The least understood and most invisible amendment on the ballot is not generating campaign enthusiasm among supporters or opponents. Amendment 3 -- titled "Prospective Appointment of Certain Judicial Vacancies" -- even sounds ponderous.
But make no mistake, the impact could be considerable, influencing the direction of the state's top courts and judicial decisions for generations.
Florida's Republican-controlled Legislature placed this measure on the ballot after highly partisan voting in both chambers. That suggests politics are at play.
GOP lawmakers invented a pending "constitutional crisis" and then devised a solution. With three of the seven justices on the Florida Supreme Court forced into retirement concurrently in January 2019 -- on the very day a newly elected governor will take office -- Amendment 3 shifts the power to nominate replacements from the incoming chief executive to the outgoing one.
The three justices -- R. Fred Lewis, Barbara Pariente and Peggy Quince, representing the court's liberal wing -- will leave the bench on Jan. 8, 2019 because of the mandatory retirement age of 70. All three inspired the wrath of the GOP, which organized a bid to oust them during a regular merit retention vote in 2012.
Republicans claim the nominating switch will ensure the court's business will not be delayed by what can be a drawn-out process that lasts months. But court rules expose this as a ruse because retiring justices are allowed to remain on the bench to dispose of caseloads.
Amendment proponents also claim current law is vague on whether the old or new governor commands these appointments. But that argument holds little water considering the state Supreme Court ruled in 2006 that a judicial vacancy takes place the moment a term expires, thus disqualifying the outgoing governor from nominating new judges.
By state law, a governor is barred from appointing justices until after their terms expire -- the same time a governor's term ends. Thus, the 2006 ruling upheld that law. That does not appear vague.
Amendment foes suspect Republicans hope to stack the Supreme Court with conservatives in 2019. That would only occur should GOP Gov. Rick Scott defeat Democrat Charlie Crist this year, making Amendment 3 a political gamble for Republicans -- one that could boomerang.
These so-called "prospective" appointments also apply to district courts of appeal.
Regardless of the motivations behind the amendment, the political implications should concern voters. One of the primary problems with Amendment 3 is it empowers an outgoing governor who cannot be held accountable to the electorate but who leaves office with influential appointments that will impact state policy for years.
Should this issue even need to be addressed, that should be left to the state's Constitution Revision Commission, which next convenes in 2017.
The commission only meets once every 20 years to weigh potential amendments to place before voters, and the next gathering would beat the 2019 retirement of the three justices.
Amendment 3 is political gamesmanship, and the Herald recommends a no vote.
"Proposing an amendment to the State Constitution authorizing the Governor to prospectively fill a vacancy in a judicial office to which election for retention applies that results from a justice's or judge's reaching the mandatory retirement age, failure to qualify for a retention election, or failure to be retained through election. Under current law, the Governor may not act to fill such vacancies until after the current justice or judge completes his or her term."