Esteva v. Hindman

299 So. 2d 633
CourtDistrict Court of Appeal of Florida
DecidedJune 11, 1974
DocketU-260
StatusPublished
Cited by3 cases

This text of 299 So. 2d 633 (Esteva v. Hindman) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Esteva v. Hindman, 299 So. 2d 633 (Fla. Ct. App. 1974).

Opinion

299 So.2d 633 (1974)

Henry ESTEVA, Appellant,
v.
Tosie HINDMAN et al., Appellees.

No. U-260.

District Court of Appeal of Florida, First District.

June 11, 1974.
Rehearing Denied September 19, 1974.

Leo Foster, Tallahassee, and Henry Esteva, St. Petersburg, for appellant.

*634 Joseph C. Jacobs of Ervin, Varn, Jacobs & Odom, Tallahassee, and J. Michael Hayes of Gregory, Cours, Paniello & Johnson, Tampa, for appellees.

PER CURIAM.

This is an election contest initiated by appellant who was declared the unsuccessful candidate for the office of Judge of the Second District Court of Appeal of Florida. For the reasons hereinafter set forth, we are compelled to reverse the final summary judgment rendered by the trial court which dismissed the action initiated by appellant with prejudice.

Appellant Henry Esteva received a majority of 404 machine votes over his opponent, appellee Boardman, in the election for the office of Judge of the Second District Court of Appeal. When the 3,389 absentee ballots were counted, Boardman had edged ahead by 249 votes. No contention has been made as to the correctness of the votes cast via the voting machines, and this entire controversy involves the validity of the absentee ballots cast in this election.

The trial court found that of the some 1450 flaws and defects which the appellant has detected, only 88 set forth "a real basis to conclude that the ballots so cast may have been illegal." These 88 fall into four categories; to wit: the application for an absentee ballot was not signed by the applicant; the return envelope was not signed across the flap; the official title of the witness was not indicated; and the names of the electors were not on record. We could certainly agree that such ballots were illegal as being in flagrant violation of the statutes governing absentee voting. F.S. §§ 101.62 through 101.691, F.S.A. Our point of departure from the rationale of the trial court comes with the holding therein that failure to indicate the reason for voting absentee on the application form and the return envelope and failure to preserve the return envelopes were not deemed fatal to the validity and purity of the ballots cast.

F.S. § 101.62, F.S.A., sets forth the form of an application blank for an absentee ballot. Said form sets out the five legal reasons for voting absentee and the applicant is to check one of these as his reason for so voting. Unless the voter qualifies to vote by absentee voting by indicating in writing on the application for the ballot at least one of the five reasons for such absentee voting, the ballot becomes a nullity. F.S. § 101.63, F.S.A., provides that upon receipt of the application for absentee ballot, filled out and signed, it shall be filed and a list or card file kept of applicants to whom a ballot has been sent. F.S. § 101.64, F.S.A., provides for the manner and procedure of preparing and delivering the ballots to persons on the list provided for in § 101.63 and provides that an outer return envelope shall be included bearing a certificate. This certificate is in essentially the same form as the application blank, requiring the elector to again state his reason, by checking one of the five printed statutory grounds, for voting absentee.

In order to qualify as an absentee voter, it is mandatory that the elector indicate in writing his reason for voting absentee. Parra v. Harvey, 89 So.2d 870 (Fla. 1956).

The trial judge found that in his opinion there were 88 illegal votes cast. In Paragraph 2(d) the trial judge also found 95 ballots in which the absentee voters had failed to follow the statute by checking the appropriate reason for voting absentee, but the trial judge said that he determined such failures to follow the statute were not fatal to the validity of the ballots so cast. This is contradictory to all the Supreme Court of Florida decisions rendered, we believe, since 1955, as will be more fully discussed hereinbelow.

In Parra v. Harvey, supra, the Supreme Court of Florida pointed out that "On four applications no witnesses signed while 14 were signed by only one witness. Clearly these applications were not complete and could have formed no foundations for valid ballots."

*635 In the pleadings and evidence before the trial judge, there were more than enough illegal ballots, when gauged by the law as set forth in Parra v. Harvey, supra, that would affect and in fact change the results of the election. There must have been some valid reason for the Legislature enacting the provisions of the statutes granting authority to vote absentee and setting the guidelines which must be followed in order to vote validly absentee, and we think that the appellant has demonstrated enough illegal ballots which would turn the election results into his favor.

The certificate mandated by F.S. § 101.64, F.S.A., further requires the signature of the elector as well as the signature of an attesting witness, with his official title and address. A postal officer is required to apply his station cancellation stamp to this return envelope. § 101.64 also provides that "the absent elector and the attesting witness shall execute the said form on the envelope." F.S. § 101.65, F.S.A., sets forth the substantial form of instructions to be sent with each absentee ballot. Said form states: "Fill out the `Elector's Certificate' on the back of the envelope, sign... ." F.S. § 101.66, F.S.A., provides that the absent elector shall, in secret, mark his ballot, follow the instructions enclosed with his ballot, etc. F.S. § 101.67, F.S.A., provides, inter alia, that the supervisor shall deliver the envelopes, along with his list kept regarding said ballots, to the canvassing board and again reiterates the requirement that the application for absentee ballot be properly executed. F.S. § 101.68, F.S.A., provides for the method of canvassing absentee electors' ballots. The canvassing board is to compare the ballots presented to it with the list or card file required by § 101.63 and is to compare the information on the back of the envelope to see that the elector is duly registered, has not already voted, and to determine the legality of the absent elector's ballot. If it is determined that any vote is illegal, the face of the return envelope is to be so marked. Such envelopes and the ballot contained therein are to be preserved.

We have set forth the relevant portions of these statutes to illustrate that the Legislature has carefully promulgated specific procedures and safeguards to insure the integrity and purity of the absentee ballot. It cannot be doubted that such ballots, as compared with those votes registered on a voting machine, are susceptible to widespread abuse. For this reason, our Legislature has prescribed in detail the procedure which must be followed by the voter and the procedure to be followed by election officials in receiving, counting and preserving the ballot after it has been delivered.

Absentee voting was unknown to the common law. It is a privilege conferred by statute. Being in derogation of the common law, statutes which authorize absentee voting should be cautiously and specifically followed. Much attention must be given by the voter, as well as by those charged with the responsibility of receiving and counting votes, to a ballot cast by a voter, not personally, but by the substituted manner permitted by statute. The Florida Courts have long maintained and restated the principle that strict compliance with the statutory requirements for absentee voting is mandatory. State ex rel. Whitley v. Rinehart, 140 Fla. 645, 192 So. 819 (1940); Frink v.

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Related

McLean v. Bellamy
437 So. 2d 737 (District Court of Appeal of Florida, 1983)
Boardman v. Esteva
323 So. 2d 259 (Supreme Court of Florida, 1975)
Pamies v. Thomas
305 So. 2d 57 (District Court of Appeal of Florida, 1974)

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