SUPREME COURT OF THE STUDENT BODY
In Re: Spring 2008 Referendum and Initiative Questions
Heard and Decided February 5, 2008
Opinion Published February 12, 2008
The Supreme Court of the Student Body (hereinafter the “Court”) issues the following opinion on whether to certify two referendum questions and one constitutional amendment for the spring 2008 Student Government election. We have jurisdiction per Article V, §3 (b) (1), of the Constitution of the Student Body (hereinafter the “Constitution”), and §773.0, Student Body Statutes.
Two petitions for referendums were submitted to the Supreme Court of the Student Body to be placed on the spring 2008 election ballot. The first referendum asks: “Should UF facilitate the creation of an independent committee of student, faculty, and alumni representatives to advise the Board of Trustees on the socially responsible investment of UF’s endowments?” This referendum will be referred to as the “Endowments Committee” referendum question. The second referendum asks: “Should the University of Florida officially denounce the invasion of and continued occupation of Iraq?” This referendum will be referred to as the “Iraq War” referendum.
We have jurisdiction to certify referendum and initiative questions per Article V, §3 (b) (1), of the Constitution and .
Section 700.4 (y), of the Student Body Statutes, defines a referendum question as “an issue stated in the form of a question that shall be considered, when answered by the Student Body, to have the power of a resolution of Student Government.” Under Chapter 790 of the Student Body Statutes, students may propose referendum questions for inclusion on the ballot.
To be certified, a proposed referendum question must satisfy certain statutory requirements. Section 790.2, requires that referendum questions be proposed by either a 2/3 vote of the Senate or by a petition containing the signatures of at least 1% of the Student Body at the time of submission. In addition, §790.3, requires that petitions for referendum questions meet the requirements of §773.1.
Under §773.1, petitions for referendum questions must satisfy all of the following requirements:
All names must be or must be accompanied by the signature of the individual who signed the petition;
All signatures must be in non-erasable ink;
All names must be signed exactly as the student’s name recorded with the Registrar’s Office;
All names must be followed by student number;
Each page containing signatures shall have the proposed initiative statement of intent or referendum question stated in full at the top of the page;
Each page containing signatures shall include the identity and signature of the person responsible for securing signatures for that page and that person shall certify all of the following:
All signatures were made by different individuals;
No threats or coercive statements were made to induce a person to sign the petition;
The signature of the person responsible for securing the signatures may only be counted once.
Each page containing signatures shall include the statement: “Upon request, the full text of the amendment shall be made immediately available to any signatories.”
Both the Endowments Committee referendum question and the Iraq War referendum question satisfy the statutory requirements of §790.2 and §773.1. The total number of signatures on each petition exceeds the 492 signatures required by statute.1 At least 492 of the signatures on each petition appropriately satisfy the requirements of §773.1. Furthermore, both proposed referendums are properly written in the form of a question in accordance with §700.4 (y), and both proposed referendums are clearly written and accurately convey the intent to the voters.
Thus, the Court holds that the Endowments Committee referendum question and the Iraq War referendum question meet the statutory requirements and shall be certified to the Supervisor of Elections for placement on the spring 2008 Student Government election ballot.
Constitutional Amendment Initiative
The Court has received one petition to certify a proposed amendment to the Student Body Constitution for the spring 2008 election. This amendment shall be referred to as the “Online Voting” petition. The petition asks:
“Should the Student Body Constitution be amended so that Online Voting becomes the only method of voting in all future Student Government elections provided that:
a voter may vote from any computer connected to the World Wide Web and logged in using a Gatorlink username and password;
the connection is secure and encrypted;
voter identity is secret and untraceable;
at least one voting booth is available on campus for any voter wishing to vote in private;
provisional paper ballots are made available on a case-by-case basis for any voter with a disability, special need, or any other extenuating circumstance?”
