Marijuana Ballot Initiatives

Florida Supreme Court Nixes Pot Legalization Initiative, Worrying That Voters Might Think It Repeals Federal Prohibition

By the court's logic, the ballot summaries for many successful legalization initiatives were "affirmatively misleading."

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The Florida Supreme Court today nixed a proposed 2022 marijuana legalization initiative, saying the ballot summary "misleads voters into believing that the recreational use of marijuana in Florida will be free of any repercussions, criminal or otherwise." That highly implausible reading is based on the assumption that Florida voters would believe they had the power to change federal law by approving a state ballot initiative.

The ballot summary for the Florida Marijuana Legalization and Medical Marijuana Treatment Center Sales Initiative says it "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." Not so, the court says in a 5–2 advisory opinion, since such conduct would still be prohibited by federal law. In reality, the initiative only eliminates civil and criminal penalties under state law.

"A constitutional amendment cannot unequivocally 'permit' or authorize conduct that is criminalized under federal law," the majority says. "And a ballot summary suggesting otherwise is affirmatively misleading."

That view jibes with the position taken by Florida's Republican attorney general, Ashley Moody, who sought the advisory opinion. "This initiative suggests to voters that their vote will allow for conduct that will remain illegal with significant penalties," she said.

Under the standard favored by Moody and the court, the ballot summaries for many legalization initiatives that voters in other states have approved in the last decade likewise were "affirmatively misleading." Colorado's 2012 initiative, the first successful measure of its kind, was described as "permitting a person twenty-one years of age or older to consume or possess limited amounts of marijuana." The summary for Alaska's 2014 initiative said it "would allow a person to possess, use, show, buy, transport, or grow set amounts of marijuana."

California's 2016 initiative purported to achieve "marijuana legalization," which according to the Florida Supreme Court was blatantly inaccurate in light of continued federal prohibition. Michigan's 2018 initiative aimed to "authorize and legalize possession, use and cultivation of marijuana products by individuals who are at least 21 years of age." Voters who approved Arizona's 2020 initiative were told it would "allow limited marijuana possession, use, and cultivation by adults 21 or older."

I could go on, but you get the idea. Did voters in these and other states imagine that by approving these initiatives they were somehow amending the Controlled Substances Act, removing marijuana from the list of federally prohibited drugs? Probably not.

The ballot summary for the medical marijuana initiative that Florida voters approved in 2016 said it "allows medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician." According to the logic of today's opinion, that language was "affirmatively misleading" because it failed to note that the federal government does not allow marijuana use for any purpose.

Under the court's precedents, Justice Alan Lawson says in his dissent, judicial review of ballot language "presumes that voters possess a rudimentary knowledge of their government's structure and of the laws governing their conduct." That means they "know what constitutes a federal crime" and recognize that "no state law—not even a state constitution—can override federal law." Lawson calls the majority's assumption of voter ignorance a "direct violation of the deferential, nonpaternalistic rules and presumptions that have historically governed our decisions in this area."

State law requires that ballot summaries "explain the Florida constitutional change—with no requirement that the summary provide an explanation of secondary ramifications of the proposed amendment," Lawson says. "Accordingly, we have '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.'…It should be intuitively obvious to most that the majority's condemnation of this summary for not explaining federal law is logically irreconcilable with…our precedent stating that the summary need only explain the Florida constitutional change being proposed."

Lawson notes that "the proposed amendment itself expressly states that certain actions are 'permitted,'" while "the ballot summary says that the amendment '[p]ermits' those actions….In an extraordinarily rare occurrence for this Court, we are declaring a summary to be misleading even though it accurately describes the effect of the amendment using the same operative language as used in the amendment itself." He concludes that "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."

Make It Legal Florida, the organization backing the initiative, "had raised $8.2 million for the effort and had gathered more than 556,000 signatures out of the 891,589 needed for it to make the 2022 ballot," The Miami Herald reports. Legalization supporters will now have to start over.

Ben Pollara, who ran the successful 2016 campaign to legalize medical marijuana in Florida, said today's opinion reflects the influence of the three justices appointed by Republican Gov. Ron DeSantis, all of whom joined the majority. Recent polls put public support for legalization in Florida near or above 60 percent, the threshold for constitutional amendments. "Floridians would legalize marijuana tomorrow if given the opportunity to do so," Pollara said, "but that's clearly not what Tallahassee wants."

NEXT: How Press Freedom—and Section 230—Led to Derek Chauvin's Conviction

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  1. The elites know what is best. Right, tony?

    1. You mean, elites like half the commenters here want to overturn Chauvin’s verdict?

      1. No, not what I meant at all.

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  2. FlaSC: “dudes. Florida Man is even stupider than you think.”

  3. As a health precaution I smoke nothing, but I sure wish that government thieves would stop stealing my money to pay even more government criminals to harass harmless weed smokers.

    Receiving government pay and benefits is receiving stolen property.

