Attorney General Pam Bondi (Pic via myfloridalegal.com)
Attorney General Pam Bondi (Pic via myfloridalegal.com)

Elections overhaul makes it harder to challenge 2012 ballot measures

By | 07.07.11 | 1:20 pm

Florida GOP legislators slipped new little-noticed rules into this year’s elections bill that make it harder to challenge the language of a ballot measure, just as two controversial amendments made their way onto the 2012 ballot.

Groups have already displayed an interest in possibly challenging two amendments. One that might be attacked would curb a woman’s state constitutional right to privacy but is written as a ban on state funding for abortion. Another amendment up for a vote in 2012 would repeal a ban on state funding for religious institutions.

House Joint Reslotution 1179 proposes “the creation of Section 28 of 2 Article I of the State Constitution to generally prohibit public funding of abortions and prohibit the State Constitution from being interpreted to create broader rights to an abortion than those contained in the United States Constitution.”

As HJR 1179 made its way through the state Legislature this session, the bill was presented as a way to restrict public funding of abortion — which is already illegal. But one of the underplayed consequences is that it would also roll back a constitutional privacy right in the Florida constitution, which currently provides more protection for women than the U.S. Constitution does. If 1179 passes, the amendment would make Florida’s constitution more like the nation’s.

While the bill summary includes this information, some might take issue with the amendment’s title: “Prohibition on Public Funding of Abortions; Construction of Abortion Rights.”

State Rep. Elaine Schwartz, D-Hollywood, said during debate over the bill that the amendment was introduced as a “political move to get out the vote in 2012.”

Another bill earning legal scrutiny is House Joint Resolution 1471, or the “Religious Freedom” amendment. This measure would create “an amendment to Section 3 of 2 Article I of the State Constitution to eradicate remnants of anti-religious bigotry from the State Constitution and to end exclusionary funding practices that discriminate on the basis of religious belief or identity.”

As The Florida Independent has previously reported, there is little to no evidence that the state of Florida takes part in any “exclusionary funding practices.” In fact, in the past few years, religious institutions have expanded their relationship with state government. Most recently, the Catholic church asked legislators to include a provision in their Medicaid privatization plans that would allow Medicaid providers to opt out of offering family planning services for “moral or religious” reasons. State legislators complied.

Opponents of the amendment, a list that includes religious leaders, also warn that “Religious Freedom,” if passed, might actually take away some freedoms from religious institutions.

Rabbi Merrill Shapiro of Temple Beth Shalom in Palm Coast told the Independent that bigger problems will arise down the road, when religious institutions are further entangled with the government. “It’s a thicket they can’t get out of,” Shapiro warns. “Once you take that money, the government can make stipulations.”

The reason both amendments are receiving scrutiny is that many believe they are unnecessary at best, and deceptively dangerous at worst.

The state of Florida is already not paying for abortions. The state only pays for abortions in extreme cases such as rape and incest — an exception that is also provided in the amendment. In essence, the only policy change will be to strip away a constitutional right.

The state is also already funding many religious institutions — and these institutions have thus far been able to keep a lot of their own autonomy from certain federal and state mandates. Groups are concerned that “Religious Freedom” would remove an important firewall between church and state and significantly change the relationship between the two.

Despite the fact that groups have significant grounds to challenge these amendments, little-discussed provisions in this year’s controversial elections bill (House Bill 1355) will make it significantly more difficult to challenge either of the two ballot measures.

First, Section 29. Section 101.161, (3)(b)(1.) of the elections bill sets a strict time limit for when a challenge can be presented: ”Any action for a judicial determination that one or more ballot statements embodied in a joint resolution are defective must be commenced by filing a complaint or petition with the appropriate court within 30 days after the joint resolution is filed with the Secretary of State.”

Second, if the language is successfully challenged, there is a new procedure for revising it. According to the bill, “the Attorney General shall, within 10 days, prepare and submit to the Department of State a revised ballot title or ballot summary that corrects the deficiencies identified by the court, and the Department of State shall furnish a designating number and the revised ballot title or ballot summary to the supervisor of elections of each county for placement on the ballot.”

Jenn Meale, communications director for Attorney General Pam Bondi, explains that “the elections bill requires the attorney general to revise the title or ballot summary within 10 days if the courts find the Legislature’s title or each ballot summary insufficient.”

Previously, the Legislature was tasked with rewriting the ballot title or summary if it was found to be defective. However, new rules now empower one person to decide what the revised title and/or summary would be.

As of now, it is unclear what the next step would be in the event that the attorney general’s revision were also successfully challenged. The next step is not expressly spelled out in the elections bill. When asked what that process might be, Meale said that “it would not be appropriate to speculate on a hypothetical situation.”

“There may be several routes in response to the situation you outlined,” she said.

The American Civil Liberties Union of Florida has said it is taking a look at both constitutional amendments closely before deciding whether it might challenge them. The ACLU beefed up its legal staff in the wake of this past legislative session.

As of right now, groups looking to challenge either of the measures have about three weeks to do so.

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