ADVISORY OPINION TO THE ATTORNEY GENERAL RE: VOTING RESTORATION AMENDMENT. Advisory Opinion to the Attorney General Re: Voting Restoration Amendment (FIS) , 215 So. 3d 1202 ( 2017 )

Supreme Court of Florida
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No. SC16-1785
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ADVISORY OPINION TO THE ATTORNEY GENERAL RE: VOTING
RESTORATION AMENDMENT.
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No. SC16-1981
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ADVISORY OPINION TO THE ATTORNEY GENERAL RE: VOTING
RESTORATION AMENDMENT (FIS).
[April 20, 2017]
LEWIS, J.
The Attorney General of Florida has requested this Court’s opinion as to the
validity of an initiative petition circulated pursuant to article XI, section 3 of the
Florida Constitution. We have jurisdiction. See art. IV, § 10, art. V, § 3(b)(10),
Fla. Const.
FACTS AND BACKGROUND
On October 4, 2016, the Attorney General petitioned this Court for an
advisory opinion as to the validity of an initiative petition sponsored by Floridians
for a Fair Democracy (“the Sponsor”) and circulated, pursuant to article XI, section
3 of the Florida Constitution. The Sponsor submitted a brief supporting the
validity of the initiative petition.
The full text of the proposed amendment to article VI, section 4 of the
Florida Constitution states:
Article VI, Section 4. Disqualifications.—
(a) No person convicted of a felony, or adjudicated in this or
any other state to be mentally incompetent, shall be qualified to vote
or hold office until restoration of civil rights or removal of disability.
Except as provided in subsection (b) of this section, any
disqualification from voting arising from a felony conviction shall
terminate and voting rights shall be restored upon completion of all
terms of sentence including parole or probation.
(b) No person convicted of murder or a felony sexual offense
shall be qualified to vote until restoration of civil rights.
(bc) No person may appear on the ballot for re-election to any
of the following offices:
(1) Florida representative,
(2) Florida senator,
(3) Florida Lieutenant governor,
(4) any office of the Florida cabinet,
(5) U.S. Representative from Florida, or
(6) U.S. Senator from Florida
if, by the end of the current term of office, the person will have served
(or, but for resignation, would have served) in that office for eight
consecutive years.
The ballot title for the amendment is: “Voter Restoration Amendment.” The
ballot summary states:
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This amendment restores the voting rights of Floridians with felony
convictions after they complete all terms of their sentence including
parole or probation. The amendment would not apply to those
convicted of murder or sexual offenses, who would continue to be
permanently barred from voting unless the Governor and Cabinet vote
to restore their voting rights on a case by case basis.
On October 28, 2016, the Financial Impact Estimating Conference
forwarded to the Attorney General a financial impact statement on the initiative
petition. On November 1, 2016, the Attorney General requested this Court’s
opinion as to whether the financial impact statement prepared by the Financial
Impact Estimating Conference on the constitutional amendment is in accordance
with section 100.371, Florida Statutes (2016). The financial impact statement
regarding the Voter Restoration Amendment states:
The precise effect of this amendment on state and local government
costs cannot be determined, but the operation of current voter
registration laws, combined with an increased number of felons
registering to vote, will produce higher overall costs relative to the
processes in place today. The impact, if any, on state and local
government revenues cannot be determined. The fiscal impact of any
future legislation that implements a different process cannot be
reasonably determined.
No briefs or comments were submitted to this Court in response to the
financial impact statement.
ANALYSIS
Standard of Review
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We have explained the standard of review for citizen initiative petitions as
follows:
“This Court has traditionally applied a deferential standard of
review to the validity of a citizen initiative petition and ‘has been
reluctant to interfere’ with ‘the right of self-determination for all
Florida’s citizens’ to formulate ‘their own organic law.’ ” In re
Advisory Op. to Att’y Gen. re Use of Marijuana for Certain Med.
Conditions (Medical Marijuana I), 132 So. 3d 786, 794 (Fla. 2014)
(quoting Advisory Op. to Att’y Gen. re Right to Treatment & Rehab.
for Non-Violent Drug Offenses, 818 So. 2d 491, 494 (Fla. 2002)).
This Court does “not consider or address the merits or wisdom of the
proposed amendment” and must “act with extreme care, caution, and
restraint before it removes a constitutional amendment from the vote
of the people.” In re Advisory Op. to Att’y Gen. re Limits or Prevents
Barriers to Local Solar Elec. Supply, 177 So. 3d 235, 242 (Fla. 2015)
(quoting In re Advisory Op. to Att’y Gen. re Fairness Initiative
Requiring Legis. Determination that Sales Tax Exemptions &
Exclusions Serve a Pub. Purpose (Fairness Initiative), 880 So. 2d 630,
633 (Fla. 2004)).
