Advisory Opinion to the Attorney General Re: Citizenship Requirement to Vote in Florida Elections

• Court: Supreme Court of Florida
• Decided: January 16, 2020
• Docket: SC19-1165
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC19-1165 ____________

ADVISORY OPINION TO THE ATTORNEY GENERAL RE: CITIZENSHIP REQUIREMENT TO VOTE IN FLORIDA ELECTIONS.

January 16, 2020

PER CURIAM.

The Attorney General of Florida has requested this Court’s opinion as to the

validity of an initiative petition circulated pursuant to article XI, section 3 of the

Florida Constitution. We have jurisdiction. See art. IV, § 10; art. V, § 3(b)(10),

Fla. Const. We approve the proposed amendment for placement on the ballot.

BACKGROUND

On July 15, 2019, the Attorney General petitioned this Court for an advisory

opinion regarding the validity of an initiative petition sponsored by Florida Citizen

Voters (the Sponsor) and titled “Citizenship Requirement to Vote in Florida

Elections.” Namely, the Attorney General asks whether the proposed amendment

complies with the single-subject requirement of article XI, section 3 of the Florida

Constitution, and whether the ballot title and summary of the proposed amendment comply with the clarity requirements of section 101.161(1), Florida Statutes

(2019). We invited briefing from interested parties regarding the validity of the

initiative petition. We received one brief, from the Sponsor, arguing in favor of the

proposed amendment. And we received no briefs in opposition to the proposed

amendment. On October 21, 2019, we dispensed with oral argument.

The full text of the proposed amendment, which would amend article VI,

section 2 of the Florida Constitution, provides:

ARTICLE VI. Section 2. Electors.

Every citizen Only a citizen of the United States who is at least eighteen years of age and who is a permanent resident of the state, if registered as provided by law, shall be an elector of the county where registered.1

The ballot title for the proposed amendment is: “Citizenship Requirement to Vote

in Florida Elections.” And the ballot summary states:

This amendment provides that only United States Citizens who are at least eighteen years of age, a permanent resident of Florida, and registered to vote, as provided by law, shall be qualified to vote in a Florida Election.

1. The proposed amendment contains a de minimis drafting error in that the proposed amendment either inadvertently strikes or inadvertently neglects to underline the word “citizen.” The text of the proposed amendment should have been drafted in relevant part either as “Every Only a citizen of the United States” or as “Every citizen Only a citizen of the United States.” Because it is abundantly clear that the word “citizen” is not being permanently stricken from article VI, section 2, we conclude that there is no reasonable probability of any voter confusion and that this scrivener’s error is not a basis for invalidating the proposed amendment.

-2- ANALYSIS

Standard of Review

In reviewing the validity of an initiative petition, “[t]his Court has

traditionally applied a deferential standard of review.” Advisory Op. to Att’y Gen.

re Use of Marijuana for Certain Med. Conditions (Medical Marijuana I), 132 So.

3d 786, 794 (Fla. 2014). “[T]he Court limits its inquiry to two issues: (1) whether

the amendment itself satisfies the single-subject requirement of article XI, section

3, Florida Constitution; and (2) whether the ballot title and summary satisfy the

clarity requirements of section 101.161, Florida Statutes.” Advisory Op. to Att’y

Gen. re Water & Land Conservation—Dedicates Funds to Acquire & Restore Fla.

Conservation & Recreation Lands, 123 So. 3d 47, 50 (Fla. 2013). “In order for the

Court to invalidate a proposed amendment, the record must show that the proposal

is clearly and conclusively defective on either ground.” Advisory Op. to Att’y Gen.

re Amendment to Bar Gov’t from Treating People Differently Based on Race in

Pub. Educ., 778 So. 2d 888, 891 (Fla. 2000).

Here, no briefs were submitted in opposition to the initiative petition. And

our independent review—which is limited to two issues—yields no basis for

concluding that the initiative petition meets the “high threshold” of being “clearly

and conclusively defective.” Advisory Op. to Att’y Gen. re Limits or Prevents

Barriers to Local Solar Elec. Supply, 177 So. 3d 235, 246 (Fla. 2015).

