graphic of Free Speech in State Legislatures

Florida Supreme Court considers, rules on bundled ballot measures – October 2018

Tallahassee, FL

In Anstead v. Detzner, Harry Lee Anstead and Robert Barnas claim that proposed amendments to the Florida state constitution infringe on voters’ First Amendment rights because they can only be considered as a bundled package, preventing citizens from expressing their approval or disapproval of a specific measure. A county circuit court ruled in Anstead’s and Barnas’s favor, but the state appealed and the case was sent to the Florida Supreme Court.

Key Players

Harry Lee Anstead is a former Florida Supreme Court justice. He and former Florida Elections Commissioner Robert Barnas are the plaintiffs in the case against the state. The pair raised concerns that proposed amendments to the state’s constitution were improperly bundled, which could lead to voter confusion, according to the Tampa Bay Times.

The Florida Constitution Revision Commission (CRC) is a 37-member body, made up of commissioners named by the governor, state congressional leaders, and the chief justice of the Florida Supreme Court. Established by the state constitution, the commission is responsible for proposing constitutional amendments, which can also originate through citizens’ initiatives, legislative recommendations, or constitutional conventions. In April 2018, the commission referred eight constitutional amendments to be on the ballot during the November 2018 midterm elections.

Ken Detzner, who was appointed by Republican governor Rick Scott to serve as Florida’s secretary of state, is the named respondent in the lawsuit.

Pam Bondi, a Republican, currently serves as Florida’s attorney general. Her office was responsible for appealing the initial circuit court decision in the case.

Further Details

In April 2018, Florida’s Constitution Revision Commission (CRC) added twelve constitutional amendments to the ballot for the Nov. 6 general election. In August 2018, Anstead and Barnas petitioned the Florida Supreme Court, claiming that several of the proposed amendments reflected practices of improper bundling.

In an October 2018 interview with WLRN, a south Florida public radio station, Tim Cerio, a member of the 2018 CRC and a former counsel to Republican governor Rick Scott, said the reason for bundling the amendments was to “promote ballot brevity to the extent we can prevent voter fatigue.” Critics, however, argue that the move was merely another way of denying relevant choices to Florida voters in an attempt to attach unpopular items with more favorable ones.

“The commission on Monday added amendments to the November ballot that will force voters to accept unconnected or unpopular changes with ones they support — or reject the entire amendment,” the Tampa Bay Times wrote in an April editorial. “It’s a cynical attempt to sneak through a conservative agenda that otherwise never would be approved, and voters should send a clear message they refuse to be manipulated.”

Critics also argued that the amendment bundling prevented voters from being able to voice their opinions distinctly through their vote, and from voting with their interests. Linking Floridians’ opinions on unrelated issues, critics said, would limit their ability to free expression through voting.

Ansted’s and Barnas’s case alleges that such bundling muddles the voting process on each amendment. “This is logrolling and a form of issue gerrymandering that violates the First Amendment right of the voter to vote for or against specific independent and unrelated proposals to amend the constitution without paying the price of supporting a measure the voter opposes or opposing a measure the voter supports,” they said to the Tampa Bay Times.

Anstead and Barnas challenged three proposed amendments in particular:

  • Amendment 7, which requires benefits for first responders and members of the military, and also modifies constitutional language around the state college system;
  • Amendment 9, which bans offshore oil and gas drilling, as well as vaping in indoor workplaces; and
  • Amendment 11, which repeals a ban on undocumented immigrants from owning property and removes a constitutional requirement to build a high-speed train system

The case also challenged Amendment 8, which included three ideas concerning the state’s education system; however, that facet of the case was rendered moot when the amendment was taken off the ballot after a seperate, successful legal battle, which claimed it was worded misleadingly, according to the Tampa Bay Times.

The Florida Supreme Court sent Anstead v. Detzner down to the Leon County Circuit Court in Tallahassee, the state  capital, for an initial hearing. On September 5, 2018, Judge Karen Gievers ordered the three amendments off the ballot, siding with Anstead and Barnas.

The state of Florida, via Bondi’s office, immediately appealed Gievers’s decision, and the First District Court of Appeals passed the case along to the state Supreme Court.

Joseph Little, the attorney for Anstead and Barnas, argued that the high court should uphold Gievers’s decision to block the amendments from the ballot, citing Floridians’ First Amendment rights.

The First Amendment “protects Florida voters from being forced to vote against their choices,” Little wrote in a brief filed with the Florida Supreme Court on September 21, 2018. Bondi, however, called this argument a “novel constitutional theory” that ignored historical examples of bundled constitutional amendments.

Outcome

Florida Supreme Court rules on Anstead v. Detzner

On Oct. 17, the Florida Supreme Court reversed the circuit court decision, arguing that the “the proposed amendments are not defective for bundling independent and unrelated measures.” The court ruled that Amendments 7, 9, and 11 would appear on the ballot for the Nov. 6 election.

Amendments 7, 9, 11 pass

All three of the amendments contested in Anstead v. Detzner passed.

External References

Florida Constitution Revision Commission, Ballotpedia

Editorial: Don’t fall for Constitution Revision Commission’s tricks, Tampa Bay Times

Former Florida chief justice challenges Amendment 8, five others as unconstitutionally bundled, Tampa Bay Times

ANSTEAD, HARRY LEE vs KEN DETZNER IN HIS OFFICiAL CAPACITY AS SECRETARY OF STATE

What’s at stake in today’s Florida court hearings over Amendment 8?, Tampa Bay Times

Florida Supreme Court removes Amendment 8 from ballot, Tampa Bay Times

Florida Supreme Court asked to block amendments from ballot, News4Jax

Florida Supreme Court Docket: Case Docket, Case Number: SC18-1513 – Active, KENNETH J. DETZNER, ETC. vs. HARRY LEE ANSTEAD, ET AL.

Prepared by Maya Gandhi ’20

Uploaded January 2, 2018