Advisory Op. to Att’y Gen. re Rights of Elec. Consumers Regarding Solar Energy
Choice (Solar Energy), 188 So. 3d 822, 827 (Fla. 2016).
When this Court renders an advisory opinion concerning a proposed
constitutional amendment arising through the citizen initiative
process, the Court limits its inquiry to two issues: (1) whether the
amendment itself satisfies the single-subject requirement of article XI,
section 3, Florida Constitution; and (2) whether the ballot title and
summary satisfy the clarity requirements of section 101.161, Florida
Statutes.
Advisory Op. to Att’y Gen. re Use of Marijuana for Debilitating Med. Conditions
(Medical Marijuana II), 181 So. 3d 471, 476 (Fla. 2015) (quoting Advisory Op. to
Att’y Gen. re Water & Land Conservation–Dedicates Funds to Acquire & Restore
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Fla. Conservation & Recreation Lands (Water & Land Conservation), 123 So. 3d
47, 50 (Fla. 2013)). Accordingly, we are obligated to uphold the proposal unless it
is “clearly and conclusively defective.” Advisory Op. to Att’y Gen. re Fla.’s
Amend. to Reduce Class Size, 816 So. 2d 580, 582 (Fla. 2002).
Single-Subject Requirement
Article XI, section 3 of the Florida Constitution establishes the
general requirement that a proposed citizen initiative amendment
“shall embrace but one subject and matter directly connected
therewith.” Art. XI, § 3, Fla. Const. “In evaluating whether a
proposed amendment violates the single-subject requirement, the
Court must determine whether it has a logical and natural oneness of
purpose.” [Medical Marijuana II], 181 So. 3d 471, 477 (Fla. 2015)
(internal citations omitted). The single-subject requirement applies to
the citizen initiative method of amending the Florida Constitution
because the citizen initiative process does not afford the same
opportunity for public hearing and debate that accompanies other
constitutional proposal and drafting processes. See Advisory Op. to
the Att’y Gen. re 1.35% Prop. Tax Cap, Unless Voter Approved, 2 So.
3d 968, 972 (Fla. 2009).
The single-subject rule prevents an amendment from (1)
engaging in “logrolling” or (2) “substantially altering or performing
the functions of multiple aspects of government.” Advisory Op. to
Att’y Gen. re Fla. Transp. Initiative for Statewide High Speed
Monorail, Fixed Guideway or Magnetic Levitation Sys., 769 So. 2d
367, 369 (Fla. 2000). The term logrolling refers to a practice whereby
an amendment is proposed which contains unrelated provisions, some
of which electors might wish to support, in order to get an otherwise
disfavored provision passed. Advisory Op. to Att’y Gen. re: Protect
People, Especially Youth, from Addiction, Disease, & Other Health
Hazards of Using Tobacco, 926 So. 2d 1186, 1191 (Fla. 2006).
Solar Energy, 188 So. 3d at 827-28. This Court has further explained that “[a]
proposal that affects several branches of government will not automatically fail;
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rather, it is when a proposal substantially alters or performs the functions of
multiple branches that it violates the single-subject test.” Advisory Op. to Att’y
Gen. re Fish & Wildlife Conservation Comm’n, 705 So. 2d 1351, 1353-54 (Fla.
1998).
Here, the initiative has “a logical and natural oneness of purpose,”
specifically, whether Floridians wish to include a provision in our state constitution
permitting the restoration of voting rights to Floridians with felony convictions,
excluding those with murder and felony sex offenses, once they have completed all
of the terms of their sentences. The proposed amendment’s provision excluding
persons with convictions for murder or felony sex offenses is directly connected
with this purpose. Furthermore, this exclusion removes a class of offenders from
automatic voter restoration eligibility based on the nature of their offenses, thus
removing the possibility that voters be forced to “accept part of an initiative
proposal which they oppose in order to obtain a change in the constitution which
they support.” Advisory Op. to Att’y Gen. re Standards for Establishing Legis.
Dist. Boundaries, 2 So. 3d 175, 180 (Fla. 2009) (quoting Advisory Op. to Att’y
Gen. re Amend. to Bar Gov’t From Treating People Differently Based on Race in
Pub. Educ., 778 So. 2d 888, 891 (Fla. 2000)). Therefore, the proposed amendment
does not engage in impermissible logrolling. See Advisory Op. to Att’y Gen. re
Fla. Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or
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Magnetic Levitation System, 769 So. 2d at 369 (holding that “there is no
impermissible logrolling” where “[t]he only subject embraced in the proposed
amendment is whether the people of this State want to include a provision in their
Constitution mandating that the government build a high speed ground
transportation system”).