The Student Body has a fundamental right to submit petitions to amend the Constitution
via initiative pursuant to Article VIII, §2. In order for a petition for a constitutional amendment to be certified for the ballot it must have the signatures of no less than ten percent of the Student Body and be filed no later than 28 calendar days prior to the election. Art. VIII, §2, Constitution, See also Thomas Jardon v. Supervisor of Elections, (2008)(Holding that 28 days prior to the ratification election means calendar days not school days). The petition must also “embrace only one subject and matter directly connected to that subject.” Art. VIII, §2. This requirement is adopted directly from Article XI, §3, of the Florida Constitution, which states in pertinent part “any such revision or amendment...shall embrace but one subject and matter directly connected therewith.” This constitutional limitation on the citizen proposed initiative is known as the single-subject rule under Florida law. In re Advisory Opinion to the Atty. Gen’l – Save our Everglades, 636 So. 2d 1336, 1339 (Fla. 1994). The constitutional restraint of the single-subject provision is designed to ensure all proposed constitutional amendments embrace a “oneness of purpose.” Save our Everglades, at 1340 (Fla. 1994). In order to suffice the oneness of purpose standard an initiative must not “substantially alter or perform the functions of multiple branches.” Id. The single-subject rule is a functional test as opposed to a locational test. The question is not whether it affects more than one part of the Constitution, but whether it substantially affects more than one of the three branches of government. Thus, if a constitutional amendment proposed by student initiative substantially affected both the executive and the judicial branches of Student Government, it would be said to not “embrace only one subject and matter directly connected to that subject” and would not be certified for the ballot by the Court.
To be certified for the ballot, a constitutional amendment petition must also fulfill all of the statutory requirements referendums must meet under §773.1. The Court must also subject the proposed amendment to judicial scrutiny to determine if it infringes upon the Student Body’s fundamental rights under the Student Body Constitution or under Florida and federal law. The Student Body Statutes require the Court to only certify petitions for constitutional amendments if “all constitutional and other requirements established by law are satisfied.” §773.0. The dissent urges a narrow review of proposed constitutional amendments limited only to the single-subject requirement and ballot and title language as is required of the Florida Supreme Court. However, the Florida Supreme Court is specifically limited to that review by state law, whereas student body law explicitly exempts this Court from those limitations.
Under Article IV, §10, of the Florida Constitution, the Florida Supreme Court is specifically limited to issuing an advisory opinion in regards to the “validity of any initiative petition.” Nowhere in the Constitution of the Student Body, or the Student Body Statutes, does it limit our review of constitutional amendments proposed by initiative. On the contrary, §773.0, requires the Court to subject proposed amendments to full constitutional scrutiny. Section 773.0, charges us with only certifying petitions “If all constitutional and other requirements established by law are satisfied.” This grants us an exceptionally broad scope of review and prevents us from limiting our review to single-subject rule and ballot title and language. To hold that our review is limited only to single-subject scrutiny is a derogation of the Court’s duty to ensure proposed amendments satisfy all constitutional requirements established by law. This is exceptionally imperative given the organization of the Student Government judicial system.
Justice Campbell, in his lone dissent, contends that the Honor Court Chancellor and not the Supreme Court of the Student Body has jurisdiction to certify the Online Voting petition. This contention is clearly erroneous and is not supported by any reasonable interpretation of Student Body law. Article V, §1, of the Constitution, vests “all judicial power of the Student Body” in the Supreme Court. Article V, §4, vests the Honor Court jurisdiction over issues of “academic dishonesty” and other “offenses against the Student Body.” No provisions of the Constitution or Statutes of the Student Body grant the Honor Court jurisdiction over issues and controversies involving Student Government. Additionally, §773.0, of the Student Body Statutes, explicitly provides:
“Amendments to the Student Body Constitution proposed by petition in accordance with
ArticleVIII, Section 2 of the Student Body Constitution and referendum questions
proposed in accordance with Student Body Statute 790.31 shall be filed with the Supreme
Court no later than 28 school days before the beginning of a regular or special election.”
