Florida Cannabis Legalization Campaign Could Face New Legislative Hurdles to Secure Spot on 2022 Ballot
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Florida Cannabis Legalization Campaign Could Face New Legislative Hurdles to Secure Spot on 2022 Ballot

The Florida Supreme Court will decide whether Make It Legal Florida’s adult-use ballot initiative qualifies for the ballot.

May 14, 2020

Make It Legal Florida gathered enough signatures last year to trigger a judicial review of its ballot initiative to legalize adult-use cannabis in the state, but new laws recently enacted by Gov. Ron DeSantis could present new legislative hurdles for the campaign as it continues its efforts to secure a spot on the 2022 ballot.

Make It Legal Florida, which is backed by cannabis industry stakeholders such as MedMen and Parallel (formerly known as Surterra Wellness), launched efforts last fall to qualify an initiative for the 2020 ballot that would allow adults 21 and older to purchase cannabis at the state’s existing medical cannabis dispensaries (called medical marijuana treatment centers or MMTCs in Florida).

As the Feb. 1 deadline for signatures loomed, Make It Legal Florida and Regulate Florida, which tried to bring a competing adult-use legalization initiative to the state’s 2020 ballot, fell short on signatures, and both campaigns ultimately refocused their efforts on the 2022 election.

Meanwhile, DeSantis signed two key pieces of legislation into law that could present significant obstacles to not only these petitions, but all ballot initiatives in the state, according to Matthew Ginder, partner in Greenspoon Marder’s Cannabis Law Practice Group.

All eyes are now on the Florida Supreme Court as it considers whether to approve Make It Legal Florida’s ballot initiative, as it could set a precedent of what’s to come.

“There’s been some effort by the legislature to make it more difficult for ballot initiatives to make it to the ballot, and they’ve done that through passing bills making it more difficult to collect signatures,” Ginder told Cannabis Business Times.

House Bill 5, which passed during Florida’s 2019 legislative session, changed compensation requirements for petitioners, potentially making it more costly for initiative sponsors to obtain signatures, Ginder said.

In addition, during the state’s 2020 legislative session, the legislature passed Senate Bill 1794, which created a new set of hurdles for sponsors to place initiatives on the state’s ballot.

S.B. 1794 increases the number of verified signatures required to trigger judicial review. Prior to the legislation, an initiative with 10% of the total number of required signatures would trigger a review. Under the new law, 25% of the total signatures are required.

“It puts you further down the road before finding out whether that ballot initiative is in fact valid and can move forward to making the ballot,” Ginder said.

In addition, before the law change, the Supervisors of Elections had 30 days to verify the signatures and seek judicial review on ballot initiatives that met the signature threshold. S.B. 1794 now extends that deadline to 60 days.

“These seem to be efforts to run out the clock on these sponsors who are trying to get [their] petition on the ballot,” Ginder said.

The provision of S.B. 1794 that could threaten Make It Legal Florida’s initiative the most, however, is one that asks the Florida Supreme Court to determine whether a ballot initiative is valid under the U.S. Constitution.

“This may have implications for an adult-use initiative because I can see a party—the attorney general or any other interested party—making the argument that it should not be on the ballot because cannabis remains federally illegal.,” Ginder said. “This could be a significant hurdle.”

The Florida Supreme Court heard oral arguments May 6, Ginder said, and, sure enough, the attorney general’s office made that argument. The attorney general argued that the ballot summary that will be presented to voters under Make It Legal Florida’s initiative is misleading because although Florida law permits adult-use cannabis legalization, federal law does not, and federal law would supersede state law, making the ballot summary moot.

“That really is the key argument in this case, the key issue,” Ginder said. “That will be an unprecedented issue because that’s never been a requirement for Supreme Court review before.”

While the court’s ultimate decision remains to be seen, the outcome will likely set a precedent in the state that could have far-reaching consequences on adult-use legalization efforts.

“I think [the new laws] ultimately raise the stakes on whether Make It Legal’s ballot initiative passes Supreme Court review,” Ginder said. “If it doesn’t pass Supreme Court review and they have to start over, then all of these new laws making it more difficult to get it on the ballot will be triggered.”

Make It Legal Florida’s campaign could also be derailed by another pending threat: Florigrown’s medical cannabis case, which has also been taken up by the Florida Supreme Court.

Tampa-based Florigrown sued the state after being denied a business license in a case that underscores the tension between Florida’s 2016 voter-approved medical cannabis legalization measure and the legislature’s attempts to implement that measure. In short, the case challenges the constitutionality of Florida’s vertically integrated licensing structure and its licensing cap, and the ruling could have significant ramifications on the state’s medical cannabis program, which is ultimately the basis of Make It Legal Florida’s proposed ballot initiative.

“Their ballot initiative incorporates our medical marijuana laws on the licensing structure side, [so the Florigrown case] even has ramifications, potentially, on this amendment and what the licensing structure would be if this amendment gets on the ballot and passes,” Ginder said.

In any case, if the Supreme Court finds that Make It Legal Florida—or any other adult-use cannabis legalization campaign, for that matter—does not meet the new standards to make the ballot, cannabis policy reform in Florida will face a new set of challenges, Ginder said.

For one thing, a legislative effort may be legalization’s only chance at that point.

“I think it’s going to be interesting to see the efforts made at the legislative level for adult-use reform,” Ginder said. “Historically, I would say there was no chance, but [with] cannabis reform and adult-use legalization, there’s a more compelling argument to be made post-COVID-19 because of the direct benefits to the state between jobs and tax revenue. Those are going to be two crucial things that are needed at the state level, … so there’s going to be a good compelling argument to create tax revenue, and one of those ways could be through adult-use [legalization]."