Additionally, the proposed amendment does not substantially alter or
perform the functions of multiple branches. As it currently stands, the Governor,
with the approval of two members of the Florida Cabinet, may restore civil rights
on a case-by-case basis. See art. IV, § 8, Fla. Const. If the proposed amendment
passes, the Governor and the Florida Cabinet would still review the restoration of
civil rights on a case-by-case basis, but only for those persons convicted of murder
or felony sexual offenses, rather than for all felony offenders, which would reduce
their current obligations in an insignificant way. “[I]t [is] difficult to conceive of a
constitutional amendment that would not affect other aspects of government to
some extent.” Advisory Op. to Att’y Gen. re Ltd. Casinos, 644 So. 2d 71, 74 (Fla.
1994). A proposed amendment having some effect on government does not
necessarily result in the substantial alteration or performance of functions of
government. See Solar Energy, 188 So. 3d at 830 (“Although the proposed
amendment would affect the government in a literal sense by requiring State and
local governments to comply with a provision of the Florida Constitution while
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retaining their existing abilities, it does not cause the ‘precipitous’ or ‘cataclysmic’
changes to the government structure indicative of substantially altering or
performing the functions of multiple branches of government.”). Therefore, the
proposed amendment does not substantially alter or perform the functions of
multiple branches of government.
Accordingly, we conclude that the proposed amendment complies with the
single-subject requirement of article XI, section 3 of the Florida Constitution.
Ballot Title and Summary
Section 101.161(1) provides the following requirements for the ballot title
and summary:
The ballot summary of the amendment or other public measure shall
be an explanatory statement, not exceeding 75 words in length, of the
chief purpose of that measure. . . . The ballot title shall consist of a
caption, not exceeding 15 words in length, by which the measure is
commonly referred to or spoken of.
§ 101.161(1), Fla. Stat. (2016).
The purpose of these requirements is “to provide fair notice of the
content of the proposed amendment so that the voter will not be
misled as to its purpose, and can cast an intelligent and informed
ballot.” Advisory Op. to Att’y Gen. re Term Limits Pledge, 718 So.
2d 798, 803 (Fla. 1998).
This Court’s review of the validity of a ballot title and summary
under section 101.161(1) involves two inquiries:
First, the Court asks whether “the ballot title and
summary . . . fairly inform the voter of the chief purpose
of the amendment.” Right to Treatment and
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Rehabilitation for Non-Violent Drug Offenses, 818 So.
2d [491, 497 (Fla. 2002)]. Second, the Court asks
“whether the language of the title and summary, as
written, misleads the public.” Advisory Op. to Att’y
Gen. re Right of Citizens to Choose Health Care
Providers, 705 So. 2d 563, 566 (Fla. 1998).
Medical Marijuana II, 181 So. 3d at 478 (quoting Advisory Op. to Att’y Gen. re
Fairness Initiative Requiring Legis. Determination That Sales Tax Exemptions &
Exclusions Serve a Pub. Purpose, 880 So. 2d 630, 635-36 (Fla. 2004)). “While the
ballot title and summary must state in clear and unambiguous language the chief
purpose of the measure, they need not explain every detail or ramification of the
proposed amendment.” Solar Energy, 188 So. 3d at 831 (quoting Advisory Op. to
Att’y Gen. re 1.35% Prop. Tax Cap, 2 So. 3d 968, 974 (Fla. 2016)).
Here, the ballot title and summary comply with the respective word
limitations. The title is three words in length and the summary contains sixty-two
words, which is within the word requirements of section 101.161(1).
Thus, the remaining issues are: (1) whether the ballot title and summary
inform voters of the chief purpose of the proposed amendment; and (2) whether the
ballot title and summary are misleading. We conclude that both issues are satisfied
here.
First, the ballot title and summary clearly and unambiguously inform the
voters of the chief purpose of the proposed amendment. Read together, the title
and summary would reasonably lead voters to understand that the chief purpose of
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the amendment is to automatically restore voting rights to felony offenders, except
those convicted of murder or felony sexual offenses, upon completion of all terms
of their sentence.
Second, the ballot title and summary also do not mislead voters with regard
to the actual content of the proposed amendment. Rather, together they recite the
language of the amendment almost in full. See Advisory Op. to Att’y Gen. re
Funding of Embryonic Stem Cell Res., 959 So. 2d 195 (Fla. 2007) (upholding a
summary, which reiterated almost all of the language contained in the
amendment); Advisory Op. to Att’y Gen. re Florida Marriage Prot. Amend., 926
So. 2d 1229 (Fla. 2006) (same); Advisory Op. to Att’y Gen. re Medical Liab.
