Jim Saunders, News Service of Florida
Published 8:59 a.m. CT April 28, 2020

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TALLAHASSEE — With a hearing next week in the Florida Supreme Court, backers of a proposed constitutional amendment that would allow people to use recreational marijuana are disputing arguments by the state Senate that a new law should help block the ballot initiative.

Attorneys for the political committee Make It Legal Florida filed a 28-page brief Monday at the Supreme Court that said the Legislature could not erect new legal barriers to the proposed amendment, saying “this train left the station long before” the controversial law passed in March.

The law, signed by Gov. Ron DeSantis, takes a series of steps to try to make it harder to pass ballot initiatives, including calling on the Florida Supreme Court to consider whether proposed amendments are “facially invalid under the United States Constitution.” The Senate this month filed a brief saying the new law bolsters arguments the Supreme Court should block the ballot proposal because it conflicts with federal laws that make marijuana illegal.

The Supreme Court plays a gatekeeper role on ballot initiatives to make sure they meet legal standards before going to voters. Justices will hold a hearing on the recreational marijuana proposal May 6.

In the filing Monday, Make It Legal Florida attorneys George Levesque and Ashley Hoffman Lukis wrote that the law cannot be applied retroactively to the recreational-marijuana proposal, which qualified for a Supreme Court review in December based on petition signatures.

But even if the law could be applied retroactively, the attorneys wrote, the recreational-marijuana proposal, which could go on the 2022 ballot, does not conflict with the U.S. Constitution or federal laws.

“If passed, the amendment would decriminalize the sale and possession of marijuana under Florida law within the limited contours of the amendment,” the brief said. “This change in state law would reflect a rational and permissible policy choice by Florida voters to cease using the state’s limited resources to prosecute conduct that is currently unlawful. The amendment does not mandate any Floridian to violate federal law. Nor does it have any effect on federal law enforcement, or purport to immunize Floridians from violations of federal law — nor could it. Simply put, divergent policy choices by the state and federal government with regard to the criminalization of certain conduct does not establish a facial violation of the United States Constitution.”

Opponents of the initiative, including the Senate, House, Attorney General Ashley Moody and the Florida Chamber of Commerce, have attacked the proposed amendment in recent months because of the potential conflict with federal drug laws, contending that the measure doesn’t adequately inform voters of the conflict and would be misleading.

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But the Senate has gone further, tying that argument to the new law’s requirement that the Supreme Court look at whether ballot initiatives are invalid under the U.S. Constitution. The Senate argues the marijuana measure would violate the U.S. Constitution’s “Supremacy Clause,” which generally involves federal laws trumping state laws.

“The passage of (the new law) clarifies the scope of the court’s review and opens the door for the court to consider the inability to comport with federal law,” Senate attorneys wrote in an April 20 brief. “Because the initiative is facially invalid under the U.S. Constitution, the court should remove it from the ballot.”

While opposed to the amendment, Moody has diverged from the Senate on using the new law to try to block it. In a filing last week, Moody’s office said justices should not consider whether the initiative runs afoul of the U.S. Constitution.

“Because the misleading ballot language provides an adequate and independent ground for resolving this case, the (Supreme) Court need not — and, based on traditional principles of judicial restraint, should not — address the facial validity of the proposed amendment under the United States Constitution,” Moody’s brief said.

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