On Thursday, the Florida Supreme Court—probably the most conservative state high court in the country–concluded that the state’s voters could not be trusted with a ballot initiative that would legalize recreational marijuana for adults. By a 5–2 vote, the court tossed out the initiative, denying Florida residents the opportunity to vote on it. To justify its action, the majority seized upon a dubious rationale: It asserted that the ballot summary implies that the initiative will somehow legalize marijuana under federal law, rendering it “affirmatively misleading.” Because of this putative defect, the court denied Floridians an opportunity to repeal state laws banning recreational weed.
The campaign to liberalize Florida’s marijuana laws has long pitted the people against state officials. For years, the Republicans in the state legislature and governor’s mansion refused to expand access to cannabis. In 2016, Floridians took the matter into their own hands, legalizing medical marijuana through a ballot initiative amending the state constitution that passed with more than 71 percent of the vote. Former Republican Gov. Rick Scott, abetted by GOP state legislators, attempted to gut this new law by strictly limiting qualifying conditions for the drug and banning smokable marijuana. A court blocked that ban, and the legislature eventually repealed it.
Seizing this momentum, cannabis reform advocates launched a new ballot initiative to legalize recreational marijuana for all adults over the age of 21. As of Thursday, the initiative’s sponsor had raised $8.2 million and collected more than 556,000 signatures out of the 891,589 needed to get on the ballot in 2022. Its strong support at this early date indicated a real possibility that the initiative would cross the 60 percent threshold necessary to amend the state constitution. But as its proponents were collecting signatures, Attorney General Ashley Moody, a Republican, asked the Florida Supreme Court to weigh in on the measure’s legality. Specifically, Moody urged the justices to rule that the summary intended to appear on ballots in 2022 was “misleading” and toss out the initiative.
After hearing oral arguments, the Florida Supreme Court sat on this case for a year—an unprecedented amount of time for a challenge to a ballot initiative. Then, on Thursday, in an unsigned opinion, a majority of the court held that the language was unlawfully “misleading.” This ruling kills the entire initiative; because the court waited so long to issue its decision, the measure’s proponents do not have enough time to formally correct the summary before 2022. The majority took issue with a single word: “permits.” It noted that the ballot summary says the measure “permits” adults over 21 to buy, use, and possess marijuana for recreational purposes. But, the court pointed out, marijuana remains illegal under federal law. “The summary’s unqualified use of the word “permits” strongly suggests that the conduct to be authorized by the amendment will be free of any criminal or civil penalty in Florida,” the majority held. Yet “a constitutional amendment cannot unequivocally ‘permit’ or authorize conduct that is criminalized under federal law. And a ballot summary suggesting otherwise is affirmatively misleading.”
This reasoning is curious because in 2014, the Florida Supreme Court held that a ballot summary about medical marijuana need not inform voters about an amendment’s impact on federal law, only state law. But on Thursday, without acknowledging it, the court quietly overruled this precedent. It declared that this summary “strongly suggests that the conduct to be authorized by the amendment will be free of any criminal or civil penalty in Florida.” Put differently, voters will think that, by amending their state constitution, they are somehow repealing or suspending the federal ban on marijuana. That, the court concluded, renders the initiative unlawful.
At the time of the 2014 ruling, the court leaned to the left. In their dissents back then, conservative Justice Charles Canady and Ricky Polston insisted that the initiative was misleading because it did not sufficiently convey the illegality of marijuana under federal law—the same logic deployed on Thursday. Seven years later, the court’s liberal justices have been forced out by mandatory retirement rules, and Republican Gov. Ron DeSantis has replaced them with conservatives who adhere to the Federalist Society party line. And on Thursday, Canady and Polston were able to transform their 2014 dissents into the majority, with the support of their fellow Republicans.
Two justices—Jorge Labarga, a moderate, and Alan Lawson, a conservative—dissented. Lawson’s dissent is quite sharp: He condemned the majority opinion as “contrary to rational analysis,” a “non sequitur” that “violates basic principles of logic.” The court typically takes “a nonpaternalistic approach to our review, expecting voters to educate themselves regarding the details of a proposed amendment before voting.” It “presumes that voters possess a rudimentary knowledge of their government’s structure and of the laws governing their conduct.” That is especially true when citizens participate in the “core right of self-governance” by voting to amend their state constitution. Plus, “there is the practical matter of not knowing how federal law will change in the years between the drafting of any ballot summary and a vote on the amendment.” Indeed, Congress is currently considering legislation that would decriminalize marijuana on the federal level. Yet the Florida Supreme Court demanded the ballot initiative’s summary predict that weed will remain illegal federally in November 2022.
Reading Lawson tally the majority opinion’s inconsistencies and irrationalities, it is difficult to avoid the conclusion that the court relied on something other than the law to reach its decision in this case. It seems as if the majority is offended by the notion of legalizing marijuana under state law while it remains illegal under federal statute, and worked its way back from that conviction. But that is not the Florida Supreme Court’s decision to make; it is supposed to be the choice of the voters.
Then again, Florida Republicans are not very friendly to self-governance through ballot initiative. In recent years, they have placed heavy new burdens on this process in an effort to restrict the number of proposed amendments that reach the ballot. This drive is motivated in part by the success of a ballot initiative restoring voting rights to people convicted of felonies, which the legislature opposed and then eviscerated. Thursday’s decision may be a byproduct of Republican hostility toward the initiative process as much as it is a consequence of five conservative justices’ distaste for marijuana reform. Whatever the motivation, the bottom line is clear: The Florida Supreme Court does not trust the state’s voters to govern themselves.
Update, April 22, 2021: This article has been updated to note that the court took nearly a year to issue its decision.
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