Do unopposed candidates appear on the ballot in a Florida municipal election?

Plain-English summary

The new Village of Estero was created by a 2014 special act, and its first seven-member council was to be elected on March 3, 2015. The special act set up a staggered scheme: the four candidates with the most votes would get four-year terms and the other three would get two-year terms. That created a problem for unopposed candidates. Under section 101.151(7), Florida Statutes, the names of unopposed candidates do not appear on the general election ballot, and each unopposed candidate is deemed to have voted only for himself. If that applied here, an unopposed Estero candidate would get exactly one vote and be stuck in the bottom three with a shorter initial term. The Lee County Supervisor of Elections, through her attorney, asked whether she could list the unopposed candidates on the ballot anyway.

The Attorney General's office answered that section 101.151(7) did not apply. Its terms reach only a "general election," which section 97.021 defines as the election held on the first Tuesday after the first Monday in November in even years for national, state, county, and district offices. The Estero council election, held in March and for a municipal office, is not a general election under that definition. Even though the special act directs that the election be conducted under the Florida Election Code, applying the Code's own definition means the no-unopposed-names rule does not cover this municipal election. So the Supervisor could include the unopposed candidates on the ballot. The office flagged that this is an informal opinion reflecting the writer's conclusions, not a formal Attorney General Opinion.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion covered

Supervisors of elections and municipal officials

The office advised that the rule in section 101.151(7) barring unopposed candidates from the ballot is tied to a "general election" as defined in section 97.021, and does not reach a municipal council election held outside that November even-year framework. For Estero's March 2015 initial council election, the Supervisor could list unopposed candidates so the staggered-term vote count would work as the special act intended.

Candidates

For an unopposed candidate in this kind of municipal election, the practical effect under the opinion was that their name could appear on the ballot and receive votes, rather than being treated as receiving a single self-vote, which mattered for the term-length ranking in Estero's first election.

Common questions

Q: Are unopposed candidates left off the ballot in every Florida election?
A: No. According to this opinion, the statute leaving unopposed candidates off the ballot, section 101.151(7), applies to a "general election" as defined in section 97.021, not to a municipal election held outside that November even-year framework.

Q: What counts as a "general election" in Florida?
A: Section 97.021 defines it as the election on the first Tuesday after the first Monday in November in even-numbered years for national, state, county, and district offices, plus constitutional amendments.

Q: Why did it matter whether the unopposed candidates were on the ballot?
A: The Village of Estero's first election gave four-year terms to the top four vote-getters and two-year terms to the rest. An unopposed candidate kept off the ballot would have received only a self-vote, which would have affected the term-length ranking.

Background and statutory framework

The Village of Estero was created by CS/CS/HB 1373, the 2014 special act codified as Chapter 2014-249, Laws of Florida, which provided for a seven-member council and a staggered-term initial election on March 3, 2015, "in accordance with the Florida Election Code." The Code's general ballot rules, in section 101.151(7), provide that unopposed candidates' names do not appear "on the general election ballot." The pivotal definition is in section 97.021: a "general election" is the November even-year election for national, state, county, and district offices. Reading the no-unopposed-names rule together with that definition, the office concluded the rule does not extend to Estero's March municipal election. The opinion also noted section 100.3605, under which the Florida Election Code governs municipal elections absent a conflicting charter or ordinance.

Citations and references

Statutes:

• § 101.151, Fla. Stat. (ballot specifications)
• § 97.021, Fla. Stat. (definitions)
• § 100.3605, Fla. Stat. (municipal elections)
• Chapter 2014-249, Laws of Florida (Village of Estero)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/elections-unopposed-candidates
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8077

Original opinion text

Mr. Thomas Hart

Knott - Ebelini - Hart

Post Office Box 2449

Fort Myers, Florida 33902-2449

Dear Mr. Hart:

You are the attorney for Ms. Sharon Harrington, Supervisor of Elections for Lee County, and, on her behalf, you have contacted this office for assistance in determining whether the Supervisor of Elections is authorized to include the names of unopposed candidates on the election ballot when Chapter 2014-249, Laws of Florida, provides that the election shall be conducted "in accordance with the Florida Election Code[.]" According to information you have provided to this office, you have contacted the Florida Department of State, Division of Elections, and were referred to this office for assistance.

