Florida’s attorney general is suggesting that voters are too stupid to understand that marijuana would remain federally illegal even if they approved a cannabis legalization initiative at the state’s ballot next year—and therefore they can’t be trusted to decipher the “monopolistic” policy implications of the reform.
Attorney General Ashley Moody (R) submitted a new brief to the state Supreme Court on Wednesday—a deadline the court imposed after granting her request for an extension last month—and reaffirmed her position that the ballot measure should be invalidated on several grounds.
One of the official’s main arguments to the court is that the initiative’s summary is affirmatively misleading, in part because it doesn’t explicitly say that cannabis would still be federally prohibited regardless of whether Florida enacts legalization.
The Smart & Safe Florida campaign, which is behind the proposed reform, has contested that claim, saying it “strains credulity well past the breaking point to think that the average voter is unaware that marijuana is illegal at the federal level.”
The attorney general’s office doesn’t agree, however. The new brief says that “most Americans cannot name a single Supreme Court justice,” implying that voters would be similarly ignorant about the federal-state policy conflict despite the fact that it’s a dynamic that already exists in most of the country—including in Florida, where medical cannabis is legal on the state level despite continuing to be prohibited federally.
Further, Moody is asserting that the initiative is crafted in a way that would unfairly benefit the campaign’s main financial backer, the cannabis company Trulieve.
“This carefully curated ballot summary misleads in ways that, though sometimes subtle, are likely to influence voters—and to do so in a way that entrenches the Sponsor’s monopolistic stranglehold on the marijuana market to the detriment of Floridians,” it says. “In its pursuit of a larger customer base and greater profits, Trulieve has invited millions of Floridians to join it in reckless violation of federal criminal law.”
“Trulieve may be reckless enough to stake an entire business model on the whims of federal prosecutors,” it continues. “But it cannot invite Florida voters to permanently amend their governing charter by promising that the amendment will do something (‘allow’ recreational marijuana) that it will not do.”
Additionally, the attorney general says that the campaign is duping voters by saying the initiative would expand the number of marijuana retailers in the state, when it simply authorizes such an expansion.
“This misdirection was no doubt engineered by the Sponsor to appeal to voters who wish to end [medical cannabis treatment centers’] stranglehold on the State’s marijuana market,” it says. “That bait-and-switch is misleading.”
Moody went on to argue that the measure does not adequately convey to voters that it would set a “constitutional ban” on possessing more than three ounces of cannabis for personal use, which she says the legislature would not be able to independently change. And the brief also claimed that the language of the initiative would make it so the state Department of Health would only have regulatory authority over medical cannabis, effectively “exempting” the adult-use market from oversight.
“In the end, if the Sponsor wanted to abolish state-law barriers to recreational marijuana, the straightforward way would have been to erase the old medical regime and replace it with a recreational one. It instead built recreational marijuana into the old regime. Why? Because the Sponsor is backed by an MMTC that already has a license and on day one will be able to sell recreational marijuana with no further steps required. And it advances that self-interest by concealing from voters that the amendment would expose them to federal criminal liability, would not enhance competition, and would leave recreational marijuana unregulated (and thus unsafe). This misleading ballot summary should not go before voters.”
The Florida Chamber of Commerce and the Drug Free America Foundation also submitted briefs to the court on Wednesday responding to the campaign’s defense of the ballot measure in a prior filing.
New material in Re: Adult Personal Use of Marijuana (Reply brief of the Florida Attorney General and reply brief of Drug Free America Foundation in opposition to the initiative). See the docket here: https://t.co/ASHoq9EFh7 pic.twitter.com/O9ZvBDr6Mr
— FloridaSupremeCourt (@flcourts) August 3, 2023
The Chamber of Commerce’s response brief reiterates its belief that the initiative unconstitutionally violates a single-subject rule for ballot measures, while also siding with the attorney general’s argument about misleading title and summary language. The brief says that while it’s the court’s “prerogative” to decide how to address the complaints, the chamber feels strongly that the measure should be invalidated on a single-subject basis.
The chamber, which separately filed a request for oral arguments in the case, said that the “citizen’s initiative process is increasingly being misused to propose legislative-like changes to the Florida Constitution that violate the strict single-subject requirement and that usurp the Legislature’s express constitutional role.”
The Drug Free America Foundation’s brief, meanwhile, says that the legalization measure is “facially unconstitutional since it is in ‘positive conflict’ with federal law and thus violates the Supremacy Clause of the United States Constitution.”
It’s not immediately clear what the next steps are in the case. It’s possible the court may schedule oral arguments now that both sides have laid out their main arguments in written briefs.
State officials have already affirmed that the campaign collected enough valid signatures to secure ballot placement.
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.
However, 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.