According to Miami attorney, Ben Pollara, if the GOP-controlled Legislature’s proposed changes to the state’s ballot initiative process become law, any future initiative would have an even bigger obstacle to overcome.
“It’s unfortunate because I think Floridians would legalize marijuana for adult use tomorrow if given the opportunity,” said Pollara, who helped run Orlando attorney John Morgan’s successful medical marijuana initiative in 2016.
“But the reality is that with this decision, combined with the recent [proposed] changes to the law … the chances of seeing something on the 2022 ballot are basically zero. And the chances of seeing something on a future ballot are also pretty damn close to zero.”
The ballot question would permit “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,” as well as allowing existing medical marijuana dispensaries to sell it.
However, in a 5-2 decision announced Thursday, the court ruled that the initiative’s language that it “permits” marijuana use by adults is misleading because the drug would still be illegal under federal law.
Opponents of the initiative “note that the proposed amendment itself states that it would only remove criminal and civil liability for the identified conduct ‘under Florida law’,” the five justices wrote.
“They thus argue that the … unqualified use of the word ‘[p]ermits’ affirmatively misleads voters into believing that the recreational use of marijuana in Florida will be free of any repercussions, criminal or otherwise.”
“We agree,” the justices wrote.
The ballot question needed Supreme Court approval to be placed on the ballot next year as part of the judicial review process.
In a lengthy dissent, Justice Alan Lawson wrote that the decision “underestimates Florida voters.”
Lawson wrote that there was no legal requirement that the ballot question language “provide an explanation of secondary ramifications of the proposed amendment” or explain “the current state of federal law.”
Almost half of the states in the U.S. have legalized or decriminalized recreational marijuana, including Virginia just on Wednesday.
The group Make It Legal Florida, backed by two of the biggest medical marijuana companies, MedMen and Parallel, has raised and spent almost $8.2 million since it began the campaign in August 2019.
The group had gathered 556,049 of the almost 900,000 signatures needed by February to get on the ballot. But the signatures are valid only for the current ballot language, which the group would now need to change.
Make It Legal chair Nick Hansen could not be reached for comment.
The group has faced criticism from other pro-marijuana groups, including a rival initiative campaign, that its proposed amendment limited sales and growing to established medical marijuana companies instead of fully legalizing it for anyone to grow or sell.
However, Nick Hansen has said his group’s initiative was consciously echoing the language of Morgan’s successful medical marijuana campaign in order to have a better chance of getting approved by the Supreme Court.
On Thursday Morgan said that the campaign should have followed his amendment’s language even more. The 2016 amendment included language stating it “Applies only to Florida law. Does not immunize violations of federal law or any non-medical use, possession or production of marijuana.”
Morgan’s original ballot amendment, proposed in 2013 and 2014, had nearly been struck down by the state Supreme Court “because of this very issue,” Morgan said. “So it was an easy fix if the lawyers had followed my playbook.”
Going forward, two bills currently making their way through the Legislature would make it much harder for citizen ballot initiatives to get approval.
One, the so-called “anti-John Morgan law,” would limit contributions to ballot initiative campaigns to just $3,000 from both individuals and corporations. Morgan said he believed that bill “is unconstitutional and will be struck down if passed.”
Another bill would raise the percentage of the total vote needed for ballot amendment approval from 60% to 66%. The 2016 medical marijuana amendment received 71% of the vote.
The Florida Chamber of Commerce praised the court decision in a statement Thursday.
“The Florida Chamber will fight in any venue – legislative, legal or the court of public opinion – to keep Florida Florida and ensure efforts to utilize ballot initiatives to circumvent the appropriate legislative process are unsuccessful,” Chamber president Mark Wilson wrote.