On April 22, 2021, the Florida Supreme Court ruled that a proposed citizen ballot initiative regarding recreational use of marijuana would impermissibly mislead Florida voters and thus could not appear on the 2022 ballot. In response to a petition from the Florida Attorney General questioning the validity of the initiative, the Court focused on whether the initiative satisfied the requisite legal requirements and found that the ballot summary was affirmatively misleading.
Advisory Op. to the Att’y Gen. re: Adult Use of Marijuana (Adult Use), SC19-2116 (April 22, 2021).
When reviewing the validity of citizen ballot initiatives, the Court evaluates whether an initiative adheres to the single subject mandate of the Florida Constitution and whether it complies with clarity requirements outlined in Florida Statute. Florida Constitution article XI, sect. 3; F.S. § 101.161. Review of initiative clarity includes review of the initiative title and summary that will appear on the ballot before voters. The Court’s review is limited to investigation of these aspects
and it must find that the proposed amendment is “clearly and conclusively defective on either ground” to rule the proposed amendment invalid. Adult Use, SC19-2116 at 5 (quoting Advisory Op. to Att’y Gen. re Amendment to Bar Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d 888, 891 (Fla. 2000)).
Sponsored by Make It Legal Florida, the amendment would have permitted adults (ages 21 and older) to possess, display, and purchase marijuana (a maximum amount of 2.5 oz.) for recreation use under Florida law. The ballot summary stated that the amendment “[p]ermits 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.” Adult Use, SC19-2116 at 4. Make It Legal Florida submitted the only brief in support of the initiative. A number of parties submitted briefs in opposition to the initiative, including Florida state legislative bodies, numerous drug-free coalitions, and industry groups.
In the evaluation of clarity, the Court focused on the lack of a descriptive qualifier in the ballot summary that would have signaled criminal and civil liability was only removed under Florida law—recreational marijuana use remains illegal under federal law. The Court found the discrepancy between the actual amendment language (including the notation that it was only permitted under Florida law) and the ballot summary (using “permits” as broad language without additional specificity about the divergence between state law and federal law) to affirmatively misled the voter about the relationship between state law and federal law. Adult Use, SC19-2116 at 8-9. The Court distinguished the Adult Use Marijuana initiative from two previous marijuana-related citizen initiatives, addressing use of medical marijuana, in which the ballot summaries included language specifically referencing Florida law and were found as valid by the Court. Adult Use, SC19-2116 at 10-13.
Notably, Justice Lawson dissented with an opinion and Justice Labarga also dissented. Justice Lawson’s dissent focused on precedent requiring ballot summaries to accurately communicate changes in Florida law that would occur should the amendment be adopted, but did not require summaries to address additional issues, such as federal law. Adult Use, SC19-2116 at 22. Justice Lawson concluded that the majority decision added hurdles to the citizen ballot initiative process and underestimated Florida voters. Adult Use, SC19-2116 at 37.
