Florida is one of three states with a ballot measure this November that will politicize its state courts. (Photo by s_falkow.)
By Ashley Lopez
Florida Center for Investigative Reporting
Florida is one of three states this year that will vote on a ballot measure in November that, if passed, will politicize state courts.
According to a report from the Center for American Progress, from 2011 to 2012, legislators in 24 states introduced laws or resolutions that would “enable governors to replace competent state judges, a power that would, in practice, result in more conservative replacements in states across the country.” Of those 24 states where such laws were introduced, Florida, Missouri and Arizona passed their respective versions of this legislation.
In November, Floridians will vote on Amendment 5, a legislatively-refferred amendment that would change the way the Florida Supreme Court looks today.
First, Amendment 5 would require the Florida Senate to confirm state Supreme Court nominees, politicizing the process by which justices are appointed.
Second, the ballot measure would allow the legislature to repeal any court decision with only a majority, which is 50 percent plus one. Right now, the legislature needs a supermajority, a vote count that is much harder to achieve.
It’s important to note that the legislative body that passed this bill had a Republican supermajority in both the House and Senate. However, Republicans are expected to lose their supermajorities due to redistricting this year — but losing a simple majority is very unlikely.
As I mentioned last week, the courts are a great place for conservatives to concentrate their efforts these days. With a GOP-led Florida Legislature and a Republican in the governor’s mansion, the only obstacle for conservative politicians’ agenda — which has included privatizing prisons and randomly drug testing welfare recipient — has been the courts. This has been true of many states with conservative state legislatures.
American Progress reports that if these three ballot measures are voted for by electorates in each state, “state judges that are expected to protect citizens’ rights will become more and more aligned with conservative and corporate interests”:
The reason: Conservatives are behind the majority of these efforts. After failing to achieve their preferred policy outcomes though the legislative process or the ballot box, these individuals are now turning their sights on the courts. Not only is much at stake for progressive policy causes, but even worse, the health of our democracy and the public’s faith in our system of justice are at risk, too.
Here is another part of American Progress’ report on Florida’s ballot measure:
Over the course of several years, the Florida Supreme Court has upset conservatives by ruling against their interests. In 2006 the court declared school vouchers illegal under the Florida Constitution, and in 2010 it prevented several legislatively referred ballot measures from appearing on the ballot due to legal improprieties. The measures would have set limits on property tax increases, prevented the Affordable Care Act from being implemented, and curtailed political considerations when crafting district lines, though this last referendum was really intended to be used as part of a political strategy to confuse voters. Although the referendums were removed from the ballot for using language that would intentionally mislead voters, conservatives interpreted this to be “judicial activism.”
In response, the Florida Legislature placed H.J.R. 7111 on the November ballot with the votes of 104 Republicans and zero Democrats. This referendum makes two major changes to the state supreme court. The first modification changes how justices are selected. Although the governor must still appoint a judge from the nominations of the Supreme Court Judicial Nominating Commission, similar to Missouri’s plan, this referendum amends the state constitution to require Senate confirmation of the governor’s selection. If the Senate rejects the selected candidate, the commission reconvenes to choose new nominees, with the condition that they “may not renominate” the rejected candidate.
This change to the judicial nominating procedure is even worse than the change in Missouri. While the Missouri referendum may still allow the commission to nominate qualified candidates without regard to politics, Florida’s referendum ensures that politics will always play a role in nominations by giving the Senate a veto. The Florida commission may nominate any number of qualified candidates, but only those with political views the Senate majority agrees with will be confirmed. Furthermore, the Senate may reject every nominee until the commission and governor nominate a specific candidate with close political ties to the party in power.
The second modification in H.J.R. 7111 is to allow the legislature to repeal a rule of the court with a simple majority vote in both chambers, rather than the two-thirds supermajority the state’s constitution currently requires. This easily allows the legislature to influence court proceedings and retaliate against judges for deciding cases in the interest of justice, rather than in the interest of the current conservative ideology of the majority of the legislature’s members today.
The ballot measure went through some changes as it made its way through the Florida Legislature. However, the proposed amendment has been criticized by Florida lawyers and opposed by groups including Floridians for Fair and Impartial Courts.