Florida Supreme Court to Decide Whether Marijuana Legalization Can Be Put to Voters
For the second time in three years, the Florida Supreme Court will decide whether voters will get a chance to legalize adult use of cannabis by state constitutional amendment. Back in 2021, the same court said no. Will this time be different?
Florida’s highest court is set to hear oral arguments on November 8 in a case that requires it to navigate the strange interplay between federal and state laws that regulate marijuana in wildly different manners. Under many state laws, marijuana is legal. Simultaneously, under federal law, it is an illegal Schedule 1 drug.
The U.S. Supreme Court confronted this federal/state clash in 2005 in Gonzales v. Raich. There, Californians with medical conditions who used marijuana legally under California’s Compassionate Use Act, which allows seriously ill people in the state access to marijuana for medical purposes, sued to block enforcement of federal drug laws against them. The Court ruled that the Commerce Clause gave Congress the power to criminalize all marijuana under the Controlled Substances Act. Under the Supremacy Clause, this meant that federal officers could arrest people who had marijuana even if possession was legal in the state where they resided — including cancer patients using the drug under a physician’s care.
Back when Raich was decided, nine states had legalized marijuana for medical use and no states had completely legalized it. Eighteen years later, the legal landscape in the 50 states has changed radically. Some 155 million Americans now live in a state where cannabis is legal. At least 15 states have legalized medical marijuana and 20 states plus the District of Columbia have legalized adult recreational use. Oregon has gone further, decriminalizing nearly all drugs in 2020.
One of the states that allows medical marijuana but not recreational use is Florida. Voters in Florida legalized medical use through a ballot initiative in 2016 that required 60 percent of the vote in order to become law. Floridians have also tried to legalize recreational cannabis through the ballot, but they have run into a brick wall at the Florida Supreme Court, which acts as a gatekeeper of ballot measures.
In 2021, advocates managed to gather 891,589 signatures — or 8 percent of the total number of votes cast in the last presidential election, the number required to get a constitutional amendment on the ballot in Florida — to put the marijuana question before voters. But the Florida Supreme Court refused to allow it on the ballot in 2022. In a 5–2 decision, the court said the proposed ballot summary was misleading because it did not clarify that marijuana remained illegal under federal law.
This year, Florida’s advocates of liberalization of cannabis laws have once again gathered the necessary signatures to get the legalization question on the ballot in the 2024 election. This time, the advocates have learned from past mistakes and have clearly stated that federal law still criminalizes marijuana.
Florida Attorney General Ashley Moody is again objecting to having the matter on the ballot. Moody says that “a state constitution has no power to ‘allow’ activity that is independently proscribed by federal law.” She argues that “reasonable voters will be misled by the ballot summary that marijuana use will be lawful in Florida post-amendment.”
The case has attracted national attention. For example, the Cato Institute submitted a brief in favor of putting the ballot initiative to vote. It wrote that “citizen initiatives to amend the state constitution are a tool by which citizens control and check their government” and “a powerful instrument both of individual liberty and of democratic ideals.” As such, “courts should not interpret rules in ways that thwart that purpose.” The Medical Marijuana Business Association of Florida also submitted a brief in support of the ballot initiative, arguing that there is “no distinction between ‘medical marijuana’ and ‘recreational marijuana’ — that is a false construct created by opponents of the proposed amendment.” It said that “marijuana is the same substance regardless of what it is called.”
The issue of marijuana has changed not just at the state level, but at the federal level as well. During the George W. Bush administration, federal agents raided legal dispensaries in California and prosecuted people in the cannabis industry. Under the Obama administration, the Department of Justice (DOJ) took the position that it would not enforce federal marijuana laws against individuals who were in lawful possession under their respective state laws. The Trump administration, with Jeff Sessions as attorney general, reversed this policy. President Biden’s DOJ is still reviewing whether it will revert to the Obama-era approach.
Congress has also gotten into the act of relaxing federal enforcement. In 2014, Rep. Dana Rohrabacher (R-CA) added a rider to the federal budget (known as the Rohrabacher Amendment) that pulls funding from DOJ’s enforcement of federal drug laws in states were medical marijuana is legal. Because of Congress’s habit of relying on continuing resolutions that contain all the past budget’s riders, the Rohrabacher Amendment is still in effect today, though that may change when Congress passes a new spending bill.
Adding to the layers of strangeness of federal drug policy, on the eve of the 2022 election, President Biden decided to pardon everyone with federal convictions for mere possession of marijuana. But meanwhile, the DOJ still prosecutes people for trafficking marijuana. And even the Rohrabacher Amendment doesn’t reach recreational use.
The final decision on whether Florida voters get a chance to liberalize marijuana policy in the Sunshine State in 2024 lies with the state’s high court. Polling indicates that if the question is put to a vote, Florida is likely to legalize recreational marijuana for adult use. But that’s only if the Florida justices aren’t a direct-democracy buzzkill.
Ciara Torres-Spelliscy is a professor of law at Stetson University College of Law and a Brennan Center fellow.