Saying First Amendment arguments raised by opponents are “irreconcilable with our constitutional history,” Attorney General Pam Bondi’s office Monday asked the Florida Supreme Court to overturn a ruling that could block at least three proposed constitutional amendments from going on the November ballot.
Bondi’s office filed a 44-page brief in a battle focused on proposed amendments that the Florida Constitution Revision Commission approved this spring. Leon County Circuit Judge Karen Gievers ruled Sept. 5 that the proposals should not go on the ballot because they improperly “bundled” unrelated issues.
In doing so, Gievers sided with arguments raised by former Supreme Court Justice Harry Lee Anstead and fellow plaintiff Robert J. Barnas, who contend the bundled proposals would violate voters’ First Amendment rights. That contention stems from voters potentially having conflicting opinions about issues in the same proposal.
But the brief Monday assailed that argument, describing it as a “novel constitutional theory.” The brief pointed, for example, to state and federal constitutional changes that bundled different issues.
“In short, our constitutional history is replete with examples of situations in which voters have been asked to vote up or down on bundled provisions addressing distinct rights and issues —- including the ratification of the Constitution and the First Amendment,” the brief said. “This longstanding historical practice militates against any suggestion that the First Amendment requires arguably unrelated provisions to be adopted on a piecemeal basis.”
Anstead and Barnas last month challenged six proposed amendments approved by the Constitution Revision Commission, a 37-member panel that meets every 20 years and has unique power to place measures on the ballot. Gievers’ decision in the case focused on three amendments because the other three were subjects of separate challenges at the Supreme Court.
But the brief filed Monday by Bondi’s office indicates the case could lead to invalidating more than the three amendments addressed by Gievers. A footnote in Gievers’ ruling said her findings “apply to all 6 of the proposed amendments” but that because of the other challenges “(no) further opinion will issue here as to those amendments.”
The three proposals blocked by Gievers included a measure that would ask voters to ban offshore oil drilling and vaping or the use of electronic cigarettes in workplaces. Gievers rejected the suggestion that the oil-drilling and vaping proposals could be considered related.
“The court is unconvinced by the respondent’s (state’s) argument that offshore oil and gas drilling and vaping are germane as they are both environmentally related,” she wrote. “These measures are independent and unrelated and do not constitute a comprehensive plan of revision and cannot be imposed upon the voters as a unit. Voters cannot reasonably answer the statutorily required yes or no question … without potentially being deprived of their First Amendment constitutional right to cast a meaningful vote on each independent and unrelated proposal.”
Along with the proposal on oil drilling and vaping, Gievers struck from the ballot a measure that deals with governance of the state-college system and death benefits for survivors of first responders and military members. Also, she struck a measure that would remove constitutional language that prohibits “aliens ineligible for citizenship” from owning property and would revise language to make clear the repeal of criminal statutes does not affect the prosecution of crimes committed before the repeal.
With vote-by-mail ballots going out to some voters this week —- and the Nov. 6 election less than two months —- the Supreme Court is moving quickly in the case. The state appealed Gievers’ ruling to the 1st District Court of Appeal, which passed it along to the Supreme Court.
The state’s brief Monday raised a series of legal issues in addition to arguing that the First Amendment should not block the proposed amendments. Among those arguments was that Anstead and Barnas waited too long to file the challenge.
The Supreme Court this month rejected one of the other constitutional amendments that Anstead and Barnas challenged, though the legal issues in the cases differed. That amendment dealt with charter schools and other education subjects.
Justices, however, upheld the other two measures that Anstead and Barnas challenged —- again, in cases that involved other legal issues. Those measures deal with crime victims’ rights and charter county governments.