Misleading Language About Lobbying on Ballot Concerning Material Changes to An Existing Constitutional Provision

In Askew v. Firestone, 421 So.2d 151 (Fla. 1982), former Governor Reubin Askew joined with Common Cause and the League of Women Voters, Inc., in petitioning the courts to remove from the ballot a proposed constitutional amendment that appeared to restrict lobbying by former office holders, but that actually would permit immediate lobbying by removing an existing ban on such lobbying. In an opinion by Justice McDonald the Court expressed caution at the outset about the parameters for its review of the ballot language: The Court must act with extreme care, caution, and restraint before it removes a constitutional amendment from the vote of the people. Nevertheless, it is clear and convincing to us that the ballot language contained in SJR 1035 is so misleading to the public concerning material changes to an existing constitutional provision that this remedial action must be taken. Id. at 156. Relying on statutory restrictions and a long line of constitutional precedents, the Court in Askew found that the ballot title and summary failed to fairly inform the voters of a major consequence of the amendment, i.e., that the amendment would actually void the existing ban on lobbying. Rather, the ballot title and summary were written in such a way that a voter would believe that by approving the amendment she was voting to restrict lobbying. As stated by Justice Boyd in a concurring opinion: A person who may vote to adopt the amendment for the purpose of limiting lobbying by legislators will actually achieve directly opposite results in removing the present lobbying ban. 421 So.2d at 156-57. The essential holding of the Court in Askew was that a change to the Constitution must stand on its own merits and not be disguised as something else. The purpose of section 101.161 is to assure that the electorate is advised of the true meaning, and ramifications, of an amendment. A proposed amendment cannot fly under false colors; this one does. The burden of informing the public should not fall only on the press and opponents of the measure - the ballot title and summary must do this. Id. at 156. Of course, section 101.161(1), Florida Statutes (1999), contains the statutory mandate that the ballot title and summary be in such clear and unambiguous language so as to give the voter fair notice of the decision she must make. See Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981, 986 (Fla. 1981). Similarly In Armstrong v. Harris, 773 So.2d 7, (Fla. 2000), this Court followed the holding of Askew and found the language in a proposed ballot title and summary "preserving the death penalty" violated the fair notice requirements because the ballot summary failed to advise the electorate of the "true meaning, and ramifications" of the amendment. Among other flaws, we found in Armstrong that the ballot summary completely failed to inform the voters that the provision in the Declaration of Rights of the Florida Constitution protecting citizens from "cruel or unusual punishments" would be altered and reduced to provide protection only from "cruel and unusual punishments." In addition, the ballot summary failed to inform the voters that a myriad of potential punishments other than the death penalty would be substantially affected by the amendment. In essence, we held that if Florida citizens are to be deprived of this important right they must be told so.