The dissent, in an attempt to undermine the authority of this Court, claims the Honor Court Chancellor is given sole jurisdiction over constitutional amendments proposed by initiative because Article VIII, §2, states that the petitions shall be submitted to the Honor Court Chancellor. This is a remnant from the days the Honor Court Chancellor was the chief judge of both the Honor Court and the previous iteration of this Court which was known as the Board of Masters. The Student Body amended Article V to specifically remove the elected Honor Court Chancellor from ruling on Student Government controversies and established an independent Supreme Court in 2003. By restructuring the judicial branch of Student Government, the electorate clearly mandated that the Honor Court Chancellor have no jurisdiction over matters pertaining to Student Government and exercise jurisdiction solely over issues and controversies relating to academic and student dishonesty. Further, under Article XI, §3, of the Florida Constitution, citizen proposed initiatives must be filed with “the custodian of state records.” The Florida Supreme Court on the other hand is nowhere mentioned in Article XI, §3. However, no one contends the “custodian of state records” and not the Florida Supreme Court has the authority to certify citizen initiatives for the ballot. The language of Article VIII, §2, of the Constitution of the Student Body, referencing the Honor Court Chancellor serves the same capacity as the Florida Constitutions requirement of filing initiatives with the custodian of state records and in no way purports to give the Honor Court Chancellor jurisdiction over certification. To hold otherwise is clearly erroneous.
It is the sole province of this Court to uphold and defend the fundamental rights of all students as enumerated by the federal, state, and Student Body Constitutions. If the Court derogates from this obligation and allows students’ rights to be infringed upon, there will be no other recourse to restore those rights and uphold the Constitutions that govern and supersede Student Government law. It is the sole province of this Court to say what the law is in Student Government and to be the “ultimate arbiter of all issues and controversies” that relate to the Constitution of the Student Body and the Student Body Statutes. Thomas Jardon v. Supervisor of Elections, (2008).
Unlike our last opinion in Thomas Jardon v. Supervisor of Elections, (2008), the question before us today is not an issue of first impression for the Court. In In Re Online Voting, (2006), the Court held the voting method proposed by this petition to be unconstitutional under the United States, Florida, and Student Body Constitutions. Petitioners are attempting to overturn that decision by amending the Constitution of the Student Body. This, however, does not remedy the state and federal constitutional deficiencies inherent in the Online Voting amendment. In Jardon v. Supervisor , the Court enunciated our adherence to the judicial doctrine of stare decisis. “By adhering to the precedents established by previous decisions of this Court, we serve to perpetuate stability in the Student Government judicial process and promote reliance on our decisions.” Jardon v. Supervisor, (2008)(Citing State v. Gray, 654 So. 2d 552, 554 (Fla. 1995)). In order to certify the Online Voting amendment for the spring 2008 election we must overturn the Court’s decision in In Re Online Voting, (2006). The Florida Supreme Court clearly established when a court that adheres to the doctrine of stare decisis can overrule itself and depart from established precedent in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005). “This Court has departed from precedent to correct legally erroneous decisions, when such departure is ‘necessary to vindicate other principles of law or to remedy continued injustice,’ and when an established rule of law has proven unacceptable or unworkable in practice.” Allstate Indemnity Co. v. Ruiz, at 1131 (Quoting Haag v. State, 591 So. 2d 614, 618 (Fla. 1992)). We do not confront such an instance today.
In In Re Online Voting, (2006), the Court held:
“[I]t would be entirely at odds with the continued validity of UF Student Government, if the process in place to elect the leaders of UF Student Government did not comport with fundamental tenants of democracy that allow voters to cast their vote in privacy, and without coercion. Therefore, only those voting methods that ensure these safeguards are acceptable for use in SG elections, and to that end, Internet voting does not even remotely comply. It is the opinion of this Court that Internet voting is not a constitutional method of voting and shall be removed from the UF Student Statutes and not employed in any future election.”