While the Florida Attorney General's Office is limited to providing legal opinions on issues of state law[1] and cannot comment on or interpret municipal charter language, your question arises based on provisions of Chapter 2014-249, Laws of Florida, which creates the Village of Estero. Thus, as it requires comment on provisions of state law and in light of the Division of Elections referral, this office will provide assistance.

The Village of Estero was created by CS/CS/HB 1373, enacted during the 2014 Legislative Session and designated Chapter 2014-249, Laws of Florida. Chapter 2014-249, Laws of Florida, makes provision for the election of a seven member village council to exercise all powers of the Village of Estero.[2] Council members shall serve a four year term of office and are limited to serving two consecutive terms.[3]

The act makes specific provision for the initial election of the village council.[4] The initial election shall be called by the Supervisor of Elections of Lee County for March 3, 2015, for the election of seven village council members.[5] As provided in the act, "[t]he election shall be conducted by the Supervisor of Lee County Elections in accordance with the Florida Election Code[.]"[6]

Section 12(2)(d) of Chapter 2014-249, Laws of Florida, states that:

"The four council members receiving the highest number of votes shall be elected to 4-year terms and the other three council members shall be elected to initial 2-year terms. The council members elected to the 2-year terms may serve, if reelected, an additional 4-year term, which will constitute two terms for term limit purposes."

The Lee County Supervisor of Elections' questions arise in light of section 101.151(7), Florida Statutes, the statute which provides general specifications for ballots,[7] and which provides that:

"[T]he names of unopposed candidates shall not appear on the general election ballot. Each unopposed candidate shall be deemed to have voted for himself or herself."

There is concern that unopposed village council candidates, whose names do not appear on the ballot under this provision of the Election Code, will be limited to initial 2-year terms as, by law, they will only receive their own vote. Thus, the Supervisor asks whether section 101.151(7), Florida Statutes, precludes her from listing unopposed candidates on the ballot for electing the initial village council members.

Section 101.151(7), Florida Statutes, states that the names of unopposed candidates "shall not appear on the general election ballot." (e.s.) The definition of the term "General election," to be used in construing provisions of the Florida Election Code, is found in section 97.021, Florida Statutes:

"(15) 'General election' means an election held on the first Tuesday after the first Monday in November in the even-numbered years, for the purpose of filling national, state, county, and district offices and for voting on constitutional amendments not otherwise provided for by law."

While you note that the specific terms of this statute apply to "national, state, county, and district offices" and not to municipal elections, the Legislature has directed that the provisions of the Florida Election Code apply to elections held pursuant to Chapter 2014-249, Laws of Florida. Applying this statute as directed by the Legislature, the election of the initial village council of the Village of Estero, to be held on March 3, 2015, would not fall within the scope of this definition as a "general election." Thus, it does not appear that section 101.151(7), Florida Statutes (the provision of the Florida Election Code precluding the Supervisor of Elections from listing unopposed candidates on the general election ballot), would apply to the Village of Estero initial council election occurring on March 3, 2015.

I trust that this discussion will be helpful to you in advising your client, the Supervisor of Elections of Lee County. This informal Attorney General Opinion was prepared by the Department of Legal Affairs in an effort to assist you. The conclusions herein are those of the writer and do not constitute a formal Florida Attorney General Opinion.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[1] See s. 16.01(3), Fla. Stat., and Department of Legal Affairs Statement Concerning Attorney General Opinions (available at: www.myfloridalegal.com).

[2] Section 4(1) and (2), Ch. 2014-249, Laws of Fla.

[3] Section 4(2)(c), Ch. 2014-249, Laws of Fla

[4] See s. 12, Ch. 2014-249, Laws of Fla.

[5] Section 12(2)(a), Ch. 2014-249, Laws of Fla

[6] Section 12(2)(a), Ch. 2014-249, Laws of Fla.; and see s. 100.3605(1), Fla. Stat., providing that:

"The Florida Election Code, chapters 97-106, shall govern the conduct of a municipality's election in the absence of an applicable special act, charter, or ordinance provision. No charter or ordinance provision shall be adopted which conflicts with or exempts a municipality from any provision in the Florida Election Code that expressly applies to municipalities."

[7] Compare s. 105.051(1), Fla. Stat., which provides for the election or retention of unopposed candidates for judicial office or school board.