What’s the story with all these constitutional amendments on the November ballot? Should I vote up or down on the eight proposals to amend the Florida Constitution? Should vaping be prohibited in indoor workplaces? What has vaping got to do with offshore oil drilling, and why are these two things bundled together? Should dog racing be prohibited? Should judges be made to retire at age 70, or at age 75? What is Marsy’s Law, anyways? What does de novo mean and why should I care?
These are among the vexing questions friends and family will be asking as the elections in November draw near. You should be ready to answer their questions, because ready or not, the FCRC is coming for your vote.
The Florida Constitution Revision Commission (FCRC) has been assembled, and the commissioners have been busy during this past year. They have decided to put eight proposals to amend Florida’s constitution on the November ballot. Each proposal will require least 60 percent of the vote to pass.
The reason voters will be asked to make these important decisions is because Florida has a weird quirk in its Constitution that requires it. Article XI, Section 2 of the Florida Constitution provides that every 20 years, a group of 37 people composing the FCRC will be assembled to examine the Florida Constitution and to recommend changes (if any).
This requirement that the Florida Constitution be reviewed every 20 years was created when Florida voters ratified the present constitution in 1968. The first FCRC met ten years later, in 1977-78. None of its proposals were adopted by the voters. The second FCRC met in 1997-98. This time, several FCRC proposals were approved by the voters, including the creation of the Fish and Wildlife Conservation Commission. We are constitutionally due for another FCRC now.
So, who are these unelected grandees with the virtually unbridled power to put constitutional amendments on the ballot? Well, this is another example of the old adage that elections matter. The members of the FCRC are essentially appointed by the party in power. Presently, the party in power in Florida is the Republican Party.
Fifteen members are appointed by the governor, nine are appointed by the House Speaker, nine are appointed by the Senate President, and three are appointed by the Chief Justice of The Florida Supreme Court. The Attorney General is an automatic member. The full roster of the 2017-18 FCRC is listed on its webpage. Among the appointees is former state representative Jose Felix Diaz and former President of The Florida Bar Bill Schifino.
In April, the FCRC presented its proposals to the public. It proposed multiple amendments to the constitution. But it is not required to list the proposed amendments individually, one by one. Six of the eight proposals cover more than one proposed constitutional amendment. The amendment regarding lobbying and abuse by public officers and the amendment to end dog racing are the only stand-alone proposals.
This practice of bundling multiple proposed amendments into a single proposal has been criticized because it could potentially mislead or confuse voters by lumping disparate ideas together within a single proposal. The FCRC defends bundling because they say they logically bundled together amendments which deal with similar issues. They argue that bundling will save voters the trouble of wading through multiple pages of amendments on the ballot.
The very first proposal on the FCRC’s list offers a good example of bundling. This single proposal covers three proposed amendments. One of the three proposed constitutional amendments within this single proposal is referred to by its proponents as “Marsy’s Law,” named after a case in California which involved a woman murdered by an ex-boyfriend. It would add certain rights for victims of crimes, such as the right to be notified and heard during some of the major developments in the criminal proceedings.
Another amendment within this single proposal would raise the retirement age of judges from 70 to 75. The third proposed amendment within this proposal would “require a state court or an administrative law judge to interpret a state statute or rule de novo in litigation between an administrative agency and a private party and not merely defer to the administrative agency’s interpretation.”
Voters will not be able to choose among these three proposed amendments within this single proposal. Voters will be required to vote up or down on the entire proposal.
Another proposal would ban offshore oil and gas drilling. It would also prohibit vaping in enclosed workspaces. Voters won’t be able to choose one proposed amendment over the other. Again, it is either up or down on the entire proposal.
Many voters may just decide that it is too much trouble to study all the proposed amendments and parse them out. They may simply reject the whole thing, or not vote at all. But each of these amendments is likely to have niche constituencies and special interest groups which will strongly advocate for or against them. They will mobilize their supporters to vote for or against these proposals, even if the majority of voters decides to sit it out.
Although the ballot may seem confounding, Floridians should not allow small groups of special interest advocates to decide things for them. The Florida Constitution is the governing document for all of us. Voters should become engaged and informed, and they should be ready to vote in November in accordance with an educated understanding of what these proposals will do. We will not get this opportunity again for another 20 years.
Oscar Sanchez is a Florida Supreme Court civil circuit and appellate certified mediator with OASMediation in Miami, where he focuses on being a mediator, arbitrator and court-appointed special magistrate. Previously, he was a civil litigator and trial lawyer.