Citizen initiatives, even popular ones, are exceedingly hard to pass in Florida. This legislative term, coming off an election in which abortion rights and marijuana decriminalization initiatives came close, Gov. Ron DeSantis and his legislative allies are moving to kill the process for good with a package of unpopular and prohibitive restrictions similar to ones that courts have invalidated elsewhere.
Direct democracy in Florida
Florida is one of 16 states that allow citizens to initiate constitutional amendments without legislative approval. This power is an important form of direct democracy, enabling citizens to enact specific policies directly through a popular vote rather than indirectly through elected representatives. Florida also allows the legislature to refer constitutional amendments to the ballot for a popular vote, an indirect democracy mechanism that exists in every state other than Delaware.
Whereas most of these 16 states instituted direct democracy during the Progressive Era at the turn of the 20th century, Florida is one of a handful of states that adopted it later, in the 1960s. During both these periods, reformers sought to create a check on state legislatures out of a concern that they are prone to self-dealing or capture by special interests. In Florida, this reform came about in response to the legislature dragging its heels for decades on redrawing outdated legislative districts to guarantee equal representation. Unsurprisingly, incumbent lawmakers who had benefited from malapportioned districts were not inclined to redistrict themselves out of office. Eventually, federal courts forced redistricting that altered the balance of power sufficiently to open the door to a much-needed constitutional convention and the ratification of a new Florida Constitution in 1968.
Over the years, Florida voters have used direct democracy to enact a host of popular policies that the legislature had refused to pass, such as minimum wage increases, environmental protections, term limits for certain elective offices, voting rights restoration for citizens with past felony convictions, and medical marijuana legalization.
Recent attacks on citizen initiatives
As in some other states, the Florida Legislature has tried to weaken this check over the years. It has had some successes, most notably in 2006 when it persuaded voters to raise the threshold of votes needed to pass a ballot measure from 50 percent to 60 percent. Only a few states have such an onerous requirement. Despite this hurdle, advocates have persisted in proposing initiatives in Florida, such as two 2024 ballot measures that would have protected abortion rights and decriminalized recreational marijuana.
Seeing the popularity of the abortion rights initiative, DeSantis and state lawmakers went to new lengths to (narrowly) prevent it from meeting the 60 percent threshold, including by spreading state-sponsored disinformation and intimidating media outlets and campaign workers. Despite these brazen efforts, both initiatives won majority support and came close to passing, drawing attention to the fact that the state government is out of step with public opinion on these key social issues.
Rather than risk another such battle, state Republicans are toying with three bills that would essentially shut down direct democracy in Florida. State Sen. Blaise Ingoglia introduced Senate Bill 1414, an unprecedented measure proposed by DeSantis that would make it impossible for sponsors to even get an initiative on the ballot. Under the guise of “strengthening initiative petition integrity,” S.B. 1414 would, among other restrictions, bar advocates from collecting the required signatures, instead requiring each individual signatory to submit the form by mail or in person. Simply put, there’s no way sponsors could gather the nearly 1 million required signatures without collecting them directly through volunteers or paid staff.
Legislators have also introduced two other bills, House Bill 1205 and Senate Bill 7016, that would deter initiatives through a combination of steep fees, impractical deadlines, invasive disclosure requirements for signatories (such as mandating that they include their driver’s license number or part of their social security number on the petition form), state mailings to all signatories (further compromising their privacy), the authorization of nuisance suits, and harsh criminal and civil penalties for even good-faith mistakes or missed deadlines.
Restrictions on the citizen initiative process are extremely unpopular, including among Florida’s Republican voters. Across the country, when put to a popular vote, they almost always fail. That’s why DeSantis and his allies aren’t bothering to try to persuade voters and instead are proposing that the legislature act unilaterally.
Legal protections for voters and initiative proponents
In seeking to bypass voters, legislators are on a collision course with long-standing state and federal constitutional law.
