Moody splits with Senate on fate of failed petition drives to broaden gambling in FL

Sponsors want state Supreme Court to review their initiatives

By: - February 21, 2022 3:27 pm

Casino at Hialeah Park Race Track, in Dade County. Credit: Joe Raedle/Getty Images

Attorney General Ashley Moody and the Florida Senate have rendered conflicting opinions about whether the Florida Supreme Court should rule on the validity of two proposed constitutional amendments on gambling that failed to qualify for the ballot.

One initiative, sponsored by an organization calling itself Florida Education Champions, and largely financed by sports-betting giants DraftKings and FanDuel, would authorize sports betting statewide but failed to collect the required 891,589 petition signatures by the Feb. 1 deadline to make this year’s general election. Together, the companies invested nearly $37.4 million

Another initiative, sponsored by a group called Florida Voters in Charge, backed by more than $75.5  million in Las Vegas Sands Co. money, would have authorized as many as three new casinos on the condition they be located at least 100 miles away from any Seminole Tribe of Florida casino. It, too, failed to collect enough signatures.

Disputes over gambling have kept the courts busy since the Florida Legislature ratified a gambling compact struck between Gov. Ron DeSantis and the Seminoles that allowed online sports betting statewide as long as the wagers ran through servers located on tribal land.

A federal judge ruled in November that the arrangement violated federal law. In early December, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit refused to stay that lower court ruling pending further proceedings.

Florida Voters in Charge has a suit pending in Leon County Circuit Court accusing the tribe of interfering with its petition campaign by poaching signature gatherers.

Both gambling initiative sponsors gathered more than 25 percent of the required total signatures; under Florida law, that impelled Moody to ask the Supreme Court to decide whether their language accorded with a prohibition against initiatives addressing more than one subject or whose ballot summaries might mislead voters.

The question now is whether the court should rule on the measures’ merits even though they have failed, at least for now.  The sponsors hope the justices will do just that, since a dispositive legal ruling would provide guidance for another run at signature-gathering campaigns ahead of the 2024 general election.

Florida Attorney General Ashley Moody. Credit: Office of Attorney General

On Feb. 8, the justices asked Moody and other interested parties to weigh in on the question. According to pleadings filed with the court, the court has never addressed it before.

The sport-betting sponsor, in a brief submitted last week, argues the justices should decide now. That brief notes that the Florida Division of Elections continues to list the initiative as “active” for the presidential-election year.

“The court’s advisory opinion, in line with the constitutional and statutory process, enables sponsors and supporters, such as the above, to redraft the petition initiative in a deliberative and timely fashion,” the brief argues.

The point of review, it continues, is “to mitigate the risk that Florida’s citizens will expend substantial resources in pursuit of an initiative petition that does not satisfy discrete constitutional and statutory requirements.

“Indeed, the standard of review governing the court’s consideration of proposed initiatives is to ensure that the initiative petition’s drafting of the ballot summary and the provision’s text have been executed to properly focus the attention and consideration of supporters and voters.”

The casino initiative sponsor filed similar arguments.

“Having met the threshold to trigger jurisdiction, and with the initiative petition still active, the sponsor is entitled to an advisory opinion from this court,” it says.

Moody agreed the justices should go ahead and decide, writing, “the court does not lose jurisdiction simply because the petition will not appear on the ballot in the next election.”

Her brief argues the court must decide once her office submits an initiative for review.

“[T]he court’s jurisdiction, under current law, is triggered when she requests an advisory opinion after receiving certification from the secretary of state that a petition has secured a threshold number of signatures. The court does not lose jurisdiction simply because the petition will not appear on the ballot in the next election,” it says.

Lawyers for the Senate addressed both initiatives, arguing that, once a sponsor fails to gather enough petition signatures by the deadline, the effort becomes a dead letter legally, even if the sponsor intends to continue gathering signatures toward the next general election.

“The fact that an initiative may, at some point in the future, regain the signatures it needs for review and ultimately obtain ballot placement does not change the fact that for the current election cycle it does not have those signatures. The Constitution and statutes do not contemplate the court resolving whether initiatives that do not have those signatures get an authoritative decision on the ballot.

The brief cautions: “It is not the intent of the Senate to address the merits of any of the particular initiatives in this brief but to focus on the jurisdictional issue raised by the court.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.