Since the opinion was handed down in In Re Online Voting, no findings of a higher judicial authority or practical revolutions in policy have emerged to give any indication that the Court reached a legally erroneous decision. In fact, the Court’s foresight has only been illuminated by continued state and national controversies surrounding electronic voting machines in the year-and-a-half since the opinion was published. Thus, the Court upholds the decision in In Re Online Voting, (2006), and will reaffirm its legal reasoning.
In Jardon v. Supervisor, we recognized that “UF Student Government laws are governed by, and subordinate to, the laws and constitution of the State of Florida.” Quoting In Re Online Voting, (2006). It is clear that while Student Government is free under Florida state law to establish its own internal rules of operation for elections, the Student Body has chosen to bind its Student Government to the fundamental rights guaranteed by the Constitutions of the United States and of the State of Florida. The Constitution of the Student Body specifically recognizes that “[e]very student is guaranteed certain rights under the constitutions and laws of the United States and State of Florida.” Art. I, §2. The Constitution also states “[t]he provisions of the student body constitution are governed by and subordinate to the constitution and laws of the State of Florida.” Art. IX, §4. These provisions explicitly guarantee the Student Body’s fundamental rights as enumerated by the federal and state Constitutions will supersede the Constitution of the Student Body. Any proposed amendment to the Student Body Constitution that violates voters’ fundamental right to have equal access to the polls and secrecy and integrity of the ballot is per se unconstitutional under both state and federal law and cannot be placed on the ballot.
The Florida Constitution mandates that, “All elections by the people shall be by a direct and secret vote.” Fla. Const. Art. VI, §1. The plain meaning of this provision of the Florida Constitution is apparent. In the State of Florida, and any government which binds itself to the provisions of the Florida Constitution, all citizens are guaranteed the privacy of casting their vote in complete secrecy. Not only does the Online Voting amendment fail to fulfill that basic guarantee, it makes it impossible for the executive branch of Student Government to oversee and regulate the election. The Online Voting amendment gives the executive branch no ability to ensure voters are casting their ballots in private, free from organized coercion. The Florida Supreme Court has held that the Article VI, §1’s, constitutional right to a secret ballot can not be taken away by law. “The guaranty of secrecy in exercising the right to vote is one personal to the voter. He has a right to insist that knowledge of his decision at the polls remain his own. Under our system it is a constitutional privilege which cannot be withdrawn by law.” McDonald v. Miller, 90 So. 2d 124, 127 (Fla. 1956). The Online Voting amendment has the affect of taking away the right to a secret ballot because it inhibits the Supervisor of Elections from being able to verify that voters participating in elections are actually the persons whose Gatorlink username and password were used to access the system. It further takes away the right to a secret ballot by preventing the Supervisor from ensuring voters are voting in insular voting booths and are not subject to undue coercion in casting their ballots.
The Court in In Re Online Voting reached the same conclusion we reach today:
“Internet voting allows the voter to cast a ballot from anywhere in the world by simply logging on to a computer and entering a valid Gator 1 identification number and password. Absent from the process is the requirement that a voter actually prove their identification via a proper photograph identification. Additionally, the lack of a secured voting location has the potential to completely compromise the integrity of the election because voter privacy cannot be assured; thereby leading to coercion and fraud.”
Proponents of Online Voting point to their contention that voter coercion already exists in the Student Government voting system. The comparison between the current optical-scan paper ballot voting system and internet voting has been fully vetted by the Court:
“[O]nce that voter goes to the polls they have the privacy of a booth in which to cast their ballot for the candidate of their choosing. They can then leave the booth and return with their “I voted” sticker with nobody being the wiser as to whom they actually voted for… This is absolutely not the case with Internet voting…Instead of the individual being pressured to vote at the designated polling location, they are asked to join the other members of the organization down in the basement with some food and drinks so that everyone can vote. The individual is then asked to access the voter mainframe using their Gator 1 and password and vote for the candidate that the particular organization is supporting. In this example, while the voter casts their vote a member of the organization watches to ensure that in fact the voter has followed the organization’s mandate. Such a scenario is appalling to the concept of a free election.” In Re Online Voting, (2006).