  4. Down at the mall, where the boas crawl
    Ted makes love to a concrete wall
    His brother Red said his Uncle Ned
    Found Elvis in a loaf of bread

    Florida man (Florida man)
    Florida man (Florida man)
    Florida man (Florida man)
    Florida man

  5. Just De-schedule it federally and let the states figure it out.

    1. Shit. Just stop the Federal Government from exercising powers it doesn’t have! The constitution doesn’t give the feds the power to regulate drugs, which is why an amendment was neccessary to prohibit alcohol. Drug Prohibition is completely unconstitutional.

      1. That used to be the case until SCOTUS was enlightened to the proper reading of the interstate commerce clause, as elucidated in Wickard v. Filburn and its progeny. Those cases comprise some of the most contemplative and consistent jurisprudence this country has ever seen (contemplative because the tortured logic induces a headache if you think about it, and consistent in the trajectory of expanding federal power).

  6. Yeah but I hates to tells ya, you can be legal in your state and still

    – get fired from your company for smoking pot
    – get arrested for DUI days after smoking pot
    – get prosecuted for lying on one of many federal forms (except if you’re the president’s son) for smoking pot
    – lose out on government contracts for having a previous conviction
    – get sniffed by a drug dog at any airport because they are federal not state and still get arrested even if legal in that state
    – even lose your passport, or get kicked out of the country if you’re visiting because of a prior conviction

    So yeah the FSC is making some sense here, but also until federal law changes you’re on the hook for it.

    1. So yeah the FSC is making some sense here, but also until federal law changes you’re on the hook for it.

      You’re an idiot.

      The FSC makes no sense and neither do your examples.
      Half the things you list arent even criminal penalties.
      Jesus Christ life must be hard when you are this stupid

    2. Drugs are bad mmkay.

  7. That highly implausible reading is based on the assumption that Florida voters would believe they had the power to change federal law by approving a state ballot initiative.

    Oh, FFS! Why not assume that Florida voters would believe they had the power to rain fire and brimstone by approving a state ballot initiative? Or, on a more positive note, why not assume that Florida voters would believe they had the power to cure cancer by approving a state ballot initiative?

  8. The court is right. The language is misleading.

    Writing 50,000 words doesn’t change that fact.

    1. The court is right. The language is misleading.

      Nothing was misleading.

      You’re just a moron.

  9. 5 out of 7 Florida judges agree – Floridians are a bunch of gutless morons

  10. Speaking of intellectual consistency (or lack thereof), Sullum, when do we get your multiple columns calling for Maxine Waters’ impeachment for inciting violence like Trump?

  11. It would be easy enough to get signatures on a petition with a wording revised to reflect this understanding. One that just references Florida law.

  12. What a surprise…yet more conservative justices who just ignore the rules and precedents and just decide the law is whatever fits their ideology.

    It’s Calvin-ball all around when it comes to conservative jurisprudence.

    1. Yeah… That’s the problem. Those conservatives.

      How do you make that eye roll emoji?

      Kagan thinks the constitution allows the federal government to force you to buy broccoli. Go back and read the constitution again, and focus on the 9th and 10th amendments. Now tell me again how “whatever fits their ideology” is a conservative thing.

  13. Florida gonna Florida

  14. To be fair, there are a lot of old folks in Florida and old people, like politicians of all ages, are easily confused.

  15. You cannot have something both legal and illegal, prohibited and licensed.

    So long as Marijuana remains federally illegal, the states do not have the power to legalize it. The court is right. The federal power overrules the states, and it is still illegal.

    1. I mean, to the extent that there is such a thing as illegal guns or immigrants. The statutes are enacted, enforced, and upheld, but it takes a severely corrupt reading of the constitution to allow the feds to legislate about any of those three things.

      However, Americans are authoritarian collectivists who deserve to be stomped by an iron boot, so there’s that too.

    2. The legality shifts to just federal jurisdiction. Instead of traffic stops leading to searches that lead to drug arrests it only comes into play when something federal is involved. Such as airport security checks. Or filling out a firearm background check form.
      And it may be easier for 50 states to have it legal before that becomes a federal reality.

  16. Frankly, the court is probably right. Voters are obviously stupid, I mean, Trump then Biden.

  17. In related news, David Stockman knocks it out of the park.

    In the most recent year of complete data (2018), there were 9.3 million arrests in the US excluding traffic enforcement charges of DUI. Yet among this massive number of arrests, those involving serious crimes against persons and property accounted for just 521,000 or 5.6%. These included:

    Negligent murder and manslaughter: 11,970;

    Rape: 25,205;

    Armed robbery: 88,128;

    Aggravated assault: 395,800;

    That’s it. That’s the contribution to core public safety delivered by the 850,000 sworn law enforcement officers in the USA—about 0.6 arrests per year for serious crimes per law enforcement officer.

    As for what they were doing the rest of the time and the other 8,777,000 arrests that occurred in 2018, we can say this: They clearly provided more occasion for conflict between citizens and the gendarmes and for policing actions to go haywire, as in the George Floyd case, than any additional increments of public safety.

    After all, the single largest category of arrests in 2018 was for drug abuse violations, which totaled 1,654,282.

