Florida marijuana legalization dealt blow by Florida Supreme Court

Justices found a Constitutional ballot initiative to be “misleading.”
Make it Legal Florida is a campaign to get a constitutional amendment on the ballot legalizing adult use of recreational marijuana in Florida.
Make it Legal Florida is a campaign to get a constitutional amendment on the ballot legalizing adult use of recreational marijuana in Florida. [ Make it Legal Florida ]
Published April 22, 2021|Updated April 23, 2021

TALLAHASSEE — A high-profile effort to legalize marijuana was all but killed by the Florida Supreme Court Thursday.

In a 5-2 decision, justices ruled a Constitutional ballot initiative by the group Make it Legal Florida to be “misleading.” The ruling came after Attorney General Ashley Moody asked the justices to advise whether the potential Constitutional initiative would be suitable for a future ballot.

Make It Legal’s proposal would have left it up to Florida voters to decide whether to allow Floridians older than 21 to possess and use up to 2.5 ounces of marijuana. The initiative’s sponsor, backed by the Florida medical marijuana industry, had raised $8.2 million for the effort. They had also gathered more than 556,000 signatures out of the 891,589 needed for the measure to make the 2022 ballot.

Had it made the ballot, the initiative would have needed 60 percent of the vote to be added to the state Constitution.

If they want to make a future ballot, Make It Legal Florida would now have to redraft their amendment and start from scratch.

Make It Legal’s attorney, George Levesque, referred a request for comment to Nick Hansen, the organization’s chairman. Hansen did not respond to requests for comment.

In an unsigned opinion, five of the seven justices took issue with Make it Legal Florida’s use of the word “permit” in their initiative’s ballot summary. The justices argued that the amendment did not effectively advise Floridians that although marijuana use would be allowed under state law if the amendment were to pass, it would still be illegal federally.

“A Constitutional amendment cannot unequivocally ‘permit’ or authorize conduct that is criminalized under federal law,” Canady wrote. “A ballot summary suggesting otherwise is affirmatively misleading.”

Similar issues have previously come before the Florida Supreme Court. When it was considering whether to allow an amendment legalizing medical marijuana onto the 2016 ballot, the backers of that initiative avoided this pitfall, Canady wrote. The sponsors of the 2016 measure noted in their ballot summary that their initiative did not “immunize” Floridians from “violations of federal law.”

Justices approved that ballot’s language unanimously, and 71 percent of the electorate voted to legalize medical marijuana in 2016.

According to Florida law, summaries of proposed Constitutional amendments provided to voters can be no longer than 75 words. Juan-Carlos “J.C.” Planas, an attorney in Miami who specializes in the area of state law that deals with Constitutional ballot language, said the decision by the Court on Thursday worried him. He said the Court essentially argued Make It Legal Florida should have found a way to explain the federal consequences of a state proposal — along with everything else in the initiative — in just a few dozen words.

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“I almost gagged reading it,” Planas said of the opinion. “I don’t care about the marijuana per se. My issue is, how the hell do you craft a Constitutional amendment now?”

Ben Pollara, who ran the 2016 medical marijuana campaign, said the Court’s decision Thursday reflected the body’s shift rightward under Gov. Ron DeSantis.

Three justices on the Court appointed by DeSantis voted to strike Make It Legal Florida’s initiative from the amendment. The Florida House and Florida Senate — both controlled by Republicans — also filed briefs to the Court opposing the initiative.

In a hearing last year, the Court also appeared to be skeptical of a different, less well-funded marijuana proposal which sponsors were hoping to put on the 2022 ballot.

“Floridians would legalize marijuana tomorrow if given the opportunity to do so, but that’s clearly not what Tallahassee wants,” Pollara said in a statement.

Meanwhile, Moody’s office praised Thursday’s opinion.

“We thank the Florida Supreme Court for their time and attention to this issue and respect their ruling,” a Moody spokeswoman said in a statement. “Floridians must fully understand what they are voting on when they go to the ballot box.”

The decision comes at a time when attitudes about marijuana legalization are changing quickly across America.

In 2021 alone, four states have moved to legalize the drug for recreational use: New Jersey, New York, Virginia and New Mexico. At least 17 states and Washington D.C. have legalized the recreational use of the drug.

Florida, by comparison, is much more hostile to expanded use of cannabis. The state’s laws include some of the harshest criminal penalties for possession of the drug. An effort to make it easier to remove a marijuana conviction from a Floridian’s criminal record has passed the Senate, but it’s gained no traction in the House. And until this week, the Florida House was moving to cap the amount of the main psychoactive ingredient in medical marijuana — Tetrahydrocannabinol (THC).

Republican leaders of Sunshine State have also proven to be hostile to citizen ballot initiatives in general. Two bills making their way through the Legislature, Senate Bill 1890 and Senate Joint Resolution 1238 would limit Floridians’ ability to change the state Constitution via a ballot initiative.

SB 1890 and its House companion bill, HB 699, would limit the amount of money someone could contribute in support or opposition to an effort to get an initiative on the ballot. The Senate version of that bill has passed; it’s awaiting a vote in the House.

SJR 1238 and its House companion, House Joint Resolution 61, would leave it up to voters to decide whether they want to make it harder for the electorate to directly change Florida’s Constitution. The law would increase the threshold for a Constitutional change from 60 percent support to two-thirds support. This effort is stuck in a committee in the Senate, and it’s awaiting a vote in the House.

In 2020, Florida voters defeated a measure which would have raised the bar for a Constitutional measure’s passage. A majority of voters decided against Amendment 4, which would have required that the electorate pass a Constitutional amendment with 60 percent support in two elections.