Ballot Law Update: Florida Supreme Court allows marijuana measure on ballot and California Superior Court rules on signature deadlines
| Initiative law|
Ballot access rulings
Recent court cases
Ballot title challenges
By Josh Altic
Since the beginning of the year, no laws have been proposed in any state affecting the initiative and referendum process, according to the National Conference of State Legislatures. The Ballot Law Update is released on the last Wednesday of each month.
With regard to Florida Amendment 2, which seeks to amend Florida Constitution to allow the use of medical marijuana in the state of Florida, several plaintiffs, including the Florida Attorney General and the Florida State Legislature, argued that the initiative should not be allowed on the ballot. Ultimately the Supreme Court approved, in a 4 to 3 vote, the decision that the amendment should remain on the ballot. The plaintiffs gave two reasons the initiative should be removed from the ballot. First of all because it broke the single subject rule requiring that a citizen initiative amendment “shall embrace but one subject and matter directly connected therewith.” Secondly because the ballot title and summary were misleading as the amendment “would allow far wider marijuana use than the ballot title and summary reveal.” These separate arguments are detailed below.
Opponents of the amendment argued in court that Amendment 2 was guilty of combining separate subjects into one initiated proposal. The court ruled that Amendment 2 did in fact have a "logical and natural oneness of purpose," as required by court case Fine v. Firestone, 448 So. 2d 984, 990 (Fla. 1984). The unifying purpose the court opinion pointed to was the question of "whether Floridians want a provision in the state constitution authorizing the medical use of marijuana, as determined by a licensed Florida physician, under Florida" and the court decided that all other provisions of Amendment 2 are connected to this purpose.
Opponents, including Chief Justice Ricky Polston, who was one of the three dissenting Supreme Court judges, also claimed that the ballot title and summary were misleading because, while the summary says that only "individuals with debilitating diseases" will be allowed access to marijuana, the text of the amendment uses the word "condition" instead of "disease," defining it to mean when a "physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient," which may often apply when there is no "debilitating disease." According to Polston's dissenting opinion, the amendment text also explicitly defines medical marijuana qualifying conditions to "include medical issues that could hardly be considered 'debilitating' or 'enfeebling.'" Given these arguments, Polston agreed with opponents of the Amendment.
The official court decision, however, focused on the use of the word "debilitating," which was common in both the ballot summary and the amendment text. It stated that the ballot title and summary were not "clearly and conclusively defective" and allowed the measure to stay on the ballot.
California Superior Court issues tentative ruling, slightly relaxing signature submission deadline laws:
Referendum petitioners seeking to repeal a law about transgender public school students and their ability to use certain bathrooms filed a lawsuit when their signature petitions were rejected in Tulare and Mono Counties. The deadline for their petition was on November 10, 2013, which was a Sunday. They turned in signatures on November 8 and November 9, but county officials did not accept the submission because the county offices were not open for business. In Gleason v Bowen, 34-2013-80001714, the California Superior Court tentatively ruled on January 2, 2014, that when a petition deadline falls on a weekend, the true deadline is the following business day.
- Utah: On December 20, 2014, U.S. District Judge Robert Shelby issued a court decision overturning a 2004 Utah Amendment. Shelby claimed same-sex marriage as a fundamental right guaranteed by the 14th Amendment of the U.S. Constitution. The court decision said, "The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional." This ruling has repercussions for future ballot measures on the issue of gay marriage and provides a restricting precedent not only for ballot measure content but also for state legislation banning gay marriage. Ryan Bruckman, spokesman for Utah's attorney general office, said, "The federal district court’s ruling that same-sex marriage is a fundamental right has never been established in any previous case in the 10th Circuit. The attorney general’s office will continue reviewing the ruling in detail until an appeal is filed to support the constitutional amendment passed by the citizens of Utah." Moreover, Utah Governor Gary Herbert said, “I am very disappointed an activist federal judge is attempting to override the will of the people of Utah. I am working with my legal counsel and the acting attorney general to determine the best course to defend traditional marriage within the borders of Utah."
- Oklahoma: Federal Judge Terence C. Kern ruled in a similar fashion that 2004 Oklahoma Question 711 was a violation of Amendment 14 rights to equal protection under state law. After establishing precedents and relevant history, Kern wrote, "Against this backdrop, the Court’s task is to determine whether Part A of the Oklahoma Constitutional Amendment deprives a class of Oklahoma citizens – namely, same-sex couples desiring an Oklahoma marriage license – of equal protection of the law. Applying deferential rationality review, the Court searched for a rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. Finding none, the Court’s rationality review reveals Part A as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit."
U.S. Supreme Court finally agrees to hear case on law banning false statements in ballot campaigns, both for candidates and measures:
After repeatedly rejected the case, the Supreme Court agreed to hear Susan B. Anthony v. Driehaus, 13-193, about Ohio's state law prohibiting false statements about a candidate or ballot measure. Reportedly, the Supreme Court may only determine whether certain procedural hurdles to deciding the constitutionality of this law should be put aside, leaving lower courts, who have also repeatedly refused to hear this case, to give a decision on the law's compatibility with the U.S. Constitution. Stay tuned to the monthly Ballot Law Update for developments.
On January 9, plaintiffs against and defendants of a Montana initiative seeking to establish a top-two open primary filed briefs for what will be the MEA-MFT v State of Montana, 13-789, court case. Plaintiffs will argue that the title is more than 100 words long, violating state law, and that the measure contradicts the single subject rule and is misleading to voters. Stay tuned to future Ballot Law Updates for news on how this lawsuit progresses and the outcome with regard to ballot law.
Bills to watch
Oregon legislators pass law that restricts the content of county initiatives and could make a Jackson County GMO ban the last of its kind:
On October 3, 2013, Oregon legislators, in a 17-12 vote, approved Senate Bill 863, which prohibits Oregon counties, other than Jackson County, which already has a GMO banning initiative on the ballot, from regulating or banning genetically modified organisms. SB 863 claimed an emergency status in order to preclude efforts against GMOs in Benton and Lane counties. SB 863 restricts the content of local initiative in Oregon from use on the highly contentious issue of GMO bans. If this law remains unchallenged in court, it will make the Jackson County initiative prohibiting the cultivation of genetically modified organisms planned for the May 20 election the last of its kind in Oregon.
According to the National Conference of State Legislature website, no legislation regarding ballot measure law has been approved in any state so far in 2014. This section will be updated as the year progresses.
- NCSLnet, "Initiative & Referendum Legislation," accessed January 29, 2014
- Section 3 of Article XI of the Florida Constitution
- Florida Supreme Court, Advisory Opinion to the Attorney General Re: Use of Marijuana for Certain Medical Conditions," accessed January 29, 2014
- Tampa Bay Times, "Medical marijuana to go to ballot, Florida Supreme Court rules," January 27, 2014
- U-T San Diego, "Lawsuit filed over transgender law referendum," December 23, 2014
- Ballot Access News, "California Referendum Proponents Tentatively Win Court Case over Deadline for Submitting Petitions," January 2, 2014
- Federal Court Case Kitchen v. Herbert," accessed January 29, 2014
- Federal Court decision by Terence Kern, Bishop v. Oklahoma," accessed January 29, 2014
- Ballot Access News, "U.S. Supreme Court Accepts Ohio Case on Law Barring False Statements Concerning a Candidate or Ballot Measure," January 10, 2014
- Ballot Law Access New, "Both Sides Files Briefs in Montana Supreme Court, on Whether to Keep Top-Two Ballot Measure on Ballot," January 19, 2014
- The Oregonian, "GMO bill clears Oregon Senate (2013 special session)," October 2, 2013