Florida Ballot Initiative Asks Voters to Ban Offshore Drilling and Vaping in Offices

Critics have sued, saying the "bundled" initiative violates the First Amendment.



Do you support off-shore drilling, but are not quite sold on vaping in offices? Maybe you think e-cigarettes in the workplace are good for public health but more fossil-fuel excavation would do damage to the planet?

In most states, voters and legislators would be able to parse these issues separately. But not in Florida, pending a decision of the state Supreme Court. Today the court agreed to hear a challenge to whether three amendments should be kept off the November ballot because they improperly combined unrelated issues into the same ballot initiatives.

In dispute are Amendments 7, 9, and 11. The first asks voters to sign off on the creation of state-funded death benefits for the spouses of active duty military personnel and also changes to how state universities approve fee increases. Amendment 9 bans both vaping and off-shore drilling. Amendment 11 repeals a number of constitutional provisions that alternatively require the state to develop a high-speed rail system and prohibit certain foreign residents from owning property.

If you are wondering what kind of signature-gathering campaign cobbled together these initiatives, the answer is none. These nebulous amendments made it onto the ballot thanks to a Florida oddity known as the Constitutional Revision Commission (CRC).

Created back in the 1960s, the CRC is comprised of 36 unelected commissioners plus the attorney general, who meet once every 20 years to draft constitutional amendments that are then sent directly to voters for consideration. The original purpose was to make it easier to change the Florida Constitution without having to go through a heavily gerrymandered legislature. But over time that emphasis on structural constitutional changes has given way to the more routine political and regulatory issues.

"The focus has shifted over time not just in the CRC, but also in the citizens' initiatives," says Mary Atkins, a professor at the University of Florida Levin College of Law. "There has been some creep."

Few of the seven CRC-sponsored initiatives this year deal with root constitutional issues. Instead they range from a prohibition on dog racing to a loosening of charter school laws.

In an attempt to avoid "voter fatigue," the CRC decided to package what started as some 20 or so proposals into just seven initiatives. For some critics, this isn't just a bizarre and inappropriate way to make law but an affront of voters' First Amendment rights. A lawsuit filed by former Florida Elections Commissioner Robert Barnas and former Florida Chief Justice Harry Lee Anstead says that six of the CRC's seven proposed amendments violate "the First Amendment right of the voter to vote for or against specific independent and unrelated proposals to amend the constitution without paying the price of supporting a measure the voter opposes or opposing a measure the voter supports."

Last week a lower court judge agreed with these arguments, tossing amendments 7, 9, and 11. Two other amendments proposed by the CRC—including the one loosening charter school regulations and another that packaged together various judicial reforms—were tossed for having imprecise or confusing language. Attorney General Pam Bondi, who sits on the CRC, has appealed this decision, demanding that the ballot initiatives be reinstated.

Whatever the Supreme Court decides, Florida's constitutional revision process has gone off the rails. Ballot initiatives can play an important role in moving the ball on issues where legislators are way behind the voting public (see marijuana legalization) or soliciting popular opinion on major governmental changes. But to work, initiatives need to be clear, concise, and simple, so that voters understand what they are voting on.

Florida's CRC is asking citizens to behave like elected legislators, wading through regulatory minutia and weighing the pros and cons of logrolls they had no say in putting together. At best, this will result in confusion and frustration. At worst, it will lead voters to sign off on a policy they don't support in order to advance a policy they do.