Can a Florida water control district let its landowners vote by mail (absentee ballot) for the three landowner-elected seats on its Board of Supervisors at the annual landowners' meeting?
Subject
Whether the Central County Water Control District (a Hendry County water control district established by special act and governed under Chapter 298, Florida Statutes) may permit landowners to use absentee ballots for the three landowner-elected seats on its five-member Board of Supervisors at the annual landowners' meetings.
Currency note
This opinion was issued in 2019. 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 about district elections.
Plain-English summary
Water control districts in Florida operate under Chapter 298. They have a Board of Supervisors that handles drainage, flood control, and other water-management functions. The board members responsible to landowners (as opposed to qualified electors generally) are elected on a "one-acre, one-vote" basis at an annual landowners' meeting.
The Central County Water Control District, in Hendry County, had a problem. More than 50% of its landowners were absentee, meaning they did not live on or near the district. They had been voting by mail. But the District's counsel could find no statutory or charter authorization for that practice and asked the AG.
AG Moody's answer was no, the District cannot allow absentee ballots, for two reasons:
First, § 298.11(2) defines how the vote happens. "[E]ach owner shall be entitled to one vote in person or by proxy in writing duly signed, for every acre of assessable land owned by him or her in the district." There is no third option. Either you show up in person, or (historically) you authorize a proxy in writing. Mail-in voting is not on the menu.
Second, the Legislature already eliminated proxy voting for this specific district. Chapter 2000-415, section 8, amending the Central County Water Control District's charter, said: "Proxy voting eliminated. – Proxy voting is prohibited in elections of the district board of supervisors." So the only option remaining for the District was in-person voting.
Third, special districts have only the powers the Legislature gives them. Florida law treats special districts (as opposed to home-rule cities) as creatures of statute with no inherent or implied powers. The Florida Supreme Court applied this rule in State ex rel. Davis v. Jumper Creek Drainage Dist., 153 Fla. 451 (1943), and the Fourth District applied it specifically to a water control district in Roach v. Loxahatchee Groves Water Control District, 417 So. 2d 814 (Fla. 4th DCA 1982). The District could not invent a voting procedure (like absentee ballots) the Legislature had not authorized.
The AG noted prior office opinions reaching parallel conclusions. AG Op. Fla. 90-63 (1990) had said water control districts have no inherent or home rule powers and thus could elect supervisors only in the manner prescribed by §§ 298.11 and 298.12. The same opinion said the District could not establish a procedure to recall a supervisor that the statute did not provide.
The opinion left one question explicitly open: it did not address whether absentee ballots could be used by qualified electors voting for the two board members elected by qualified electors under Chapter 2007-315 (those elections are conducted by the supervisor of elections under general election law, not under Chapter 298).
Common questions
Q: What is "one-acre, one-vote"?
A voting structure for special districts (water control, mosquito control, drainage, and similar districts) where landowners get one vote per acre owned. It contrasts with the constitutional "one person, one vote" rule for general-purpose government. Florida courts have generally upheld one-acre-one-vote arrangements for these limited-purpose districts.
Q: What about the elections for the qualified-elector seats?
Two of the five seats on the Central County Water Control District board are elected by qualified electors residing in the District (not by landowners), under Chapter 2007-315. Those elections are run by the county Supervisor of Elections under general Florida election law, which does include vote-by-mail. The 2019 opinion did not address those elections.
Q: Can a special district authorize absentee voting on its own?
Per the opinion, no, not for elections governed by Chapter 298 or by the district's enabling special act. Special districts have only the powers the Legislature has granted. The Legislature would need to amend the relevant statute or special act to add absentee balloting.
Q: Why did the Legislature eliminate proxy voting for this district in 2000?
The 2019 AG opinion did not explain the legislative motive. Proxy voting in Chapter 298 districts had historically allowed concentration of voting power in absentee landowners and large agricultural operators. The 2000 amendment to the District's charter eliminated that mechanism without substituting any other absentee mechanism, leaving only in-person voting.
Background and statutory framework
The Central County Water Control District was established by special act in Chapter 70-702, Laws of Florida (1970). All subsequent special acts were codified in Chapter 2000-415, Laws of Florida (2000), as amended by Chapter 2007-315, Laws of Florida (2007). Chapter 2007-315 made the board a hybrid: three landowner-elected members under Chapter 298, and two elected by qualified electors under general law.
Section 298.11 governs initial elections at the first landowners' meeting. Section 298.12(1) extends those procedures to subsequent annual meetings. Section 298.11(2) is the operative provision on how landowners cast their votes (one vote per assessable acre, in person or, historically, by proxy in writing).
The general principle that special districts have only the powers the Legislature has granted them was articulated in State ex rel. Davis v. Jumper Creek Drainage District, 153 Fla. 451 (1943), and applied to water control districts in Roach v. Loxahatchee Groves Water Control District, 417 So. 2d 814 (Fla. 4th DCA 1982).