-3- Single-Subject Requirement

Article XI, section 3 of the Florida Constitution provides that initiative

petitions like the one here “shall embrace but one subject and matter directly

connected therewith.” The purpose of this single-subject requirement is to

“prevent[] a proposal ‘from engaging in either of two practices: (a) logrolling; or

(b) substantially altering or performing the functions of multiple branches of state

government.’ ” Medical Marijuana I, 132 So. 3d at 795 (quoting Water & Land

Conservation, 123 So. 3d at 50-51). “A proposed amendment meets this test when

it ‘may be logically viewed as having a natural relation and connection as

component parts or aspects of a single dominant plan or scheme.’ ” Advisory Op.

to Att’y Gen. re Fairness Initiative Requiring Legislative Determination that Sales

Tax Exemptions & Exclusions Serve a Pub. Purpose, 880 So. 2d 630, 634 (Fla.

2004) (quoting Fine v. Firestone, 448 So. 2d 984, 990 (Fla. 1984)). In other

words, the proposed amendment must have “a logical and natural oneness of

purpose.” Advisory Op. to Att’y Gen. re Voting Restoration Amendment, 215 So.

3d 1202, 1206 (Fla. 2017) (quoting Advisory Op. to Att’y Gen. re Rights of Elec.

Consumers Regarding Solar Energy Choice, 188 So. 3d 822, 827 (Fla. 2016)).

Here, the proposed amendment meets this test. It does not engage in either of the

two prohibited practices.

-4- Beginning with the first prohibited practice of “logrolling,” this Court has

defined that practice as “a practice wherein several separate issues are rolled into a

single initiative in order to aggregate votes or secure approval of an otherwise

unpopular issue.” Advisory Op. to Att’y Gen.—Save Our Everglades, 636 So. 2d

1336, 1339 (Fla. 1994). The proposed amendment does not logroll. It merely

makes a minor change to existing constitutional language. That is, it amends

article VI, section 2—a constitutional provision that “discusses voter

qualifications,” Am. Fed’n of Labor & Cong. of Indus. Orgs. v. Hood, 885 So. 2d

373, 375 (Fla. 2004)—by replacing the word “Every” with “Only a.” In doing so,

the proposed amendment makes directly clear that United States citizenship and

the other items set forth in article VI, section 2 are voter eligibility requirements.

Those voter eligibility requirements are “component parts or aspects of a single

dominant plan or scheme,” Sales Tax Exemptions & Exclusions, 880 So. 2d at 634

(quoting Fine, 448 So. 2d at 990), to constitutionalize certain language to make

clear that only United States citizens who satisfy those requirements may

participate in Florida elections.

As to the second prohibited practice, the proposed amendment does not

“substantially alter[] or perform[] the functions of multiple branches of state

government.” Medical Marijuana I, 132 So. 3d at 795 (quoting Water & Land

Conservation, 123 So. 3d at 50-51). In fact, it does not appear that the proposed

-5- amendment will alter—let alone substantially alter—any functions of any branches

of state government. Although article VI, section 2 currently uses the inclusionary

word “Every” as it relates to electors, the relevant voter-eligibility statute uses the

exclusionary word “only.” See § 97.041(1)(a), Fla. Stat. (2019). The proposed

amendment simply constitutionalizes that statutory language.

Ballot Title and Summary

Section 101.161(1), Florida Statutes, sets forth the following requirements

for ballot titles and summaries:

(1) Whenever a constitutional amendment or other public measure is submitted to the vote of the people, a ballot summary of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word “yes” and also by the word “no,” and shall be styled in such a manner that a “yes” vote will indicate approval of the proposal and a “no” vote will indicate rejection. . . . The ballot summary of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. . . . The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.

