Honoring the people’s vote: Will the state do what voters directed in Constitutional Amendments?

Constitution
Excerpt from 1885 Florida Constitution. Photo edited and used with permission. Credit: State Archives of Florida.

Florida voters approved 11 of the 12 proposed Amendments to Florida’s Constitution on Nov. 6, but in the days following, some residents and policy advocates wonder if Florida is destined to repeat its medical marijuana past.

Remember: In 2016, Florida voters went to the polls to legalize medical marijuana for people with debilitating medical conditions. But in the years since, the Legislature and the state Department of Health have fought to slow the progress of medical cannabis through onerous regulations and other measures.

“The Legislature has a history of attempting to undermine the will of the voters,” says environmental attorney Bonnie Malloy, who supported this year’s landmark state Constitutional Amendment 9, which bans offshore oil drilling in state waters.

Malloy’s organization – the nonprofit law firm Earthjustice – knows all about how the state  can ignore the will of the voters.

In 2014, 75 percent of voters approved the Water and Land Conservation Amendment. Under the Amendment, the state was supposed to use proceeds from an existing tax on real estate transactions to buy and manage conservation lands. When the state environmental agencies started using the money for salaries, equipment, and other things besides buying land, conservationists sued. The controversy is still in court, with taxpayers footing the bill.

So, how will the 2018 Amendments fare after getting approved?

It depends on how the Amendments are worded, Florida State University College of Law dean and administrative law professor Mark Seidenfeld says.

If an Amendment directs the state to enact a law, then it is up to the state to respect that law, Seidenfeld says.

Some of the Constitutional Amendments are “self-executing,” which means they have an effective date. That date helps to determine how the law will be implemented, Siedenfeld says.

If the Amendments do not have a date, then Seidenfield says the law will “presumably” take effect immediately.

The situation also depends on what state department or agency the Amendment addresses, which can get complicated when more than one issue is part of an Amendment.

For instance, Amendment 6 – commonly referred to as “Marsy’s Law” – paired an expansion of state Constitutional rights for victims of crimes with extending the retirement age for judges from 70 to 75.

So implementing this Amendment is up to the judiciary branch and it’s up to a review board or oversight committee to make sure the law is being respected, Seidenfeld says. But when Amendment 6 goes into effect, it could be tricky to figure out how Marsy’s Law applies to cases already pending, he says.

“There’s a lot of interesting questions there. I assume it’ll be applied on a case-by-case basis,” Siedenfeld says.

Both the American Civil Liberties Union of Florida and the League of Women Voters of Florida say they will be closely watching Constitutional Amendment 4 – the measure to restore the right to vote for certain felons who have done their time. Amendment 4 will spawn roughly 1.4 million new eligible voters.

ACLU of Florida president Howard Simon says Amendment 4 “may be a lot different than medical marijuana” because it is self-executing and doesn’t need additional legislation to enact it.

Simon had a direct hand in helping write Amendment 4 and says it was crafted “with the intention to exclude any role of politicians in determining who votes and who doesn’t in Florida.”

“When this provision goes into effect on Jan. 8, people with a former felony conviction – if they have served all the terms of their sentence – they should be encouraged to participate in our democracy by registering to vote,” Simon says.

(Simon, who is 75, postponed his retirement from the ACLU until after the November election to see how Amendment 4 fared.)

Patricia Brigham, League of Women Voters of Florida president, says the League also will be monitoring voter registration to make sure Amendment 4 is being upheld.

“We want to make sure that our volunteers with the League start registering these eligible voters,” Brigham says. “We are going to be proactive to make sure that those now eligible to vote because of Amendment 4 will be able to register.”

“We are going to be watching very closely to make sure that it is implemented properly,” Brigham says.

Florida Constitutional Amendment 9 bans offshore oil drilling and makes it illegal to vape (a form of e-cigarettes) indoors.

Bonnie Malloy, the Earthjustice attorney, says the group will monitor any legislative attempts to undermine the ban on offshore oil drilling. The Amendment doesn’t require any additional legislation to enact. But those who represent oil drilling interests are “strong and well-funded,” Malloy says.

She says that Florida’s environmental community will act as government watchdogs and will be poised to get out any information about attempts to combat the Amendment.

Other Amendments that passed by a supermajority vote (at least 60 percent) include giving voters control over deciding the future of gambling in Florida; requiring a Legislative supermajority vote to raise or impose taxes; giving certain death benefits to survivors of first responders, and altering how public officials become lobbyists.

The only Amendment to fall short of a supermajority vote was Amendment 1, which would have increased certain homestead property tax exemptions.

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