Florida Justices Hold Election Sway With Abortion, Pot Rulings

Abortion rights and recreational pot ballot measures — two massive voter turnout engines — have one last hurdle that cou ld prevent them from appearing on Florida’s 2024 ballot: the state’s all-Republican Supreme Court.

The Florida high court is stacked with conservatives appointed by Gov. Ron DeSantis (R), who have applied the brakes on ballot measures at a pace far outstripping prior benches, according to Bloomberg Law data analysis. This Wednesday they’ll hold oral argument over a ballot measure that would add a right to abortion to the state constitution, and the justices are also weighing whether voters should consider a measure decriminalizing cannabis.

The rulings could reverberate across national politics with control of the presidency and Congress on the line, activists and political leaders say. The third-largest state may be a November focal point for the presidential race between Donald Trump and Joe Biden. Sen. Rick Scott (R) faces re-election after he narrowly won his seat, and Democrats are targeting US House districts they hope could help to flip control of the chamber — if the party can get younger voters and women to turn out through a focus on abortion and cannabis.

“Having the ballot measures fundamentally shifts the demographics of who is targeted for turnout and who turns out,” Florida Democratic Party Chairwoman Nikki Fried said. “This is going to be the tactic. We’re going to run on these issues that voters care about.”

However, with an 800,000-registered-voter advantage for the GOP in Florida, the ballot measures might not have a big impact unless Trump’s “self-inflicted political wounds” cause his Florida poll numbers to dip and national Democrats decide to focus more on the Sunshine State, said conservative consultant Brett Doster, president of Front Line Strategies Inc.

“If they start pumping massive money in here because head-to-head it looks close, I could see the constitutional amendments mattering,” he said. “But they’re in really, really deep water right now.”

Tougher Court

The Florida Supreme Court plays a key but limited gate-keeping role in the ballot measure system.

The Florida attorney general must seek an opinion on whether a ballot measure’s summary language is misleading and whether the substance of the measure covers a “single subject.”

Their decisions will set the tone for ballot measures across the country, said Chris Melody Fields Figueredo, the executive director at the national progressive Ballot Initiative Strategy Center. Many more liberal ballot measures will come before conservative courts across the country in 2024. “Florida is the first to give us an understanding of the role courts will play in this election year,” she said.

The court review is intended to stop ballot committees from stuffing things voters don’t want into an unrelated measure that voters desire, but the court was traditionally deferential to organizers. That’s taken a hard turn.

In the decade between 2009 and 2019, the court disapproved of only one ballot measure. In the four years since DeSantis appointments changed the tilt of the court, justices rejected half of the eight ballot measures before them.

“There’s been a shift in the court,” said Aadika Singh, a lawyer with the Public Rights Project, which is representing former state Republican officials who are urging the court to approve the abortion amendment’s ballot measure. “This case is an opportunity for the Florida Supreme Court to really clarify and finalize what their law-based reading of the requirements are.”

Attorney General Ashley Moody (R) is leading opposition, arguing the abortion measure’s language barring state regulation of abortion “before viability” could confuse voters into believing the law would apply only to fetuses that wouldn’t survive.

In this way, the language lays “ticking time bombs that will enable abortion proponents later to argue that the amendment has a much broader meaning than voters would ever have thought,” Moody said in her brief. “It hides behind an uninformative parroting of the text of the amendment to veil from voters its potentially expansive scope.”

No ‘Silver Bullet’

Putting abortion and pot measures on the ballot has juiced turnout and impacted outcomes in recent cycles.

Last November, an abortion-and-pot ballot measure pairing roughly doubled normal voter turnout in Ohio in an off-year election. A supreme court race in swing-state Wisconsin turned into a blowout for a judge running on abortion rights. In between biennial congressional elections, Democrats frequently point to special elections where they claim abortion helps drive voters to polls in those generally low-turnout races.

But these issues are far from a “silver bullet” for liberal candidates in a presidential election year, said Kyle Kondik, an elections analyst and managing editor of Sabato’s Crystal Ball at the University of Virginia Center for Politics.

“The Presidential race is what’s driving turnout,” he said. “Besides, you’re going to have some Republican voters voting ‘yes’ on these things, and some Democratic voters voting ‘no.’”

That trend was confirmed by Ohio’s results, said Dr. Thomas Sutton, a political science professor and interim provost at Baldwin Wallace University. The university’s polling data shows high levels of crossover support for these liberty-focused issues from Republican voters, and Florida conservative voters will respond similarly, he said.

Fried said Scott’s Senate seat, as well as the seats held by Rep. Anna Paulina Luna (R) near St. Petersburg and Rep. Maria Elvira Salazar (R) in Miami, are possible flips if Democrats can transmute popularity for ballot measures into liberal candidate support, she said.

That may be a hard sell this year, Sutton said. While these ballot measures could mitigate against voters staying home out of “disgust” for Biden and Trump, the parties “must put in the legwork” to link these measures to their candidates in order to translate these hesitant voters into an advantage in close federal races, he said.