to the relevant electorate in the geographical area which the candidate would represent if elected. KEY : Deals only with candidates, must be in specified media, be done at specified times, and targeted to constituency of the office. 13
Electioneering Communications Organizations (s. 106.011(19)) = Any group other than a political party, affiliated party committee, political committee (PC), or committee of continuous existence (CCE), whose election-related activities are limited to: • Making expenditures for electioneering communications or • Accepting contributions for purposes of making electioneering communications; and • Whose activities would not otherwise make the group register as a political party, PC, or CCE. 14
Electioneering Communications Organizations (s. 106.03) Criteria for filing statement of organization: Filing of Statement of Organization dependent only on expenditures, not receipt of contributions; plus, depends on the timing of the expenditure. ( See next slide) 15
Electioneering Communications Organizations (s. 106.03) cont’d Group must file as an ECO : 1.If a group makes expenditures for EC > $5000 during the “30/60-day” window, it must register as an ECO within 24 hours of making such expenditures; or 2.If a group makes expenditures for EC > $5000 before the “30/60-day” window, it must register as an ECO within 24 hours after the beginning of the “30/60-day” window . 16
Electioneering Communications Organizations (s. 106.03) cont’d Example #1: A group spends $10,000 for a TV advertisement 15 days before an election that presents facts to portray why a referendum should be defeated without expressly advocating that it should be defeated. Does this trigger an ECO registration requirement? 17
Electioneering Communications Organizations (s. 106.03) cont’d Example #1: A group spends $10,000 for a TV advertisement 15 days before an election that presents facts to portray why a referendum should be defeated without expressly advocating that it should be defeated. Does this trigger an ECO registration requirement? Answer: No. Electioneering communications concern only candidates, not issues. 18
Electioneering Communications Organizations (s. 106.03) cont’d Example #2: A group spends $8,000 for production of a TV advertisement 45 days before the primary election praising the virtues of a candidate without expressly advocating that he should be elected. Does this trigger an ECO registration requirement? 19
Electioneering Communications Organizations (s. 106.03) cont’d Example #2: A group spends $8,000 for production of a TV advertisement 45 days before the primary election praising the virtues of a candidate without expressly advocating that he should be elected. Does this trigger an ECO registration requirement? Answer: Depends when TV ad runs; If ad runs within 30 day period before primary election, then yes – the group must register as ECO within 24 hours after the 30th day before the primary election. 20
Electioneering Communications Organizations (s. 106.03) cont’d Example #3: A group spends $3,500 for a direct mail campaign 20 days before the general election detailing the vices of a candidate without expressly advocating her defeat. Does this trigger an ECO registration requirement? 21
Electioneering Communications Organizations (s. 106.03) cont’d Example #3: A group spends $3,500 for a direct mail campaign 20 days before the general election detailing the vices of a candidate without expressly advocating her defeat. Does this trigger an ECO registration requirement? Answer: No; to trigger an ECO registration, the expenditures must exceed $5,000. 22
The County Canvassing Board 23
Canvassing Board Composition (s. 102.141) Three statutory members: 1. Supervisor of Elections; 2. A county court judge, who serves as chair of canvassing board; and 3. Chair of board of county commissioners. 24
Canvassing Board Member Disqualifications (s. 102.141) Three statutory grounds: 1. Unable to serve; 2. Being a candidate who has opposition in an election being canvassed; or 3. Being an active participant in the campaign or candidacy of any candidate who has opposition in the election being canvassed. 25
Canvassing Board Member Disqualifications (s. 102.141) What does “active participant in the campaign or candidacy of any candidate” mean? • Essentially: Any action undertaken to intentionally demonstrate or generate public support of a candidate merely beyond making a campaign contribution. See App C - Division of Elections Opinions DE 08-10 and DE 09-07 26
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