It was an exceptionally good week in Florida if…
…you do not believe in the First Amendment.
…you think autocracy is better than democracy.
…you believe in situational activism by state supreme court judges.
…and most importantly, if you believe in gross hypocrisy.
The week began with enactment of House Bill 1 which, as described in Thursday’s post “Vladimir DeSantis,” reclassifies certain peaceful protests as riots and increases the penalties for participation in such activities. I know the First Amendment specifically says, “Congress shall make no law” when it comes to “the right of the people peaceably to assemble,” but as you will see in a moment, the state’s action in this case is just one more example of how the Republican governor, attorney general and state legislature selectively use the supremacy clause in the U.S. Constitution to justify their desired outcomes.
The latest abuse of its authority by the state’s Republican power structure was on full display Thursday when, as reported by Kirby Wilson of the Miami Herald, “A high-profile effort to legalize marijuana was all but killed by the Florida Supreme Court.” After proponents had raised more than 556,000 of the required 891,589 signatures needed to put the proposed amendment to the state constitution on the November, 2022 ballot, a public referendum seemed within reach. It would still require 60 percent approval by voters to take effect.
However, a little known provision in state law requires the state attorney general to petition the Florida Supreme Court to advise whether the measure is, among other things, “facially valid under the United States Constitution.” And that is what Florida Attorney General Ashley Moody did on December 19, 2019, shown here warning state legislators you could still make a doobie “this big” under the proposed 2.5 ounce possession and transport limit. Though the petition generally met pro forma requirements, i.e. text of proposed amendment, name and address of sponsors, etc., it did contain one misleading statement. Moody reports the sponsors had not obtained the required signatures as of December 19, 2019 date of her petition; however, she failed to mention that the deadline was actually February 1, 2020. Recognizing the court’s consideration of the AG’s petition would likely exceed that deadline, the sponsors decided to postpone the vote until the 2022 mid-term election making the deadline for signatures February 1, 2022.
On April 22, 2021, by a 5-2 vote, the justices ordered the amendment initiative be stricken from the 2022 ballot for the following reasons. First, “the proposed amendment unqualifiedly permits the use (and distribution) of recreational marijuana is affirmatively misleading.” Second, it violates the Supremacy Clause as marijuana use is still illegal under federal law.
It is hard to accept the term “unqualifiedly permits” when the text includes the following:
The Department (of Health) shall issue reasonable regulations necessary for the implementation and enforcement of this section.
Furthermore, the new section of the Florida Constitution would be titled “Adult Use of Marijuana” defined as some 21 years of age or older. Does that not count as a qualification? It also limits possession, purchase or transport to 2.5 ounces, prohibits targeted advertising to persons under the age of 21, and prohibits use in public places. For those who do not understand that these clauses represent limits to recreational use, the section of the proposed amendment which contains these qualifications is titled “(c) Restrictions.”
Only if you ignore the contradiction between “unqualifiedly permits” and the actual text of the proposed amended can anyone come to the conclusion that the proposed summary which would appear on the 2022 ballot is “misleading.” Decide for yourself.
Permits adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason. Permits Medical Marijuana Treatment Centers to sell, distribute, or dispense marijuana and marijuana accessories if clearly labeled and in childproof packaging to adults. Prohibits advertising or marketing targeted to persons under 21. Prohibits marijuana use in defined public places. Maintains limitations on marijuana use in defined circumstances.
As to the court’s second objection, to understand the hypocrisy of invoking the Supremacy Clause look no further than the existing conflict between Florida’s medical marijuana law and current federal statutes. The Florida Supreme Count had no problem allowing the 2014 initiative related to medical marijuana to go forward despite the fact the U.S. Supreme Court, in the case of Gonzalez v. Raich (2005), upheld the federal government’s authority to prohibit the use of cannibas for medical purposes consistent with the Controlled Substances Act.
In his dissenting opinion, Justice Charles Alan Lawson (a 2016 Rick Scott appointee) notes “the majority’s reasoning and conclusion are logically irreconcilable with this Court’s precedent.” He too points to the 2014 advisory opinion related to medical use of marijuana in which the majority brushed aside any potential conflict with federal law, stating:
This Court has . . . never required that a ballot summary inform voters as to the current state of federal law [or] the impact of a proposed state constitutional amendment on federal statutory law . . . .
However, this narrow example of hypocrisy by the state supreme court is nothing compared to that of the governing philosophy of Governor Ron DeSantis and his administration. That same Ron DeSantis who has built a national following on the premise citizens have a right to decide for themselves if they should or should not wear a mask in public or should be required to show evidence of COVID vaccination. That same Ron DeSantis who signed legislation that now allows citizens to petition the government only in such manner as prescribed by the state under threat of imprisonment or being charged with a felony. Which of course is something that actually violates the Supremacy Clause which prohibits state and local authorities to limit rights guaranteed under federal law.
When the process of deciding public policy can be controlled by such a limited number of individuals, maybe the next proposed amendment should focus on the preamble of the Florida constitution and change the phrase, “We, the people of the State of Florida” to “Me, the people…” If you are going to borrow language from the U.S. Constitution, perhaps you should consider governing by the same principles.
None of the above legal analysis addresses the question, “What could possibly be the motivation for such twisted logic?” Many political consultants and pundits, myself included, have wondered why the Democratic Party has not taken a page out of the GOP campaign playbook when it comes to using the initiative process to gin up the party base. Analysis of several federal and state elections show Republican turnout was bolstered by ballot initiatives on issues of high importance to their voters such as anti-immigration and sanctity of marriage propositions. I have long argued Democrats could boost turnout among younger voters, who heavily support Democratic and progressive candidates, by championing two issues: legalization of marijuana and net neutrality.
Based on the 2018 mid-term election, we know how important turnout can be in congressional and gubernatorial races. In Florida, a half percent difference would have led to a different outcome. Certainly, increased younger voter participation in 2022 can make up that deficit in Democratic support. Therefore, is it any surprise a Republican dominated Florida Supreme Court with backing from a Republican attorney general, Republican members of the state legislature and the conservative Florida Chamber of Commerce chose this issue as the “red line” to invoke the supremacy clause of the U.S. Constitution? Especially since 16 states have done exactly what the Florida amendment would allow, and none have been taken to court by the past three presidents or reprimanded by the U.S. Supreme Court. Can you say implicit voter suppression? I knew you could.
I at least take comfort in the availability of medical marijuana in Florida, as I am sorely in need of a doctor’s prescribed relief for my growing angst over the erosion of democracy in the Sunshine State.
For what it’s worth.