Why Florida’s Crackdown On Ballot Initiatives Is Such A Blow For Democrats

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Florida’s Republican governor won that position in 2018 by a margin of four-tenths of one percent. On Friday, that razor-thin victory led to a crackdown on one of Democrats’ last levers of power in the state.

Despite being a presidential “swing state,” Florida is governed almost entirely by Republicans, save for the Democratic Agriculture Commissioner Nikki Fried. As a result, citizen-led ballot measures to change the state’s constitution have long been one way for progressive ideas to make their way into state law. That all changed late last week, when Gov. Ron DeSantis (R) signed H.B. 5 into law, placing extensive new rules and restrictions on the ballot measure process.

“It’s a strong attempt to deny all citizens of the state of Florida access to their constitution, period,” said State Senate Minority Leader Audrey Gibson (D) in a phone call with TPM Monday. She called H.B. 5 “an intentional barrier” and an attempt to “impede the resolve of progressives, particularly when the entire government is controlled by Republicans.”

“[I]t is clearly unconstitutional in that it unlawfully restricts the constitutional right to petition our government,” Glenn Burhans, who worked as an attorney for Democrat Andrew Gillum’s unsuccessful 2018 gubernatorial campaign, told TPM Friday minutes before DeSantis signed the bill. Burhans now chairs the ballot measure effort to let all registered voters participate in a single blanket primary for each office.

Instantly, the calculus for dozens of constitutional amendment efforts hoping to reach the state-wide ballot — concerning everything from marijuana legalization to universal gun background checks to increasing the minimum wage — changed.

The law, which will go into effect 30 days from DeSantis’ signature, requires that local supervisors of elections issue serially numbered signature sheets to petition gatherers working to get proposed constitutional amendments on the ballot. This allows the state to fine ballot measure organizations if they fail to turn in signature sheets — up to $1,000 if the failure to turn in a sheet is deemed “willful.” It also prohibits paying petitioners according the number of signatures they gather, among other changes.

That’s a dramatic departure from the status quo, in which misplaced signature sheets, or sheets containing simple clerical errors, don’t add up to hundreds or thousands of dollars in fines.

Put together, the law creates a huge hurdle for efforts to change the state’s constitution.

“It’s going to cost us more money,” said Karen Seeb Goldstein, the executive director of the pro-marijuana legalization group NORML in Florida. She and others are working through Sensible Florida, Inc. on a ballot measure to “regulate marijuana in a manner similar to alcohol.”

“We’re seeing, generally, that Republican governments are making it more difficult for people to participate in the electoral process,” Michael McDonald, an associate professor of political science at the University of Florida, told TPM in a phone call Monday. He noted that Florida’s ballot measure process is already quite arduous: In 2006, the state’s voters — well, 57.8% of them, anyway — voted to require 60% support for future ballot measures in order to amend the constitution. 

Republicans in Tallahassee were blunt about their support for adding further roadblocks.

“A direct democracy is for other places — not, namely, the United States or the state of Florida,” Rep. James Grant, a Republican from Tampa, said of the effort.

Josh Altic, ballot measures project director at the online political encyclopedia Ballotpedia, expressed surprise Friday when he heard that justification.

“Up until last year, you never saw proponents of restrictions on the initiative process come out and say that the reason they wanted to pass these laws is to make the initiative process harder,” he said, listing just a handful of exceptions.

“In general,” he added, “giving voters choice and allowing voters the decision isn’t something that’s put down a lot by politicians, at least in the public sphere.”

Some supporters of the legislation were a bit more euphemistic:

[T]he Florida Constitution is protected,” Republican State Rep. Nick DiCeglie tweeted Friday after DeSantis signed H.B. 5 into law. Associated Industries of Florida, the “voice of Florida business,” thanked the governor for “protect[ing] our foundational document.”

One recent ballot measure illustrates the power struggle between citizen-led efforts to change the constitution and Republicans in power in Tallahassee.

With 64.55% of the vote, Floridians in 2018 overwhelmingly supported an effort to restore voting rights to people convicted of felonies who’d completed their sentences.  Then, Florida’s Republican legislature passed, and DeSantis signed, additional new language requiring that former felons pay back fines and fees related to their conviction. Those regularly amount to thousands of dollars of what some advocates called a “poll tax” on former felons.

The Sun Sentinel’s editorial board listed some more examples of constitutional changes approved via statewide referendum on Friday, writing that the process was “how Floridians legalized medical marijuana, expanded land and water protections, reduced class sizes, [and] required local approval of more casino gambling.”

McDonald, the University of Florida professor, noted Monday that “perhaps there’s a basis to successfully litigate against” the potentially massive fines the law would place on organizations with paperwork issues. 

He pointed to his work as an expert witness in League of Women Voters of Florida v. Browning, a suit over a similar schedule of fines the state had imposed on voter registration forms that were turned in late or not at all. In court, the law was narrowed “enough to allow plaintiffs to continue voter registration drives without fear of being subject to excessive fines,” in the plaintiffs’ words at the time

The political director of the ACLU of Florida, Kirk Bailey, told TPM Friday that it was “evaluating whether or not legal action makes sense” in response to H.B. 5. 

The efforts currently jockeying for 2020 ballot placement now face the question: With new hurdles in place, will they still be able to reach the 766,200 signatures needed to be placed on the ballot?

For at least one measure, the answer appeared to be yes: Prominent Florida lawyer John Morgan wrote on Twitter in late May that his effort to raise Florida’s minimum wage to $10/hour, and eventually to $15/hour, “will be close to finished by the time the law takes effect.”

The new law doesn’t erase signatures that have already been gathered. Morgan’s effort, according to state records, has collected at least 232,583 yet-uncertified signatures. He claimed on Twitter to have collected 600,000.

Others aren’t nearly as far along.

Corrections: This piece originally mischaracterized how Glenn Burhans’ ballot measure would change Florida’s primary system. It also incorrectly identified John Morgan as a Republican. Morgan said in 2017 that he planned to register as an independent.

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