State Supreme Court rules last three disputed amendments will stay on the ballot

Members of the Constitution Revision Commission listen to citizens at a town hall meeting in Miami on April 16, 2017. The state Supreme Court ruled Wednesday that the last three disputed amendments proposed by the panel will remain on the ballot for the Nov. 6 election, just three weeks away.

The ballot is set: Floridians will indeed vote on 12 constitutional amendments come November, after a final challenge to three proposed amendments was definitively struck down Wednesday by the state’s highest court.

In a ruling issued Oct. 17 — just three weeks out from the election — the state Supreme Court backed retaining the trio of “bundled” amendments proposed by the Constitution Revision Commission, overruling arguments that the group’s practice of rolling together different proposals into singular ballot items was illegal.

That means voters will decide, among other items, whether to provide college tuition to survivors of first responders and military killed in action and whether to allow some changes in criminal law to apply retroactively to crimes committed before the law was changed. They will have to decide multiple issues with a single vote, such as approving a ban both on vaping indoors and drilling for oil and gas in state waters — or voting no on them in tandem.

Though not all justices agreed that the “logrolling” practice was sound, all concurred with the decision to reverse a circuit court ruling that had knocked those items off the ballot.

The original challenge addressed all six “bundled” proposals from the constitutional commission, but the high court’s decision only affected half because it had already ruled last month on the legal status of the other three.

The three amendments that had remained in dispute:

▪ Amendment 7, which would pull together three proposals, providing college tuition for the survivors of first responders and military members killed on duty; requiring university trustees to agree by a two-thirds super-majority to raise college fees (not including tuition); and establishing the state college system in the Florida Constitution. Universities are in the state Constitution, but state colleges (also known as community colleges) are not.

▪ Amendment 9, which would require voters to approve both a ban on oil and gas drilling in state-owned waters and add vaping to the indoor smoking ban — or reject both.

▪ Amendment 11, which would remove a provision from the state Constitution that stops “aliens ineligible for citizenship” from owning property. It also would remove wording approving a high-speed rail system. Voting for the amendment would — in addition — remove the state’s Savings Clause, which prohibits retroactively applying the amendment of a criminal statute to sentencing for a crime committed before the change, and clarify that repealing a criminal statute would not necessarily affect the prosecution of that crime committed before the repeal.

In its majority decision, backed by four justices, the court said the plaintiffs’ petition should not have been granted by the lower court.

The court’s majority also held that the amendments “are not defective for bundling independent and unrelated measures. Finally, we hold the ballot language of Amendment 11 does not mislead voters with respect to the amendment’s legal effect.”

In a second, concurring opinion, the remaining three justices — Barbara Pariente, Peggy Quince and R. Fred Lewis — did not dispute the ruling, but took issue with commission’s decision to roll proposals together.

“Bundling multiple, independent and unrelated proposals in this way makes the task of voting significantly more difficult for Florida’s citizens, requiring them to decide — in addition to weighing the independent merits of each proposal — whether voting in favor of one proposal they approve of is worth also approving a proposal they do not favor,” Pariente wrote. “Voters should not be required to exercise their all-important authority to amend the constitution under these restrictions.”

Retired Florida chief justice Harry Lee Anstead and former Florida Elections commissioner Robert Barnas had brought the lawsuit before the state’s high court in August. In that petition, they argued that the six “bundled” amendments brought forward by the CRC unconstitutionally prevented voters from deciding on each proposal individually. The three that the court ruled on Wednesday were the only ones that still had outstanding challenges under that petition.

“This is logrolling and a form of issue gerrymandering that violates 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,’’ they wrote at the time. “All [amendments] are beyond the power the Constitution has bestowed upon the Constitution Revision Commission and must be removed from the ballot.”

But the high court declined to accept the case and kicked the suit down to lower courts, where a Leon County circuit judge ruled that three of those amendments be struck from the ballot, prompting the state to appeal back up to the justices.

Though the state Supreme Court accepted jurisdiction the second time around, it withheld any decision on oral arguments for weeks. During that time, Hurricane Michael devastated the Florida Panhandle and the court was closed for days.

In a practical sense, the ruling has little bearing on what millions of Floridians’ ballots will actually look like because deadlines for printing ballots have already passed. But the decision closes the door definitively on what voters will determine at the polls Nov. 6.

The state noted that fact in a reply brief at the end of September, saying that the point to actually remove an amendment had already passed. To remove an amendment after that “would effectively invalidate otherwise legally cast votes,” they contended, and “disrupts the integrity of the election process and invites far more voter confusion than bundling ever could.”

Brecht Heuchan, the chair of the commission’s powerful Style and Drafting committee that packaged the amendments, said Wednesday’s decision ends months of legal disputes he did not expect over the committee’s bundling.

“The bundling issues have been talked about ad nauseam at this point,” he said, adding prior commissions had grouped items together as well. “Voters make choices every single election, and as consumers, we make choices every single day about things we like and things we don’t like.”

“We did our job,” he added of the commission. “Now the voters get to do their job.”

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Republished by the Law Office of Scott A. Ferris, P.A.