CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 8/18/2023 1

Counting Federal Write-In Ballots 

Even If Election Officials Did Not Receive 

Absentee-Ballot Applications 

Bush v. Hillsborough County Canvassing Board 

(Lacey A. Collier, N.D. Fla. 3:00-cv-533) 

A district judge ruled that it was improper for counties to not count 

federal write-in ballots cast by overseas voters solely because the 

counties had no record of an application for an absentee ballot or 

solely because the ballots were not postmarked. 

Subject: Absentee and early voting. Topics: Uniformed and 

Overseas Citizens Absentee Voting Act (UOCAVA); military 

ballots; absentee ballots; write-in candidate; enforcing orders. 

During a time of uncertainty over who had won Florida’s electoral votes in 

the 2000 presidential election, George W. Bush, Richard Cheney, and Florida’s Republican Party filed a federal complaint on Sunday, November 26, in 

the Northern District of Florida to challenge the rejection by seven counties—Collier, Hillsborough, Okaloosa, Orange, Pasco, Polk, and Walton—of 

some absentee ballots cast by overseas and military voters.1

On Friday, December 1, the plaintiffs moved for expedited hearing,2 and 

Judge Lacey A. Collier set the case for hearing on December 5.3

 On December 8, Judge Collier granted the plaintiffs relief.4

The Uniformed and Overseas Citizens Absentee Voting Act of 19865

provided for the use of a federal blank absentee ballot by an overseas voter 

1. Complaint, Bush v. Hillsborough Cty. Canvassing Bd., No. 3:00-cv-533 (N.D. Fla. Nov. 

26, 2000), D.E. 1; Bush v. Hillsborough Cty. Canvassing Bd., 123 F. Supp. 2d 1305, 1306 

(N.D. Fla. 2000); see also Steve Bousquet & Phil Long, GOP Pushes Harder to Find Votes, 

Miami Herald, Nov. 26, 2000, at 1A (reporting on earlier related state-court challenges); 

Michael Cooper, The Multipronged Strategy for Bush’s Absentee Votes, N.Y. Times, Nov. 27, 

2000, at A14 (same); David Karp, Suit Hinges on Overseas Ballots, St. Petersburg Times, Nov. 

28, 2000, at 1B (same); Jeff Kunerth & John Kennedy, It’s Not Over; We’ll Get a Winner But 

Not a President, Orlando Sentinel, Nov. 26, 2000, at A1 (same). 

Okaloosa and Walton are in the Northern District; the other five counties are in the 

Middle District. 28 U.S.C. § 89. 

2. Motion, Bush, No. 3:00-cv-533 (N.D. Fla. Dec. 1, 2000), D.E. 5; Bush, 123 F. Supp. 2d 

at 1306. 

3. Order, Bush, No. 3:00-cv-533 (N.D. Fla. Dec. 1, 2000), D.E. 4; Bush, 123 F. Supp. 2d at 

1306; see Minutes, Bush, No. 3:00-cv-533 (N.D. Fla. Dec. 5, 2000), D.E. 21; see also Louis 

Cooper, Rejected Ballot Issue in Judge’s Court, Pensacola News J., Dec. 6, 2000, at 2A. 

4. Bush, 123 F. Supp. 2d 1305; see Marc Caputo, U.S. Judge: Overseas Ballots Must Be 

Counted, Palm Beach Post, Dec. 10, 2000, at 18A; Louis Cooper, Some Overseas Ballots Ruled 

Valid, Pensacola News J., Dec. 9, 2000, at 2A; Michael Cooper & Richard Pérez-Peña, In a 

Shadow, Other Cases Go On, N.Y. Times, Dec. 12, 2000, at A26 (“Judge Collier rejected several of the Bush camp’s arguments for reinstating votes, but agreed in two areas.”); William 

Yardley, Phil Long & Andres Viglucci, GOP Fights Tossing of Undated Ballots, Miami Herald, Dec. 6, 2000, at 21A. See generally Daniel P. Tokaji, Public Rights and Private Rights of 

Action: The Enforcement of Federal Election Laws, 44 Ind. L. Rev. 113, 143–44 (2010).
Counting Federal Write-In Ballots 

Even If Election Officials Did Not Receive Absentee-Ballot Applications 

2 Federal Judicial Center 8/18/2023 

who had not received the state’s absentee ballot in time, despite having requested it in time.6

 The write-in ballot included an oath that the voter had 

made a timely application for an absentee ballot.7 Judge Collier ordered the 

counties to count federal write-in ballots even if the counties had no record 

of the voters’ requesting absentee ballots.8 “We must presume, without evidence to the contrary, that if the election official does not have the application on record, it is because of a problem with the overseas mail system or 

their own clerical error.”9

Judge Collier also ordered the counties to count federal write-in ballots 

even if they were not postmarked, because the federal statute specified no 

postmark requirement and the ballot included an oath that the voter had 

timely submitted the ballot from outside the United States.10

On December 9, the plaintiffs filed a motion with the court certifying 

that they had been only partially successful in notifying local election officials 

of Judge Collier’s ruling,11 and Judge Collier granted the plaintiffs a temporary restraining order requiring compliance with her ruling even without 

formal notice.12

5. Pub. L. No. 99-410, 100 Stat. 924, as amended, 52 U.S.C. §§ 20301–20311. See generally

Robert Timothy Reagan, Overseas Voting: The Uniformed and Overseas Citizens Absentee 

Voting Act (Federal Judicial Center 2016). 

6. Bush, 123 F. Supp. 2d at 1310–12. 

7. Id. at 1317. 

8. Id. 

9. Id.; see Reagan, supra note 5, at 15. 

10. Bush, 123 F. Supp. 2d at 1316–17. 

11. Motion, Bush v. Hillsborough Cty. Canvassing Bd., No. 3:00-cv-533 (N.D. Fla. Dec. 9, 

2000), D.E. 25. 

12. Temporary Restraining Order, id. (Dec. 9, 2000), D.E. 26; see Corrected Temporary 

Restraining Order, id. (Dec. 12, 2000), D.E. 27.