Citations
Florida Statutes:
- § 97.041
- § 298.11; § 298.11(2)
- § 298.12; § 298.12(1)
Special Acts:
- Ch. 70-702, Laws of Fla. (1970)
- Ch. 2000-415, Laws of Fla. (2000)
- Ch. 2007-315, Laws of Fla. (2007)
Florida Cases:
- State ex rel. Davis v. Jumper Creek Drainage Dist., 153 Fla. 451, 14 So. 2d 900 (1943)
- Roach v. Loxahatchee Groves Water Control Dist., 417 So. 2d 814 (Fla. 4th DCA 1982)
Other AG Opinions:
- AG Op. Fla. 90-63 (1990); AG Op. Fla. 76-138 (1976)
Source
- Landing page: https://www.myfloridalegal.com/ag-opinions/special-district-absentee-voting
- Original PDF: https://www.myfloridalegal.com/print/pdf/node/1474
Original opinion text
John J. Fumero
Nason Yeager Gerson Harris & Fumero, P.A.
750 Park of Commerce Boulevard, Suite 210
Boca Raton, Florida 33487
RE: WATER CONTROL DISTRICT – ABSENTEE BALLOTS – voting by mail in annual landowner District Board elections is not permitted. §§298.11 & 298.12, Fla. Stat.
Dear Mr. Fumero:
This office has received your letter on behalf of the of the Central County Water Control District in Hendry County requesting an opinion regarding the use of absentee ballots in district landowner elections. You ask the following:
Does Chapter 298, Florida Statutes, or general Florida law, authorize or otherwise permit the use of absentee ballots by landowners voting for seats of the District Board at the annual landowners’ meeting?
In sum:
There is no language in the District’s charter or in the statutes that control District elections that authorizes voting by mail in District landowner elections.
The Central County Water Control District (the “District”) was established in 1970 by special act in chapter 70-702, Laws of Florida (1970). All subsequent special acts related to the District were codified in chapter 2000-415, Laws of Florida (2000), as amended by chapter 2007-315, Laws of Florida (2007).
Pursuant to Chapter 2007-315, the governing Board of Supervisors consists of five persons, three of whom are elected by landowners of the District and two by qualified electors. According to your research, the District has been allowing landowners – more than 50 percent of whom are absentee landowners – to vote by mail, although you point out that there is no authority for voting by mail in the District’s Charter or Chapter 298, Florida Statutes.
Chapter 2007-315, dealing with membership and qualifications, provides in section 9(1):
Three board members shall be elected by district landowners pursuant to chapter 298, Florida Statutes, on a one-acre, one-vote basis, and two board members shall be elected by qualified electors, as defined in section 97.041, Florida Statutes, who are residents of the district.
Under section 9(3), dealing with election procedures at the annual meetings:
Landowners’ meetings held in October of even-numbered years shall elect supervisors pursuant to chapter 298, Florida Statutes, as specified by this act. Supervisors to be elected by qualified electors shall qualify and run as nonpartisan candidates pursuant to general law.
Section 298.11 sets forth the procedures for the initial election of supervisors in a landowners’ meeting, and section 298.12(1) provides that subsequent annual meetings shall be conducted as provided in section 298.11.[1] Section 298.11(2) provides:
The landowners, when assembled, shall organize by the election of a chair and secretary of the meeting, who shall conduct the election. At the election, each and every acre of assessable land in the district shall represent one share, and each owner shall be entitled to one vote in person or by proxy in writing duly signed, for every acre of assessable land owned by him or her in the district, and the three persons receiving the highest number of votes shall be declared elected as supervisors. … (Emphasis added.)
Although proxy voting is generally permissible for water control districts, the Legislature foreclosed proxy voting for the District by the special act governing the District. Proxy voting was permitted in District elections until 2000, when the Legislature removed the authority for proxy voting in chapter 2000-415, section 8: “Proxy voting eliminated. – Proxy voting is prohibited in elections of the district board of supervisors.”
Accordingly, the only operative language in section 298.11 that addresses the actual casting of ballots by landowners provides that each is “entitled to one vote in person” per acre of assessable land.
Statutes creating special districts have only the powers the Legislature has granted to them. Accordingly, supervisors must manage a district within the limitations of the authorizing legislation. See State ex rel. Davis v. Jumper Creek Drainage Dist., 153 Fla. 451, 453, 14 So. 2d 900, 901 (Fla. 1943); Roach v. Loxahatchee Groves Water Control Dist., 417 So. 2d 814, 816 (Fla. 4th DCA 1982).
This office has previously stated that water control districts possess no inherent or home rule powers and thus they are limited to electing supervisors in the manner provided by sections 298.11 and 298.12 and may not adopt procedures that are not set forth therein.[2]
It is therefore my opinion that the Central County Water Control District may not permit landowners to use absentee ballots when voting for District members at the annual landowners’ meetings.[3]
Sincerely,
Ashley Moody
Attorney General
AM/tebg
[1] See Att’y Gen. Ops. Fla. 90-63 (1990) (under section 298.12, landowners meet annually to elect supervisors in the same manner as provided in section 298.11); 76-138 (1976).
[2] See Att’y Gen. Op. Fla. 90-63 (1990) (there was no statutory language authorizing landowners to establish a procedure to recall a supervisor of the water control district).
[3] This opinion does not address whether absentee ballots may be used by qualified electors for the two board members so elected pursuant to chapter 2007-315, Laws of Florida, which elections are conducted by the supervisor of elections rather than pursuant to chapter 298.