A Florida campaign that’s working to put marijuana legalization on the state’s 2024 ballot has filed a new brief to the state Supreme Court, contesting arguments from the state attorney general who is seeking to block voters from having a chance to decide on the measure.
Smart & Safe Florida—as well as supporters from the Cato Institute and Medical Marijuana Business Association of Florida—entered new briefs on a court-imposed deadline on Wednesday. This comes about a month after Attorney General Ashley Moody (R) and other opponents filed initial briefs challenging the initiative.
What happens in the Supreme Court will decide whether voters will get a chance to decide on the issue next year, as state officials have already affirmed that the campaign collected enough valid signatures to secure ballot placement.
Moody is arguing that arguing that the way its ballot summary is written is affirmatively misleading to voters on several grounds, which she says is grounds to invalidate the proposal.
In their response brief filed on Wednesday, Smart & Safe said that they relied on a “roadmap” for cannabis ballot initiatives that the court has provided over the past several years when considering prior proposed marijuana reforms. And they argued that the attorney general is essentially asking the court to “abruptly redraw the map.”
New material in Re: Adult Personal Use of Marijuana (Answer brief of sponsor Smart & Safe Florida in support of the initiative). See the docket here: https://t.co/ASHoq9EFh7 pic.twitter.com/PadUL1v87U
— FloridaSupremeCourt (@flcourts) July 20, 2023
“The Attorney General’s lead argument is that this Court should discard three of its recent precedents—precedents that it expressly encouraged ballot sponsors to use as blueprints for drafting future initiatives. The Attorney General even goes so far as to suggest that this Court should abandon the deferential standard of review that it has consistently applied to ballot initiatives for decades, essentially arguing that this Court committed legal error in dozens of decisions, and that it should invent a new, more lenient standard for discarding precedent.”
The campaign said that the court “should reject these misguided efforts to jettison established legal rules in service of a thinly veiled policy agenda,” adding that the attorney general’s office has resorted to “extreme and destabilizing arguments.”
The 99-page brief concludes by saying the court “should issue an opinion advising that the Initiative satisfies the legal requirements to be placed on the ballot.”
The Cato Institute, a libertarian think tank, submitted its own brief on Friday that targets arguments made by the Florida Chamber of Commerce in a separate brief filed alongside the one from the attorney general’s office last month.
While the libertarian organization said it didn’t dispute the chamber’s statement of facts about the case, it took issue with its claim that the measure violates the state’s single-subject for for ballot measures and implored the court to “adopt a pragmatic reading that faithfully implements the state constitutional commitment to self-determination.”
“Supporter urges the Court to adopt a reading of the single-subject rule that better implements the clear—and laudable—state constitutional commitment to self-determination,” it said. “Not coincidentally this approach better aligns with the history and purposes of the amendment-by-initiative process.”
A new brief from the Medical Marijuana Business Association of Florida, meanwhile, says that the attorney general’s “argument that the Proposed Amendment’s summary is misleading because it fails to disclose that there may be a significant period in which the marijuana industry will be unregulated in the production of marijuana for non-medical personal use by adults ignores the current regulatory scheme that would remain in place, is speculative, and is belied by Florida’s history of robustly regulating marijuana.”
“Accordingly, the Attorney General’s claim fails,” it said. “The ballot title and summary of the Proposed Amendment are not misleading and, as such, the initiative should be approved for the ballot.”
Moody and other opponents are now due to file their final reply briefs in the case by Wednesday.
Despite the attorney general’s opinion, activists say that they’ve thoroughly vetted the measure and are confident the court will agree that it complies with constitutional requirements.
Moody made the same argument against a 2022 legalization measure, and the Supreme Court subsequently invalidated it.
In order to get on the ballot, an initiative must have valid signatures from registered voters totaling at least eight percent of the district-wide vote in the most recent presidential election in at least 14 of the state’s 28 congressional districts—in addition to the statewide number needed. The marijuana campaign has met the threshold in exactly 14 districts, according to the recently updated state data.
The marijuana company Trulieve has contributed more than $39 million to the Smart & Safe Florida campaign to date.
If approved, the measure would change the state Constitution to allow existing medical cannabis companies in the state like Trulieve to begin selling marijuana to all adults over 21. It contains a provision that would allow—but not require—lawmakers to take steps toward the approval of additional businesses. Home cultivation by consumers would not be allowed under the proposal as drafted.
Adults 21 and older would be able to purchase and possess up to one ounce of cannabis, only five grams of which could be marijuana concentrate products. The three-page measure also omits equity provisions favored by advocates such as expungements or other relief for people with prior cannabis convictions.
Separately, economic analysts from the Florida legislature and the office of Gov. Ron DeSantis (R) estimate that the marijuana legalization initiative would generate between $195.6 million and $431.3 million in new sales tax revenue annually if voters enact it. And those figures could increase considerably if lawmakers opted to impose an additional excise tax on cannabis transactions that’s similar to the ones in place in other legalized states.
A poll published in March found that 70 percent of Florida voters support legalizing marijuana. Florida voters approved a medical cannabis constitutional amendment in 2016.
Here’s what the Smart & Safe Florida marijuana legalization initiative would accomplish:
Adults 21 and older could purchase and possess up to three ounces of cannabis for personal use. The cap for marijuana concentrates would be five grams.
Medical cannabis dispensaries could “acquire, cultivate, process, manufacture, sell, and distribute marijuana products and marijuana accessories to adults for personal use.”
The legislature would be authorized—but not required—to approve additional entities that are not currently licensed cannabis dispensaries.
The initiative specifies that nothing in the proposal prevents the legislature from “enacting laws that are consistent with this amendment.”
The amendment further clarifies that nothing about the proposal “changes federal law,” which seems to be an effort to avoid past legal challenges about misleading ballot language.
There are no provisions for home cultivation, expungement of prior records or social equity.
The measure would take effect six months following approval by voters.
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Here’s the full text of the ballot title and summary:
“Allows adults 21 years or older to possess, purchase, or use marijuana products and marijuana accessories for non-medical personal consumption by smoking, ingestion, or otherwise; allows Medical Marijuana Treatment Centers, and other state licensed entities, to acquire, cultivate, process, manufacture, sell, and distribute such products and accessories. Applies to Florida law; does not change, or immunize violations of, federal law. Establishes possession limits for personal use. Allows consistent legislation. Defines terms. Provides effective date.”
Should the initiative make the 2024 ballot, at least 60 percent of Florida voters would have to approve the measure for it to be enacted.
An earlier poll released in 2021 found that a majority of Florida voters (59 percent) support legalizing cannabis for adult use, so that’s a slim margin that shows that advocates will have their work cut out for them if the measure qualifies.
Meanwhile, activists that aren’t directly involved in the Smart & Safe Florida campaign said last year that they were exploring plans to have voters decide on what they hope will be a complementary measure permitting adults to grow their own cannabis at home.
The legalization campaign shouldn’t expect to receive support from DeSantis, a Republican 2024 presidential candidate, who said at a recent event that he would not move to federally decriminalize cannabis if elected.