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Should Florida courts have less power to kick amendments off the ballot?

Florida has a rule saying you can't lie to the voters, or try to trick them, on the ballot.

Note the words, "on the ballot." If it were illegal to lie to voters the rest of the time, whoa, Nellie.

But the ballot is special.

You can't put something on there titled "Puppy Protection Amendment" or "Help Cute Little Bambi" if you're actually trying to promote puppy mills or deer hunting.

This is a pretty good rule. If we didn't have it, our ballot would become as deceptive and highly charged as all those campaign commercials we see on TV.

Yet we might be in for a change.

Our state Legislature has grown increasingly frustrated with the Florida Supreme Court for throwing its proposals off the ballot.

Last year alone, the Supreme Court struck down three out of six amendments to our state Constitution that the Legislature had proposed.

Three out of six!

One was a confusing tax break. One was a political swipe at the federal health care law. One was a blatant attempt to fool the voters.

Either the Legislature is lousy at writing constitutional amendments, or the Supreme Court is getting too frisky.

So the Legislature is ready to strike back this spring. It is a stated goal of our new House speaker, Dean Cannon. He went out of his way to criticize the court in his first speech:

[O]ver the past year three times we saw the work of a three-fifths super majority of this legislative branch, the elected representatives of over 18 million Floridians, demolished by five unelected justices of the Florida Supreme Court.

If we're lucky, the Legislature will come up with reasonable improvements.

If we're less lucky, we might see an attempt to choke off the Supreme Court. This would be bad for our democracy.

• • •

Here's one example of the court being right, and one of the court being wrong.

Last year the people of Florida petitioned to put two amendments for "fair districts" for politicians on the ballot. They were Amendments 5 and 6.

The Legislature fought back by putting put Amendment 7 on the ballot, with a title confusingly similar to the first two. But down in the fine print, Amendment 7 said that it would be "paramount" over anything else — it was a "poison pill" designed to wipe out the citizen amendments.

The Supreme Court rightly threw it off the ballot.

On the other hand, here's a case where the Supreme Court went too far.

In 2000, the court threw out a pro-death-penalty measure proposed by the Legislature after the voters approved it and it was in the Constitution.

Bizarre. The Supreme Court declared the Constitution itself to be invalid, based on the claim the voters didn't understand what they were doing when they amended it.

A recent briefing prepared for the Legislature identifies two fundamental problems with our process:

(1) Unlike citizen petitions, there is no preapproval or screening for amendments proposed by the Legislature. We pretty much wait until they are put on the ballot and see whether somebody sues.

(2) Once an amendment is ruled invalid, the only remedy is removal from the ballot. We can't fix a flawed amendment, even through minor changes, or by sending it back to the Legislature for repair.

Ironically, one way to address both problems is to give the Supreme Court even wider discretion.

But I suspect this is not what some folks in the Legislature have in mind. The other direction is to try to reduce or even eliminate the court's authority over the Legislature's ballot proposals.

And if one highly politicized, ideological branch of the government could write the Florida ballot without any check and balance — well, to borrow from the Bambi reference, it would be open season on the voters.

Should Florida courts have less power to kick amendments off the ballot? 01/29/11 [Last modified: Sunday, January 30, 2011 12:43pm]

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