Recreational weed could be legalized and abortion rights could be protected in Florida, but a lot depends on a state Supreme Court dominated by Gov. Ron DeSantis appointees.
The GOP governor and Legislature have evidenced no appetite for legalizing marijuana and have actively restricted abortion. But the state Constitution offers residents a powerful tool rooted in the First Amendment to pass policies that their elected officials won’t stomach.
Citizen initiatives.
They allow Floridians to get amendments on the ballot that change the state Constitution. And it’s been wildly successful. Voters have raised the minimum wage, legalized medical marijuana, approved voting rights to former felony offenders, and, back in 2002, even banned confinement of pregnant pigs.
The amendments must be approved by at least 60% of the vote.
But, before they even reach voters, the initiatives must go through a process that has been made more complicated, challenging and costly by conservative lawmakers in recent years.
Without big donors to help push initiatives through to a DeSantis-stacked Supreme Court, there’s little chance for these high-profile petitions. And how the court ultimately rules on them could affect donors’ enthusiasm.
“I would suspect interest groups looking for places to invest in the initiative are watching closely to see if Florida is now a high-risk endeavor, because the courts seem really adversarial toward the initiative,” said Jonathan Marshfield, a University of Florida associate law professor.
“Because the state Supreme Court selection process is so heavily tied to the governor’s office, we have genuine reason to be suspicious about the extent to which the court is going to push back on [initiatives counter to the governor’s agenda],” Marshfield said.
How it ultimately rules, he said, will answer that question.
What could be at stake? Democratic and Republican chairs weigh in
Some are already concerned about what that answer may be.
The abortion petition recently got enough signatures for Supreme Court review. With oral arguments scheduled for Nov. 8, the marijuana measure has been on the docket for multiple months, generating a flurry of filings for and against.
For Florida Democratic Chair Nikki Fried, the Supreme Court’s decisions will effect more than the initiatives. Especially if it swats them down.
“The effect is a loss of democracy here in Florida, that there are no checks and balances,” Fried said.
While the majority of Floridians are supportive of recreational marijuana, DeSantis has repeatedly spoken against it. Legalization bills introduced during past legislative sessions haven’t budged.
“You have a very gerrymandered Legislature that is not reflective of the people in our state,” Fried said. “You have a governor who is running for president who cares more about his political career than the people he’s governing for. And a stacking of courts that is going to back up these principles.
“Where do the people come in?”
Christian Ziegler, chair of the Republican Party of Florida, dismissed the idea of Supreme Court bias.
“Look, the rules are very clearly laid out, so what you’re hearing are people complaining about having to play by the rules,” Ziegler said. “I think what the Democrat party has, they have a big problem. They’re losing voters. Every month we’re continually crushing them.”
“If [Fried] is going to complain about laws that are being passed, or even the tilt of the Supreme Court, maybe she should stop whining and start focusing on winning elections,” he said.
The governor’s office and the Supreme Court didn’t respond to media requests.
The legal debate and the single subject pitfall
DeSantis has shifted the previously liberal-leaning court to the right since taking office in 2019, appointing five of its seven justices.
Fried accused those justices of “putting their own personal beliefs” into the amendment-reviewing process.
In that process, the Supreme Court must determine whether that amendment language sticks to a single subject and isn’t misleading.
But the American Civil Liberties Union of Florida filed a brief claiming the court had struck down amendments on grounds not based in constitutional text, creating what it said was “inappropriate judicial discretion” from “inconsistent” decisions.
The ACLU of Florida says that’s made it difficult for petitioners to figure out how to draft valid amendments and hard to retry initiatives the court has struck down.
“Donors would be more willing to support a measure that failed once if drafters knew how to rewrite it to satisfy Florida Supreme Court review,” the organization wrote.
In the last five years, the Supreme Court nixed four out of nine citizen initiatives it reviewed from the ballot and declined to review another, according to the ACLU of Florida. It struck zero citizen initiatives out of the seven it reviewed in the five years before that, the organization says.
The Supreme Court OK’d and Florida voters approved a medical marijuana constitutional amendment in 2016. But, in 2021, the court rejected two proposed constitutional amendments for recreational marijuana.
In recent years, it’s also struck down a proposed amendment banning assault rifles and an “energy choice” initiative that would’ve upended Florida’s utility industry.
It’s not just organizations like the ACLU of Florida, which typically champions progressive causes, that are concerned about the Supreme Court.
Libertarian think tank Cato Institute, which also filed a brief in the case, accused the court of “sometimes unduly restrict[ing] citizen initiatives through misapplication of the single-subject rule.”
“It is crucial that judicial review not prevent the people from exerting control over their government,” the Cato Institute wrote.
The organization said the more aggressively single-subject rule is enforced, the more outcomes align with a judge’s “partisan preferences.”
Chamber vs. Cato Institute: Two organizations’ takes
Worries of Supreme Court partisan bias aren’t exactly new. When the court was liberal-leaning, conservatives bashed its decisions on ballot initiatives.
