Florida Tries Again

Florida voters may have the opportunity to legalize adult-use cannabis during the next general elections. First, though, the Florida Supreme Court must okay the language on the ballot initiative, in the face of likely opposition from the other branches of the state government. As Floridians watch their elected officials argue against letting them vote on the issue of cannabis legalization, they will have a chance to ponder just how free Florida is.

Procedural requirements to legalize cannabis in Florida

Under the Florida Constitution, initiative sponsors must collect a certain number of signatures to get the initiative on the ballot. Prior to that, the initiative must be reviewed by the Florida Attorney General and the Financial Impact Estimating Conference (FIEC). For these reviews to take place, sponsors must have already collected 25 percent of the total number of signatures required. The sponsors of the current initiative have already reached that threshold.

By law, the Attorney General must request an advisory opinion from the Florida Supreme Court, “regarding the compliance of the text of the proposed amendment or revision with s. 3, Art. XI of the State Constitution, whether the proposed amendment is facially invalid under the United States Constitution, and the compliance of the proposed ballot title and substance with [Section] 101.161 [of the Florida Statutes].” The cited section of the Florida Constitution requires that proposed amendments “embrace but one subject and matter directly connected therewith.” This is sometimes referred to as the “single-subject requirement.” For its part, Section 101.161 stipulates that a summary of any proposed amendment be printed in “clear and unambiguous language” on the ballot.

How Florida cannabis legalization failed in 2022

The current push to get legalization on the ballot follows an earlier, failed effort in the leadup to the 2022 election. Back then, the Florida Supreme Court struck down the proposed ballot on the grounds that it failed to meet the requirements of Section 101.161. The court found that the use of the verb “permits” in the ballot summary would have misled voters “into believing that the recreational use of marijuana in Florida will be free of any repercussions, criminal or otherwise,” when in fact the underlying conduct would remain criminalized under federal law.

Opponents of the 2022 initiative (a group that included both chambers of the Florida Legislature and the Attorney General) argued that the proposed amendment was in fact facially invalid under the U.S. Constitution. The Florida Supreme Court, however, chose not to address the issue, instead basing its decision solely on its interpretation of Section 101.161. If the language of the current initiative is not open to attack on grounds that it violates the single-subject and/or ballot title and substance requirements, expect opponents to push the federal constitutional argument more vigorously.

The Florida Supreme Court’s decision on the 2022 ballot initiative suggests it might be amenable to such an argument. While ostensibly it rejected the proposed amendment due to a deficiency in the ballot language, the court’s application of the relevant statute was particularly strict. Dissenting from the court’s opinion, Justice Lawson noted that the court had “never required that a ballot summary inform voters as to the current state of federal law.” The court’s posture, Lawson argued, was “in direct violation of the deferential, nonpaternalistic rules and presumptions that have historically governed our decisions in this area.” Would the outcome have been different if the subject matter of the amendment had not been cannabis?

Florida should allow its voters to decide on cannabis legalization

While Florida state officials have every right to oppose cannabis legalization, it is strange to see some of them do so by seeking to curtail Florida’s exercise of its own sovereignty and denying Floridians the opportunity to express their views at the ballot box. If anything, Florida officials should be pushing back against the federal government’s questionable use of its authority under the U.S. Constitution’s Commerce Clause to regulate cannabis-related activities. After all, one would expect self-styled Free Florida to be at the forefront of the fight against federal overreach. And what better way to do this than by letting Floridians, not federal or state government officials, decide the kind of cannabis laws they want in the Sunshine State.