Proponents of Online Voting have also contended that the sophisticated encryption software would guarantee voter privacy. One oft-repeated assumption has it that since the internet is secure enough for us to utilize to conduct our banking and register for classes it has to be secure enough for students to vote in a campus election. However, the above example clearly illustrates the flaw in that logic. Our concern is not the technical security the voting system provides against potential hackers; our concern is upholding and protecting the most fundamental tenants of a free society: that every person has one-vote; that vote is cast in complete privacy; and that the integrity of the election can be monitored by both the public and the government.
Secrecy of the ballot is not the only concern raised by the petition before the Court. The right to one-person, one-vote is another constitutional guarantee completely abrogated by the Online Voting amendment. The amendment would make it impossible for the Supervisor of Elections to ensure that one person was not collecting Gatorlink usernames and passwords and voting multiple times. In Reynolds v. Sims, 377 U.S. 533, 540 (S. Ct. 1964), the United States Supreme Court found the Fourteenth Amendment of the federal Constitution requires “equal suffrage in free and equal elections…and the equal protection of the laws” for all voters that partake in the political process. In Reynolds, the Supreme Court struck down Alabama’s reapportionment of legislative districts which were not proportional to the population. The Court held “the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators…To the extent that a citizen’s right to vote is debased, he is that much less a citizen.” Reynolds v. Sims, 377 U.S. 533, 566 (S. Ct. 1964). Likewise, the Online Voting amendment makes it impossible for the Supervisor of Elections to know who is actually voting and how many times they have voted. While it is possible for students to vote more than once in the current system, it is also possible for the Student Government staff to identify and punish double-voting. The current system may be susceptible to isolated instances of double-voting, but it is exceptionally rare and is always caught when Student Government professional staff pours over the voter rolls in the weeks following the election. With Online Voting no such safe guard is in place to ensure the most basic principle of a democratic election; one-person, one-vote. Because the Online Voting amendment makes it completely impossible to ensure all students have equal access to the polls and an equally weighted vote, it is unconstitutional under the Fourteenth Amendment, of the United States Constitution, and Article VI, of the State of Florida Constitution, and cannot be certified for the spring 2008 ballot.
The Endowments Committee and Iraq War referendum questions satisfy all of the statutory requirements to be certified for the spring 2008 Student Government election and shall be placed before the electorate for a vote. The Online Voting amendment does not satisfy “all constitutional and other requirements established by law” pursuant to §773.0, Student Body Statutes, and is not certified for the spring 2008 Student Government election. Because we find the Online Voting amendment facially unconstitutional we decline to reach the question as to whether it suffices the single-subject requirement of Article VIII, §3, of the Constitution of the Student Body. Until a higher judicial authority holds Online or internet voting lawful under the United States and Florida Constitutions it shall not be placed in the Constitution of the Student Body which is beholden to those sources of higher law.
It is so ordered.
Spicola, J. Adamzcyk, J., Kaufer, J. concur.
Spicola, J. concurs specially with an opinion.
Campbell, J. concurs in part and dissents in part.
Spicola, J., special concurring:
I concur with the judgment and reasoning of the majority and feel that this is the proper exercise of the court's review power to protect the constitutional rights of students. However, I feel that this issue has not reached maturity. While the exercise of the court's review in this case is proper based on the authority shown in the majority opinion, I feel that the proper course in this case would have been to allow the online voting amendment on the ballot even though it is unconstitutional under Florida law. In the event the amendment passed, this court could exercise its review power and strike down this amendment as unconstitutional under Florida law after a proper petition from an offended member of the student body.