But GOP lawmakers in recent years have reduced the timeframe and increased the cost for citizen initiatives. A Legislature-introduced constitutional amendment back in 2006 even moved up how many votes measures must get from, 50% to 60%. Floridians approved it with 57.8% voting in favor.
Lawmakers have also passed laws blunting the impact of them when they do pass.
Joshua Katz, a research fellow for the Cato Institute’s Robert A. Levy Center for Constitutional Studies, said it’s especially difficult for groups to follow the single-subject rule without giving the Legislature too much space to undermine an amendment.
One of the examples he pointed to: After voters approved medical marijuana, lawmakers and then-Gov. Rick Scott banned smokable forms of it. A judge ruled that unconstitutional, and DeSantis signed legislation lifting the ban in 2019.
The same year, though, DeSantis and the Republican-controlled legislation took a shot at another constitutional amendment.
In 2018, voters approved Amendment 4, which aimed to restore voting rights to 1.4 million people barred because of past felony convictions, with the exception of murder or sexual offenses.
Months later, the Legislature passed a bill signed into law by DeSantis to keep hundreds of thousands of felons from becoming eligible to vote until they met all their past legal financial obligations.
“The more that you do to shore up the initiative, the more you strengthen the argument that the initiative is addressing multiple subjects,” Katz said.
The CATO Institute’s argument came in response to a filing by the Florida Chamber of Commerce opposing the initiative. The organization, which has levied its influence against various initiatives for years, says, in part, that since it both decriminalizes and commercializes marijuana, it violates the single-subject rule.
Mark Wilson, the Florida Chamber of Commerce’s president and CEO, said in a statement that many of the more than 150 amendments adopted since the state Constitution was ratified in 1968 could have been handled through statute, which is more easily adjusted when needed.
Other amendments, he said, came from “out-of-state interests that often lack an understanding of how these issues will impact Floridians.”
“While we appreciate that those wanting to buy a spot on the ballot don’t like citizen safeguards around out-of-state and special interest-driven paid petition efforts, we will continue to advocate for robust protections of the Florida Constitution on behalf of the Florida families and local business living under it,” he said.
Attorney General Ashley Moody makes the case against marijuana
Florida Attorney General Ashley Moody, in a statement provided to the USA TODAY NETWORK-Florida, said she has “complete faith in the Florida Supreme Court and its ability to decide whether a ballot summary is misleading.”
She’s also against the initiative but is not focusing on single-subject requests. Moody’s opposition largely centers around her belief that it’s misleadingly written.
“When voters decide whether to amend the Florida Constitution, it is essential that they know what they are voting for,” she said.
She argues in court filings that, for one, it’s incorrect for the petitioners to say the amendment is going to “allow” marijuana, even if it becomes legal in Florida, like it already is in 23 other states. That’s misleading, she says, since it’s unlawful federally.
The amendment would also give an unfair advantage, she said, to Trulieve, the company bankrolling the proposal. It’s Florida’s largest medical marijuana operator.
“In the end, if the Sponsor wanted to abolish state-law barriers to recreational marijuana, the straightforward way would have been to erase the old medical regime and replace it with a recreational one,” Moody writes.
Smart and Safe Florida, the committee pushing the initiative, says it carefully studied the law and Supreme Court guidance when crafting its language.
“This Court should reject these misguided efforts to jettison established legal rules in service of a thinly veiled policy agenda,” Smart and Safe said in a filing. “The fact that the Attorney General must resort to such extreme and destabilizing arguments confirms that the Initiative readily complies with settled standards.”
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‘Blowback’ and ‘backlash’
Rich Templin, director of politics and public policy for Florida AFL-CIO, said there could be “significant blowback” if the Supreme Court nixes the initiatives.
“If the Supreme Court kicks it off the ballot, that means all these people, on both sides, who want to have their voices heard, they just got snuffed out,” he said.
The Supreme Court is currently considering whether to reverse decades-long precedent and uphold a current law restricting abortions after 15 weeks. If justices rule in favor, a six-week abortion banned passed over the last legislative session would take effect soon after.
Chair Fried believes the marijuana and abortion initiatives would boost 2024 Democratic turnout.
“When [citizens] are seeing that their elected officials are not listening to them, and they’ve an opportunity to go to the ballot box to vote for these issues, you’ll see higher turnout, you’ll see higher engagement,” she said.
Some political scientists contest this belief. So does Republican Chair Ziegler, who said the turnout is going to be “overwhelmingly motivated” by voters wanting to get rid of President Joe Biden.
But, conversely, Fried said if the Supreme Court knocks down one or both of the initiatives, there will be backlash Republicans don’t anticipate.
“I believe the people are going to rise up and are going to reject what is happening in our state,” Fried said. “That will give the catalyst for higher voter turnout in 2024.”
This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule is based in Tallahassee, Fla. He can be reached at DSoule@gannett.com. Twitter: @DouglasSoule.
