The Florida Supreme Court has dealt a critical blow to marijuana activists working to legalize marijuana in the state—killing an initiative that hundreds of thousands of voters have already signed and forcing them to start all over again if they want to make the 2022 ballot.
In a 5-2 ruling on Thursday, the court determined that the Make It Legal Florida reform initiative is unconstitutional, arguing that the ballot summary is “affirmatively misleading” because it says adult-use cannabis would be made lawful in the state without explicitly acknowledging that it would remain illegal under federal law.
This means advocates would have to start over—from drafting the measure to collecting signatures—if they hope to make next year’s ballot.
The group had already collected 556,049 valid signatures for the now-invalidated constitutional measure. They needed 891,589 to place the initiative before voters. Then at least 60 percent of voters would’ve had to approve it on the ballot for it to pass.
The court took up a legal review of the initiative at the request of state Attorney General Ashley Moody’s (R) office, which then submitted a brief in opposition to the legalization petition.
At issue, the majority justices said in their ruling, is the use of the word “permits” in the ballot summary when referring to activities such as possessing and purchasing marijuana by adults 21 and older. Because the initiative fails to acknowledge that such activity would not be permissible under federal law, they deemed the summary “misleading” and therefore unconstitutional.
“The summary’s unqualified use of the word “[p]ermits” strongly suggests that the conduct to be authorized by the amendment will be free of any criminal or civil penalty in Florida… The proposed amendment, on the other hand, explains that the conduct will only be free of criminal or civil liability “under Florida law.” The proposed amendment includes that language, of course, because a recreational marijuana user or distributor will remain exposed to potential prosecution under federal law—no small matter.”
But in a dissenting opinion, two justices argued that it’s essentially self-evident that the measure would only apply to Florida law and not change federal statute prohibiting marijuana.
In a sense, the justices said there’s precedent in place that makes it incumbent upon voters to do their research and understand the fundamental implications of their votes. And in this case, they said, the majority is effectively saying voters cannot be trusted to understand basic governance.
— FloridaSupremeCourt (@flcourts) April 22, 2021
“Today’s decision underestimates Florida voters and adds hurdles to the citizen-initiative process that are not supported by the plain language of the governing law or our precedent,” the two justices wrote.
“Our review similarly presumes that voters possess a rudimentary knowledge of their government’s structure and of the laws governing their conduct. Citizens are also presumed to know what constitutes a federal crime,” the dissenting opinion states. “Finally, it is one of the most fundamental and elementary principles of our constitutional republic that no state law—not even a state constitution—can override federal law.”
They also used an analogy to explain the “fallacy in the majority conclusion.”
“If, for example, you and I were instructed on a one-question final exam to summarize the predominant compounds present in the earth’s atmosphere and answered that the earth’s atmosphere is predominantly comprised of nitrogen (approximately 78%) and oxygen (approximately 21%), our summary should be viewed as correct because the rest of the gases combined account for only about 1% of the earth’s atmosphere,” they wrote.
“We would be quite upset, and rightfully so, if we were told by our professor that we had failed the exam because our answer was misleading in that it did not explain that the sun’s atmosphere is different,” they said. “Our justifiable confusion would be even more profound if the test instructions had plainly stated that our summary need not list predominant compounds in the sun’s atmosphere and need not explain differences between the earth’s atmosphere and the sun’s.”
It’s possible that this decision in the Make It Legal Florida case could have been avoided if they’d taken precautionary steps in the ballot summary as a campaign that placed medical cannabis legalization on the ballot did for 2016. The court reviewed that language as well, but they did not overturn it because the measure include explicit language about how the policy does not protect patients from federal repercussions.
Marijuana Moment reached out to Make It Legal Florida, but representatives were not immediately available.
The campaign had intended to get legalization on the ballot in 2020, but activists announced early that year that they were shifting focus to 2022 due to restrictive signature gathering requirements.
If the measure hadn’t been killed by the court and ultimately qualified and was approved by voters, it would have allowed adults 21 and older to possess, use, transport and purchase up to 2.5 ounces of cannabis. Existing medical cannabis dispensaries would have been able to sell recreational marijuana.
Recent polling shows that a majority of Florida voters (59 percent) support legalizing cannabis for adult use. That said, the constitutional amendment that the court rejected would have required 60 percent voter approval to be enacted, meaning activists still would have had their work cut out for them to ensure victory—especially in a midterm election in which turnout dynamics are typically not as favorable to cannabis reform as in presidential years.
Read the Florida Supreme Court ruling on the marijuana legalization initiative below: