Florida Justices Poised to Approve Recreational Pot Petition

Opponents of a petition to decriminalize recreational pot in Florida found a hostile state Supreme Court bench Wednesday in a case with big implications for the cannabis industry, Florida election law, and next year’s elections.

Though all seven justices were appointed by Republicans, the bench reserved tough questions—and outright disagreement—for the state attorney general and state chamber of commerce opponents of a petition to decriminalize marijuana. In the case that could narrow how ballot groups change state policy the justices pushed back against arguments that a “single-subject rule” for ballot measures shouldn’t both decriminalize and allow the sale of pot.

Ruling against the petition could turn “the single-subject requirement into nothing other than a strait-jacket for the people,” Justice Charles T. Canady said in oral argument. “We might think that the people would be making an unwise choice, but that’s a different question than whether the constitution prohibits them from effectively acting in this arena.”

Beyond pot policy, the decision holds national political implications. If the court approves the petition’s summary language, a recreational marijuana question could appear on a statewide Florida ballot with presidential, US Senate, and congressional races. That measure, along with an abortion rights petition under court consideration, could translate into a surge of youth and liberal votes.

‘Misleading’

The case centers around the special role the Florida Supreme Court plays in ballot measures.

Under Florida law, the state attorney general seeks advisory opinions on petitions’ summary language. The court approves summaries that aren’t misleading, and for which the measure doesn’t violate a “single-subject” rule.

The court addressed a similar case in 2021, ruling that a pot petition’s summary would mislead voters because it didn’t spell out that state decriminalization would not immunize Floridians from federal criminal penalties. This ballot group followed the court’s “road map” by specifically stating that federal law still can penalize the drug, said Josh Bash, a Quinn Emmanuel attorney representing petition group Smart and Safe Florida.

“How can it be that language seven members of this court said was a road map two years ago is now misleading,” he said.

The state argued that the word “allow” near the beginning of the summary could give voters the false impression that they’re not violating federal law when possessing or purchasing pot because a statement about how there’s no immunization against federal sanction comes at the end, said Jeffrey P. DeSousa, chief deputy solicitor general. He also argued the language gives a false impression that pot will broadly available under state licensed facilities—something up to the Legislature.

Marijuana technically isn’t “allowed” at all because of federal enforcement, he said.

“What they should probably have said is the amendment eliminates state laws and liability for use of marijuana,” he said. “They don’t want to do that because it’s less sexy to voters.”

Justice Meredith L. Sasso pushed back against Bash, questioning the use of the word “allow,” saying it’s “inaccurate.” Bash said voters are expected to read the summary language in total, so voters shouldn’t be confused about the murky interplay between a federal government that criminalizes pot and the states that permit it.

Chief Justice Carlos G. Muñiz, and justices Canady and John D. Couriel, indicated some outright disagreement with DeSousa’s argument.

“We’re kind of having a super-lawyerly discussion about ‘allow,’” Muñiz said. “But we’re talking about a ballot summary. You read it generally.”

Beyond Pot

The Florida Chamber of Commerce waded into the argument for a broader purpose: an attempt to narrow voters’ ability to make sweeping policy changes through the ballot measure system.

“The Florida Constitution isn’t the place to make policy changes, that’s the providence of the Legislature,” said the chamber’s lawyer Samuel J. Salario of Lawson Huck Gonzalez.

His argument, opposing the petition, sought to have the justices sharpen the “single-subject” rule to require provisions have a “direct inference from the other.” If not, a campaign would have to break amendments up into two or more petitions, each separately going through the signature-gathering process.

This case is a chance for Florida’s originalist court to recede from a lenient test for ballot measures, Salario’s law firm partner, Jason Gonzalez said in a text message.

“If the Court returns to the text of the constitution and properly applies the very narrow single subject requirement, it will be difficult for amendments with multiple subjects that out to be addressed by the Legislature to find their way into the Constitution through the petition process.”

The case is Advisory Opinion to the Attorney General Re: Adult Personal Use of Marijuana, Fla., No. SC2023-0682, 11/8/23.