The purpose of these statutory requirements is “to ensure that the ballot summary

and title ‘provide fair notice of the content of the proposed amendment’ to voters

so that they ‘will not be misled as to [the proposed amendment’s] purpose, and can

cast an intelligent and informed ballot.’ ” Advisory Op. to Att’y Gen. re Voter

Control of Gambling, 215 So. 3d 1209, 1215 (Fla. 2017) (alteration in original)

(quoting Advisory Op. to Att’y Gen. re Right of Citizens to Choose Health Care

-6- Providers, 705 So. 2d 563, 566 (Fla. 1998)). In determining whether a ballot title

and summary comply with section 101.161(1), this Court “consider[s] two

questions: (1) whether the ballot title and summary, in clear and unambiguous

language, fairly inform the voters of the chief purpose of the amendment; and (2)

whether the language of the ballot title and summary, as written, will be

affirmatively misleading to voters.” Medical Marijuana I, 132 So. 3d at 797.

Here, the ballot title and summary easily meet the respective word-limitation

requirements of section 101.161(1). The ballot title and summary also fairly

inform the voters of the chief purpose of the proposed amendment and do not

affirmatively mislead the voters.

In analyzing whether a ballot title and summary clearly and unambiguously

inform the voters of the chief purpose of a proposed amendment, this Court must

evaluate the amendment’s chief purpose. We do so by “look[ing] . . . to objective

criteria inherent in the amendment itself, such as the amendment’s main effect.”

Fla. Dep’t of State v. Fla. State Conference of NAACP Branches, 43 So. 3d 662,

667 (Fla. 2010) (quoting Armstrong v. Harris, 773 So. 2d 7, 18 (Fla. 2000)). Here,

the proposed amendment’s “main effect” is to make directly clear that only United

States citizens who satisfy the requirements of article VI, section 2 are eligible to

vote. The proposed amendment achieves this effect by replacing inclusionary

language with exclusionary language. See § 97.041(1)(a), Fla. Stat. The ballot

-7- title references a “[c]itizenship [r]equirement,” and the ballot summary informs

voters in no uncertain terms “that only United States Citizens who are at least

eighteen years of age, a permanent resident of Florida, and registered to vote, as

provided by law, shall be qualified to vote in a Florida Election.” The ballot title

and summary do not affirmatively state that the proposed amendment “ ‘creates’ or

‘establishes,’ ” Cty. of Volusia v. Detzner, 253 So. 3d 507, 511 (Fla. 2018), a

citizenship requirement—or any other requirement—for voting. Instead, the ballot

summary “accurately describes,” id., in part that “only United States Citizens . . .

shall be qualified to vote in a Florida Election.” That statement “in fact is true.”

Advisory Op. to Att’y Gen. re Right to Treatment & Rehab., 818 So. 2d 491, 498

(Fla. 2002).

In the end, the ballot title and summary “comply with section 101.161(1)

because they are not clearly and conclusively defective.” Solar Energy Choice,

188 So. 3d at 825. Indeed, they are “accurate and informative.” Advisory Op. to

Att’y Gen. re Med. Liab. Claimant’s Comp. Amendment, 880 So. 2d 675, 678 (Fla.

2004). Far from being “affirmatively misleading,” Medical Marijuana I, 132 So.

3d at 797, the ballot summary largely recites in full what would be the entirety of

article VI, section 2, as amended. See Voting Restoration Amendment, 215 So. 3d

at 1208 (“[T]he ballot title and summary also do not mislead voters with regard to

the actual content of the proposed amendment. Rather, together they recite the

-8- language of the amendment almost in full.”). The summary thus “accurately

describe[s] the scope of the text of the amendment.” Advisory Op. to Att’y Gen. re

Term Limits Pledge, 718 So. 2d 798, 804 (Fla. 1998).

CONCLUSION

We conclude that the proposed amendment complies with the single-subject

requirement of article XI, section 3 of the Florida Constitution, and that the ballot

title and summary comply with section 101.161(1), Florida Statutes. Accordingly,

we approve the proposed amendment for placement on the ballot.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

Original Proceedings – Advisory Opinion – Attorney General

Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, and John Guard, Chief Deputy Solicitor General, Tallahassee, Florida,

for Petitioner

James A. McKee, Tallahassee, Florida, and W. Bradley Russell of Foley & Lardner, LLP, Jacksonville, Florida,

for Interested Party, Florida Citizen Voters

-9-