New ballot restriction law could be bad news for adult pot initiative

The new law requires the Florida Supreme Court to determine whether an initiative is unconstitutional.

The Florida Senate is using a controversial new law to try to bolster arguments against a proposed constitutional amendment that seeks to allow people to use recreational marijuana.

Lawyers for the Senate and other opponents have argued in recent months that the Florida Supreme Court should block the proposed amendment because it would conflict with federal laws that make marijuana illegal.

But in a filing this week, the Senate ratcheted up that argument by pointing to part of a new state law that seeks to make it harder to pass ballot initiatives. That part of the law calls on the Supreme Court to consider whether proposed amendments are “facially invalid under the United States Constitution.”

The filing Saturday by Senate attorneys said the law, which was signed last week by Gov. Ron DeSantis, is “relevant” to the broader argument about the recreational-marijuana amendment conflicting with federal laws. On Monday, the Supreme Court responded by issuing an order inviting the parties in the recreational-marijuana dispute to “file supplemental briefs addressing the implications, if any, of” the new law.

The Supreme Court plays a critical role in determining whether proposed constitutional amendments go before voters, reviewing ballot summaries and titles to determine whether the proposals meet legal standards such as not being misleading. Justices are scheduled May 6 to hear arguments about the recreational marijuana proposal, which is sponsored by the political committee Make It Legal Florida and could go on the 2022 ballot.

Opponents, including the Senate, House, Attorney General Ashley Moody and the Florida Chamber of Commerce, have filed briefs at the Supreme Court that primarily attack the amendment because of the potential conflict with federal drug laws. They have contended, in part, that the ballot proposal does not adequately inform voters of the conflict.

Part of that argument also is that federal laws generally trump state laws under the U.S. Constitution’s “Supremacy Clause.”

“When a ballot summary tells voters something that is affirmatively untrue, it violates (a section of state law) and must be kept off the ballot,” Moody’s attorneys wrote in a January brief. “The ballot summary for the Adult Use of Marijuana initiative fails that test because it expressly, repeatedly, and unqualifiedly purports to ‘permit’ conduct that is prohibited by federal law.”

But attorneys for Make It Legal Florida have disputed those arguments and cited ballot proposals in 2014 and 2016 about legalizing medical marijuana in the state. While the 2014 amendment failed, the 2016 measure passed and has spawned a large medical-marijuana industry.

“Under this (Supreme) Court’s precedent, ballot summaries are not required to recite the current state of federal law, or an amendment’s effect on federal law,” Make It Legal Florida attorneys wrote in a January brief. “Nor must a ballot summary remind voters that they are voting to amend Florida’s Constitution rather than federal statutes. An amendment to Florida’s Constitution obviously cannot change federal law, just as it cannot change the law of California or Georgia. The ballot summary does not purport to effect such a change, nor could it. Florida voters do not require a lesson in these elementary civics principles, especially having voted on marijuana amendments in two out of the last three election cycles.”

The filing by the Senate this week, however, indicates that opponents hope to use the new law as added ammunition to try to block the proposed amendment. State laws in the past have not so explicitly called on the Supreme Court to weigh whether proposed amendments could be invalid under the U.S. Constitution.

The new law (SB 1794) was highly controversial during the legislative session that ended last month, as it includes a series of steps aimed at making it harder to move forward with ballot initiatives. Senate lawyers also argued this week that new petition-signature requirements in the law should block a proposed constitutional amendment aimed at expanding Medicaid coverage.


Republished with permission from the News Service of Florida.

News Service Of Florida

The News Service of Florida provides journalists, lobbyists, government officials and other civic leaders with comprehensive, objective information about the activities of state government year-round.


  • Melanie Marshall

    April 17, 2020 at 10:44 am

    Florida is so far behind on reclaiming rights because so few people contact their elected officials, so our officials can abide by those who can provide incentives instead of working to protect our rights, which is their only job.

  • Matthew R. Abel

    April 18, 2020 at 3:33 pm

    21 U.S. Code § 903. Application of State law
    U.S. Code
    prev | next
    No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

    (Pub. L. 91–513, title II, § 708, Oct. 27, 1970, 84 Stat. 1284.)

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