Browning v. FLORIDA HOMETOWN DEMOCRACY

Decision Date18 February 2010
Docket NumberNo. SC08-884.,SC08-884.
Citation29 So.3d 1053
PartiesKurt S. BROWNING, etc., et al., Appellants, v. FLORIDA HOMETOWN DEMOCRACY, INC., PAC, et al., Appellees.
CourtFlorida Supreme Court

Bill McCollum, Attorney General, Scott D. Makar, Solictor General, Courtney Brewer, Craig D. Feiser, Deputy Solicitors General, Blaine H. Winship, Assistant Attorney General, Tallahassee, FL; Lynn C. Hearn, General Counsel, Florida Department of State, Tallahassee, FL, for Appellants.

Ross Stafford Burnaman, Tallahassee, FL, for Appellees.

PER CURIAM.

This case is before the Court on appeal from the decision reported as Florida Hometown Democracy, Inc. v. Browning, 980 So.2d 547 (Fla. 1st DCA 2008), in which the First District Court of Appeal held that the signature-revocation provisions of section 100.371, Florida Statutes (2007), and associated implementing regulations (i.e., Florida Administrative Code Rules 1S-2.0091 and 1S-2.0095), are unconstitutional in violation of article XI, section 3 of the Florida Constitution, which delineates the citizen-initiative method of amending this foundational document.1 We thus possess mandatory appellate jurisdiction to resolve this case under article V, section 3(b)(1) of the Florida Constitution.2 As further explained in our analysis, we affirm the decision of the First District because the politically charged counter-petition revocation campaigns created by these provisions in operation would essentially eviscerate and render meaningless the citizen-initiative process. Such campaigns are neither contemplated nor permitted by the self-executing plain text of article XI, nor are they "necessary to ensure ballot integrity." State ex rel. Citizens Proposition for Tax Relief v. Firestone, 386 So.2d 561, 566 (Fla.1980) (emphasis supplied).

While the Legislature and the Secretary of State have an obligation to ensure ballot integrity and a valid election process, these parties possess only "limited authority to adopt regulations that affect the initiative process." Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 962 (Fla.2002) (emphasis supplied).

We must ensure that any legislation and administrative rules affecting the initiative process are either neutral, nondiscriminatory regulations of petition-circulation and voting procedure, which are explicitly or implicitly contemplated by article XI, or, if otherwise, are "necessary for ballot integrity since any restriction on the initiative process would strengthen the authority and power of the legislature and weaken the power of the initiative process." Tax Relief, 386 So.2d at 566 (emphasis supplied). In other words, as a condition precedent for validity, legislative and executive measures affecting the initiative process that are neither expressly authorized in article XI, sections 3 and 5, nor implicitly contemplated by these constitutional provisions, must be necessary for ballot integrity. Our precedent further communicates that authentication efforts intended to preserve the integrity of the petition process should be conducted and supervised by neutral election officials rather than biased advocates. See Krivanek v. Take Back Tampa, 625 So.2d 840, 844-45 (Fla.1993) (holding that voter-registration status-confirmation forms should be "presented directly to a neutral election official rather than a biased advocate" (emphasis supplied)); cf. Crawford v. Marion County Election Bd., 553 U.S. 181, 128 S.Ct. 1610, 1623-24, 170 L.Ed.2d 574 (2008) (upholding Indiana's neutrally administered, nondiscriminatory voter-ID law) (plurality opinion).

The legislation and administrative rules at issue in this case fail each of these requirements. Ultimately, alteration of the initiative process through measures that are not expressly or implicitly contemplated by article XI, sections 3 and 5 of the Florida Constitution, and are not necessary to ensure ballot integrity, must be accomplished through constitutional amendment. Along with our colleagues at the First District, we remain firmly committed to these well-established legal principles and, accordingly, we affirm the decision of the First District below.

