Activists in Florida are collecting signatures to put a constitutional amendment on the ballot in 2022 to expand Medicaid, which if approved could provide health insurance coverage to more than 800,000 additional residents. Florida is one of 14 states nationwide, eight of them in the South, that have declined to expand Medicaid under the Affordable Care Act.
But to get on the ballot, the proposal will have to survive the conservative Florida Supreme Court, which has to approve the amendment and the ballot language describing it.
The Medicaid expansion amendment has already obtained the signatures required to trigger review by the court, which is one of the most conservative high courts in the U.S. Both chambers of the Republican-led legislature filed briefs with the court arguing the ballot language is misleading. The court recently rejected as misleading a proposal that would have ended the monopoly of energy utility companies.
A bill passed by the Florida legislature this month would give the court another potential reason to block the amendment: It would empower the state Supreme Court to keep citizen amendments off the ballot if it determines that they violate the U.S. Constitution. Giving the court such a role would be unprecedented because, while it has the final say on interpreting the Florida Constitution, its decisions under the federal constitution can be disregarded or overturned by federal courts.
Few state courts have been willing to strike down proposed constitutional amendments for violating the U.S. Constitution, according to a 2012 law review article by Judge Scott Kafker of the Massachusetts Court of Appeals. Kafker argues that state courts should intervene only when proposed amendments obviously violate the U.S. Constitution, such as an amendment mandating racial segregation. "If a state court misinterprets the federal Constitution and strikes an initiative from the ballot erroneously," he writes, "it has interfered with the right of the people to effect constitutional change."
As the Florida Supreme Court considers the amendment, calls to expand Medicaid have grown louder in the midst of the coronavirus pandemic. Polling has shown that Medicaid expansion is supported by the vast majority of Floridians across the state. Florida has one of the highest rates of uninsured people. One-fifth of the state's working-age population lacks health insurance.
Raising the bar for citizens
The sponsor of the proposed Medicaid amendment, Florida Decides Healthcare, had hoped to collect enough signatures to get Medicaid expansion on the ballot this year. But new hurdles enacted by the legislature kept the proposal off the ballot until at least 2022.
The bill awaiting DeSantis' signature would also enact new hurdles for other amendments proposed for the 2022 ballot. It raises the number of signatures required to trigger review by the court from 10 percent of voters who participated in the last presidential election to 25 percent. The current 10 percent signature threshold amounts to around 75,000 voters, but the new rules would require 192,000 signatures, according to the Florida Phoenix.
The bill also doubles the number of counties in which citizens must collect signatures. The groups sponsoring amendments would have to collect signatures in more than half of the state's 27 congressional districts. This change is similar to one made last year by legislators in Arkansas, the only other Southern state that allows citizen-initiated constitutional amendments.
Progressive groups have called on DeSantis to veto the bill, the latest in a series of laws passed making it harder for citizens to amend their constitution.
In the 2018 election, Floridians approved a constitutional amendment restoring voting rights to people with felony convictions, though the legislature subsequently passed a law requiring them to first pay court fines and fees. And this year, Florida voters will decide whether to raise the statewide minimum wage to $15 per hour and legalize marijuana. A proposal to ban assault weapons failed to gather enough signatures for 2020, but it is being reviewed by the court to get on the ballot in a later election.
Jodi James, who leads the group sponsoring the marijuana legalization amendment, warned that the legislature's changes "will make it impossible to operate successfully." She warned that they would raise the costs for citizen amendments, and "only billionaires and large corporate interests will have the resources required to fund any effort — regardless of its actual popularity with voters — to gather signatures in the state."
In addition to new statutory hurdles, the Florida Supreme Court recently approved for the ballot a proposed amendment that would make it harder for citizens to amend the constitution. The measure was sponsored by a political committee that received a $1.5 million donation from a secret-money nonprofit that does not disclose its donors.
Reshaping the court
When DeSantis took office in 2019, he filled three empty seats on the Florida Supreme Court. His picks were vetted and interviewed by Leonard Leo, head of the conservative Federalist Society. DeSantis' lawyer recently spoke to the Federalist Society's Florida conference and said that adherence to the group's ideology is the "singular test" for the governor's nominees.
DeSantis pledged on the campaign trail to change the ideology of the state Supreme Court, and he hasn't been shy about pursuing that goal. For example, his office pressured a judicial nominating commission to approve a certain candidate. In addition, DeSantis tried to nominate his former legal counsel as the state's chief administrative law judge, though Republican legislators refused to confirm him, citing concerns about his qualifications.
Two of DeSantis' high court appointees are now serving on a federal appeals court, having been nominated by President Trump shortly after they were appointed by DeSantis. The state's judicial nominating commission, a majority of which is appointed by the governor, sent DeSantis a list of potential replacement nominees in late January.
The Florida Constitution requires DeSantis to choose two justices within 60 days, but the governor is ignoring the deadline. DeSantis said he's been too busy dealing with the coronavirus pandemic to make a decision.
Adam Richardson of Slate pointed out that "the clear and unambiguous language of the constitution contains no exceptions." In 2009, after Gov. Charlie Crist failed to appoint a justice within 60 days because he wanted a list with more diverse potential nominees, the Florida Supreme Court ruled that the governor must comply with the 60-day deadline. "Emergencies do not create power or authority," the court said.
But with two of its five seats vacant, the Florida Supreme Court could reverse that 2009 decision. In its first year, the court's new conservative majority has shown a willingness to overturn its own recent rulings — even in decisions involving life and death for criminal defendants.