Claimant’s Comp. Amend., 880 So. 2d 675 (Fla. 2004) (same).
Accordingly, for the reasons expressed above, we conclude that the ballot
title and summary comply with the clarity requirements of section 101.161.
Financial Impact Statement
We have also detailed our obligation to review financial impact statements:
We have an independent obligation to review the financial
impact statement to ensure that it is clear and unambiguous and in
compliance with Florida law. See Adv. Op. to Atty. Gen. re Use of
Marijuana for Certain Medical Conditions, 132 So. 3d [786, 809 (Fla.
2014)] (citing Adv. Op. to Atty. Gen. re Referenda Required for
Adoption & Amend. of Local Gov’t Comprehensive Land Use Plans,
963 So. 2d 210, 214 (Fla. 2007)). Article XI, section 5(c), of the
Florida Constitution provides, “The legislature shall provide by
general law, prior to the holding of an election pursuant to this
section, for the provision of a statement to the public regarding the
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probable financial impact of any amendment proposed by initiative
pursuant to section 3.” Additionally, section 100.371(5)(a), Florida
Statutes (2015), provides that the financial impact statement must
address “the estimated increase or decrease in any revenues or costs to
state or local governments resulting from the proposed initiative.”
Section 100.371(5)(c) 2, Florida Statutes (2015), requires the financial
impact statement to be “clear and unambiguous” and “no more than
75 words in length.”[1]
We have explained that our “review of financial impact
statements is narrow.” Adv. Op. to Att’y Gen. re Water & Land
Conservation, 123 So. 3d [47, 52 (Fla. 2013)]. We address only
“whether the statement is clear, unambiguous, consists of no more
than seventy-five words, and is limited to address the estimated
increase or decrease in any revenues or costs to the state or local
governments.” Advisory Op. to Att’y Gen. re Local Gov’t
Comprehensive Land Use Plans, 963 So. 2d [210, 214 (Fla. 2007)].
Medical Marijuana II, 181 So. 3d at 479.
We conclude that the financial impact statement complies with the word
limit and meets the other statutory requirements set forth in section 100.371(5),
Florida Statutes (2016). The financial impact statement is seventy-four words in
length, thus complying with the seventy-five-word limit, and is limited to the
subject of the estimated increase or decrease in revenues or costs to state and local
governments. Additionally, it clearly and unambiguously states that there are
likely increased costs associated with the influx of felons registering to vote, but
that the exact amount of cost increase cannot be determined. Moreover, the
1. The language of section 100.371(5), Florida Statutes (2016), is identical
to the 2015 version quoted in Medical Marijuana II.
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financial impact statement clearly and unambiguously explains that the Financial
Impact Estimating Conference could not determine the impact on state and local
government revenue. Therefore, we conclude that the financial impact statement
complies with section 100.371(5). See Advisory Op. to Att’y Gen. re Fla. Growth
Mgmt. Initiative Giving Citizens Right to Decide Local Growth Mgmt. Plan
Changes, 2 So. 3d 118, 124 (Fla. 2008) (“Overall, the financial impact statement is
necessarily indefinite but not unclear or unambiguous.”); see also Medical
Marijuana II, 181 So. 3d at 479 (holding that the financial impact statement’s
indeterminate conclusion with regard to the increase or decrease in costs or
revenues to state and local government nonetheless complied with section
100.371); Water & Land Conservation, 123 So. 3d at 52 (same); Advisory Op. to
Att’y Gen. re Health Hazards of Tobacco, 926 So. 2d 1186, 1195 (Fla. 2006)
(same).
CONCLUSION
In conclusion, we hold that the proposed amendment meets the legal
requirements of article XI, section 3 of the Florida Constitution, and that the ballot
title and summary complies with section 101.161(1). Moreover, we conclude that
the financial impact statement complies with section 100.371(5). Accordingly, we
approve the amendment for placement on the ballot.
It is so ordered.
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LABARGA, C.J., and PARIENTE, QUINCE, CANADY, POLSTON, and
LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
Original Proceedings – Advisory Opinion – Attorney General
Pamela Jo Bondi, Attorney General, and Ellen B. Gwynn, Senior Assistant
Attorney General, Tallahassee, Florida,
for Petitioner
Jon L. Mills of Boies, Schiller & Flexner LLP, Miami, Florida; and Andrew M.
Starling, Orlando Florida,
for Floridians for a Fair Democracy, Sponsor
Ion Sancho, Former Supervisor of Elections for Leon County, Tallahassee, Florida;
and Dr. Brenda Snipes, Supervisor of Elections for Broward County, Fort
Lauderdale, Florida,
as Proponents
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