BACKGROUND
Section 100.371, Florida Statutes (2007), and Its Implementing Regulations

During its 2007 regular session, the Legislature adopted chapter 2007-30, Laws of Florida. In relevant part, the act's title provides that the legislation amended section 100.371, Florida Statutes, by "providing procedures for revocation of a signature on a petition form." Ch.2007-30, title, at 321-22, Laws of Fla. Effective August 1, 2007, section 25 of chapter 2007-30 amended subsection (1) of section 100.371, Florida Statutes, fashioned a new subsection (6), and amended and transferred the prior contents of subsection (6) to new subsection (7). Despite the gloss presented by the act's title, these statutory changes did not merely "provide procedures"; rather, they "established" a substantive revocation concept that was previously foreign to Florida's constitutional petition-circulation process. § 100.371(1), Fla. Stat. (2007); ch.2007-30, § 25, at 339-40, Laws of Fla. As amended, these statutory subsections provide:

(1) Constitutional amendments proposed by initiative shall be placed on the ballot for the general election, provided the initiative petition has been filed with the Secretary of State no later than February 1 of the year the general election is held. A petition shall be deemed to be filed with the Secretary of State upon the date the secretary determines that valid and verified petition forms have been signed by the constitutionally required number and distribution of electors under this code, subject to the right of revocation established in this section.
....
(6)(a) An elector's signature on a petition form may be revoked within 150 days of the date on which he or she signed the petition form by submitting to the appropriate supervisor of elections a signed petition-revocation form adopted by rule for this purpose by the division of elections.
(b) The petition-revocation form and the manner in which signatures are obtained, submitted, and verified shall be subject to the same relevant requirements and timeframes as the corresponding petition form and processes under this code and shall be approved by the Secretary of State before any signature on a petition-revocation form is obtained.
(c) Supervisors of elections shall provide petition-revocation forms to the public at all main and branch offices.
(d) The petition-revocation form shall be filed with the supervisor of elections by February 1 preceding the next general election or, if the initiative amendment is not certified for ballot position in that election, by February 1 preceding the next successive general election. The supervisor of elections shall promptly verify the signature on the petition-revocation form and process such revocation upon payment, in advance, of a fee of 10 cents or the actual cost of verifying such signature, whichever is less. The supervisor shall promptly record each valid and verified petition-revocation form in the statewide voter registration system in the manner prescribed by the Secretary of State.
(7) The Department of State may adopt rules in accordance with s. 120.54, Florida Statutes, to carry out the provisions of subsections (1)-(6).

§ 100.371(1), (6)-(7), Fla. Stat. (2007) (emphasis supplied).

Pursuant to the bounded rule-making authority conferred by sections 100.371(7) and 120.54, Florida Statutes (2007), the Department of State later promulgated two administrative rules to implement this newly minted concept of signature revocation. See Fla. Admin. R. 1S-2.0091, 1S-2.0095. In sum, the material portions of these rules outline:

1) Subject to the Secretary of State's format approval of signature-revocation forms, rival political action committees are primarily responsible for drafting, distributing, marketing, and submitting such forms, see Fla. Admin. R. 1S-2.0095(1)-(2), (6)-(7), (11);
2) These entities have a 150-day window following an elector's signature of a petition-initiative form in which to persuade the elector to revoke his or her signature, see Fla. Admin. R. 1S-2.0095(8)(a)2.;3
3) Political action committees conducting signature-revocation campaigns have until 5:00 p.m. on February 1 preceding the pertinent general election to obtain the relevant supervisor of elections' verification of these revocation forms (thus making it practically impossible for initiative proponents to determine whether they have obtained the requisite number and distribution of verified signatures until it is too late to gather, submit, and verify additional signatures), see Fla. Admin. R. 1S-2.0095(10); and 4) Political action committees conducting signature-revocation campaigns possess a definitive edge in the signature-persuasion process. To wit, once they persuade an elector to revoke his or her signature—for whatever reason—the elector is forever prohibited from changing his or her mind to, instead, reestablish support for placement of the initiative proposal on the election ballot, see Fla. Admin. R. 1S-2.0091(2)(a)2., 1S-2.0095(12).

Therefore, section 100.371 permits, and the administrative rules create, a framework for partisan-fueled counter-petition revocation campaigns, which seek to broadly persuade elector-signatories that they should revoke their prior signatures for any number of asserted reasons, even if illegitimate.

These signature-revocation campaigns are inherently designed to vitiate the effectiveness of the petition-circulation process because those entities conducting revocation campaigns may submit their gathered revocation forms as late as February 1 preceding the relevant general election, which is the same date on which the Secretary of State must verify whether the initiative proponents have gathered enough signatures to secure ballot placement. Hence, initiative proponents will likely receive no notice with regard to...

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