Next week, the 37 members of the Florida Constitution Revision Commission hold the unique power to approve or not approve what proposals will go on the 2018 ballot this November for voters to consider adding as amendments to our state’s Constitution.
Given the substance of a number of the remaining proposals, and the grouping of those proposals, there are a number of concerns the commission should consider.
First, as discussed in prior public addresses, many of the remaining proposals—irrespective of their underlying merits—do not belong in our Constitution. As then-Chief Justice Sundberg noted in his dissent in State v. Firestone, 386 So.2d 561, 568 (Fla. 1980), “[t]he predecessor Constitution of 1885 had been repeatedly and persistently amended by inclusion of matters which did not rise to fundamental constitutional dignity. A major objective of the original Constitutional Revision Commission was to impose a more orderly and stringent process for amendment of the 1968 Constitution to curb the excesses which beset the 1885 Constitution.”
A number of the present proposals—regulating everything from naming of buildings to greyhound racing, civics lessons to vaping in public places—objectively do not rise to the level of fundamental constitutional dignity because they do not govern state government, protect fundamental rights and can be enacted through the legislative process. The commission must act to prevent these from being placed on the ballot and protect our constitution from unnecessary clutter.
Relatedly, the commission’s present grouping of proposals makes the problem worse. By grouping proposals, the commission is effectively depriving the voters of their right to choose what does and does not belong in Florida’s foundational text on a proposal-by-proposal basis. As a consequence, these groupings not only fail to curb the excesses of the constitutional amendment process, they deny the voters the ability to do so as well.
Although not required to do so, the commission should adhere to a single-subject requirement. All proposed amendments that come to the voters—apart from those produced through this process—must be limited to a single subject.
The Florida Supreme Court has recognized that one of the principal reasons for the existence of this requirement is “to prevent ‘logrolling,’ a practice that combines separate issues into a single proposal to secure passage of an unpopular issue.” Advisory Opinion to the Atty. Gen. re: Voluntary Universal Pre-Kindergarten Educ., 824 So. 2d 161, 165 (Fla. 2002).
Logrolling is of particular concern as it relates to constitutional clutter. Regardless of how popular an issue may be, combining proposals of constitutional concern with “ordinary law” proposals is unfair to the voters, and ultimately can result in an unnecessary and improper constitutional amendment. Voters should not be forced to consider approving proposals about which they have no interest, or worse, to consider propositions they would otherwise oppose in order to approve completely unrelated proposals that they like. The commission owes it to the voters to allow every proposal to rise or fall on its own respective merits.
The commission should exercise restraint and reject proposals that detract from the basic purpose of a constitution. The commission should exercise restraint by asking whether the proposal protects a fundamental right, and whether there is a reason why the proposal cannot be enacted by the legislature. If the answer is no to these questions, then the commission should vote to reject the proposal.
The commission should also reject any attempts at logrolling and embrace a single-subject ballot scheme. The commission should reject any proposal that groups unrelated propositions because doing so, while not unconstitutional, is nonetheless unfair to the people of Florida. We must keep our state Constitution clean.
Major Harding is a former Chief Justice of the Florida Supreme Court.