To begin with, the proposed bills would violate the landmark 2010 Florida case Browning v. Florida Hometown Democracy, in which the state supreme court invalidated legislation that would have created a path for petition signatories to revoke their signatures. In striking down this provision, the court confirmed that Article XI established a fundamental right to amend the constitution by initiative as a check on the legislature. The court then laid out a clear and demanding test for when the legislature can infringe on that right: Any legislative restriction must either be “expressly authorized” in the constitution, “implicitly contemplated,” or “necessary for ballot integrity.”
The court cited a statute creating a signature-verification process as an example of a permissible restriction that is “implicitly contemplated” by the Florida Constitution, as the charter requires that initiative petitions be signed by a specified number “of electors.” By contrast, the court explained, the constitution doesn’t contemplate a revocation procedure for signatures. Nor was such a procedure necessary for ballot integrity, because Florida already maintains integrity through updated voter registration lists, signature-verification procedures, and criminal penalties for fraud or forgery.
Under Browning, if the legislature wants to restrict direct democracy in a way that isn’t contemplated by the constitutional text and isn’t necessary for ballot integrity, it must put the restriction to a popular vote and garner 60 percent support. The ruling fits a pattern of state supreme courts closely scrutinizing, and usually rejecting, legislative efforts to gut direct democracy without voter approval.
Without question, S.B. 1414’s ban on third-party signature canvassing violates Browning. Nothing in the constitution “contemplates” such a harsh restriction. On the contrary, the constitution provides that the sponsors initiate the process by submitting the required signatures — as is standard in states that have a citizen initiative process. Nor can DeSantis and his allies claim that S.B. 1414 is necessary for ballot integrity; as Browning made clear, Florida law already has ample safeguards against fraud. Many if not most of the other restrictions in S.B. 1414, S.B. 7016, and H.B. 1205 are unconstitutional for similar reasons: Nothing in the state constitution contemplates requiring signatories to publicize sensitive personal information or imposing heavy criminal penalties on canvassers for minor mistakes, such as a failure to submit a signature within 10 days of collecting it.
In addition to violating state constitutional protections around the initiative process, S.B. 1414 and the other bills would violate federal free speech protections that apply to elections more generally. In the 1988 case Meyer v. Grant, the U.S. Supreme Court held that Colorado had violated the First Amendment when it banned initiative sponsors from paying circulators. Critically, the Court found that petition circulation is “core political speech” because it involves “interactive” and “one-on-one communication” of a political message. Like the Florida Supreme Court in Browning, the U.S. Supreme Court was unimpressed with the state’s conclusory argument that it had to tightly restrict canvassing to prevent fraud. The Court pointed out that not only was there no actual evidence of canvassing fraud, but the inherent risks were small compared to general risks of election fraud since canvassing merely gets an initiative on the ballot, and it still has to win support from voters to pass. The Court also rejected Colorado’s defense that it had left open other avenues of communication and advocacy, countering that “the First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.” The justices were particularly offended by Colorado’s use of criminal penalties to enforce restrictions on signature gathering.
The Court reaffirmed Meyer years later and extended it to other restrictions, such as requirements that circulators disclose personal information, in Buckley v. American Constitutional Law Foundation. In recent years, lower courts have reliably applied Meyer and Buckley to strike down various restrictions that make it harder for initiative sponsors to collect signatures.
Given these precedents, S.B. 1414’s ban on volunteer signature collection is flagrantly unconstitutional, going far beyond the restrictions that the Supreme Court and lower courts have consistently overturned. The other pending Florida bills that would deter political speech through felony penalties also violate Meyer and its progeny. In fact, they include specific restrictions — bans on noncitizen canvassers and criminal penalties for retaining any voter information — that a federal district court has already blocked in a set of consolidated cases challenging 2023 Florida legislation.
All told, S.B. 1414, S.B. 7016, and H.B. 1205 are blatant and unconstitutional attempts to grab power from Florida voters and erase a fundamental right that they have held for nearly 60 years. No one should be under any illusion that these bills are about strengthening election integrity.
Gabriel Levitt and Connie Wu provided research assistance for this piece.