    This is what you get when you augment the Nanny State with militarized police department goon squads. And there’s bipartisan support for it, both the “law and order” right and the “let’s see if we can’t stir up a race war” left agree we got to keep cracking those skulls.

    1. One problem with this analysis, property crimes should be prosecuted and he lumps that in with pointless arrests.

  18. FFS Since ignorance of the law is no excuse, why do those judges pretend to care about ignorance as the judicial presumption has been that the voters should know the laws and as such, the limitations of the legalization. Total bullshit.

    1. It is extra funny because most of these summaries are written upside down and backwards in order to push people into voting the way that the framer of the summary wants.

      We Floridians have seen several excrable amendments that pretended to do one thing but in fact did the exact opposite. Usually these things have to do with unions or expanding government power.

  19. Florida voters already abolished daylight savings time. Yet we still change our clocks back and forth.

    Turns out, even changing the constitution doesn’t seem to create an obligation among the courts or within the government writ large.

  20. The Federal prohibition only stands because Gonzales v. Raich was (wrongly) decided, with the “liberal” wing of the Supreme Court voting in lockstep for Moar Federal Authoritah, and the “conservative” wing split between “drugs are bad!” and “take Federalism and the 21st Amendment seriously.”

    Note that Scalia and Thomas split on this case, with Scalia voting for Moar Federal Authoritah and Drugs are Bad! while Thomas dissented. If Thomas had had his way, pot legalization would have been thrown to the States.

    1. Yeah… If you are not at least a textualist, you have no business on the court. If you cannot agree that the letter of the law supercedes policy or political objectives, you should never be trusted to judge the law.

      There are plenty of edge cases where political philosophy can come in to play…. But almost all of modern jurisprudence is in direct contradiction to the actual letter of the law.

      You might hold the position that “make no law”, “shall not be infringed” or “reserved to the states and the people” are far too restrictive. But that is the black letter law. If you cannot simply read and apply that, you should never be trusted on the court.

      Even if the result would be bad policy outcomes that force changes to the constitution. Better we have honest and understandable laws than trusting that 9 of our betters will bend and twist the law in the interest of all that is just and holy.

  21. “The law is an ass” – Charles Dickens

  22. Just De-schedule it federally and let the states figure it out.

  23. “Recent polls put public support for legalization in Florida near or above 60 percent, the threshold for constitutional amendments. “Floridians would legalize marijuana tomorrow if given the opportunity to do so,” Pollara said, “but that’s clearly not what Tallahassee wants.”

    Unfortunately supreme court justices in Florida are appointed for by the governor for 6 year terms, so no direct accountability to the voters And politicians will continue to be anti marijuana as long as they think it will get them votes from their particular constituency.

    State supreme court judges are elected.

    1. Florida Supreme Court justices must face a retention vote by the end of their term in order to stay on the bench. That is some accountability to voters, but not much, since few voters pay any attention to those races. A majority of votes cast is all it takes to be retained. (Meaning the Yes votes for retention outnumber the No votes. Voters that leave it blank aren’t a factor.)

      The history of how FL ended up with appointed appellate judges and state Supreme Court justices is what you would expect. It was from the obvious dangers of corruption when judges need to raise campaign cash to win elections against other candidates. There were many examples of such corruption in the 60’s and 70’s in Florida, so they ended up with the current system. A commission (with members chosen by the state legislature, I believe) vets and suggests 3 to 6 potential judges, and the governor picks from among those candidates. They then face retention votes in general elections. If they fail the retention vote (or choose not to seek retention), then the seat becomes open for another appointment by the governor.

  24. One thing overlooked in this is how the Florida GOP has fought tooth and nail against the initiative process here for decades. Many public school classrooms were badly overcrowded in poor neighborhoods, so fed-up parents got a class-size amendment passed. Jeb! Bush and the GOP legislature found ways to undercut that in all kinds of absurd ways. For instance, they passed laws declaring that only “core academic classes” needed to be subject to the amendment, despite no such language existing in the amendment. They then defined “core academic classes” extremely narrowly. For instance, the physics classes I teach are “electives” under the class size amendment, because students don’t need to specifically take physics as one of their 3 science credits for H.S. graduation. [I’ve also taught chemistry with over 30 students in my classroom. It is fine to have a debate about what the research has to say about the correlation between student test scores and class size, but when it comes to science, at least, more than 24 students in one classroom becomes dangerous. Every organization that monitors and trains educators for lab safety has said that exceeding 24 students in one lab room is an unacceptable additional risk of lab accidents.]

    Long story short, the Florida GOP legislature doesn’t want citizens to bypass them. They can put proposed amendments on the ballot quite easily, but they are doing everything possible to make citizen-driven amendments harder and harder to get a vote. The most recent thing is the “anti-John Morgan” bill that would make it illegal for either an individual or corporation to donate more than $3000 to getting a ballot proposal on the ballot and campaigning in its favor. It is getting this nickname after Florida attorney’ John Morgan spent so much of his own money to get medical marijuana on the ballot.

    Just goes to show you that for all of their talk about “the elite”, conservatives don’t really want the little people making decisions. They want the power for themselves just as much as the left does.

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