Campbell, J., concurring in part and dissenting in part:
"[T]he Student Body is guaranteed the right to submit initiatives and referendums for ratification by the electorate, the right to recall and remove student body officers, and the right to address its student body officials."
-- Article I, Section 2, Constitution of the Student Body
Forty years ago the students that drafted the Constitution of the Student Body reserved to themselves, and to future generations, the power to amend the student constitution. They reserved this check upon the power of government to ensure that government remains of the people, by the people, and for the people.
It is no easy task to amend the Constitution of the Student Body (hereafter "student constitution") by popular initiative. Article VIII of our student constitution requires the amendment's proponent first garner the signatures of at least 10% of the student body. In today's numbers, that is nearly 5,000 signatures. Next, the proposed amendment is added to the ballot for popular vote. Ratification requires three-fifths (60%) approval by the voters. According to our records, this arduous task has either never been attempted or never been accomplished at this university, until now.
For the past several months, a group of dedicated students have obtained the signatures of 5,683 students interested in putting the proposed online voting amendment up for democratic vote. This court is the only obstacle between these students and democracy.
Despite the fact that a United States District Court, the Democratic National Committee, and at least four states have accepted the concept of online voting in presidential primaries, despite the fact that there is no legal precedent anywhere prohibiting online voting, despite the fact that there are legitimate arguments that online voting will increase voter participation and decrease election costs, despite the fact that colleges and universities across this state and this nation allow online voting, and despite the fact that 5,683 members of this student body requested a vote on the issue, my fellow justices have somehow determined that online voting is, and forever will be, unconstitutional at the University of Florida.
I begin my analysis by conclusively proving that this court does not even have the jurisdiction to review the proposed amendment. Article VIII, Section 2 of the student constitution provides:
Proposal by initiative.—Students may propose amendments to the constitution upon a submission of a petition to the student honor court chancellor joined by ten percent of the electorate not later than twenty-eight days before the ratification election. Each amendment proposed shall embrace only one subject and matter directly connected to that subject. (emphasis added).
As can be seen, the student honor court has jurisdiction over this matter, not the student supreme court. There is only one possible interpretation of the words "to the student honor court chancellor." If the majority addresses the issue, they will argue that this was a mistake and should therefore be ignored. Mistake or not, real courts do not ignore constitutional wording when there is only one possible interpretation. Courts are supposed to interpret the laws, not rewrite them as they think fit. The judiciary must ask the law-making branch of government to correct the mistake. By accepting jurisdiction over this matter, the court clearly violated Article II, Section 3 of the Constitution of the Student Body which states, "No person belonging to one branch shall exercise any powers appertaining to either of the other branches . . . ." For the sake of argument I will pretend, as does the majority, that this court has jurisdiction over the matter.
B. Concise Survey of Online Voting.
The briefest amount of legal research informed me that in "January 2000, a lawsuit was filed in United States District Court for the District of Arizona by the Voting Integrity Project to prohibit Internet voting in the Arizona Democratic primary election. The suit was based on claims that the digital divide between those who have access to the Internet and those who do not would have the effect of disenfranchising ethnic minorities." The district court ruled against the plaintiff and approved the use of online voting. Rebekah K. Browder, Internet Voting With Initiatives and Referendums: Stumbling Towards Direct Democracy, 29 Seattle U. L. Rev. 485 (2005). Additionally, the Alaska Republican Party, the Michigan Democratic Party, the state of Washington and the Democratic National Committee have used online voting in presidential primaries. Id.; see also Gregory Katz, Overseas Voting: Online for the 1st Time, available at http://ap.google.com/article/ALeqM5jWHR0HWpnelXl3LlsRtz5WkmiOKAD8UKM5CO0 (last accessed February 10, 2008). No court, anywhere, has ruled that online voting is unconstitutional. That is, until now.
The majority argues that these elections are distinguishable from the current situation because they involve presidential primaries. I am told that the courts have ruled that there is no "fundamental right" to participate in a presidential primary. Thus, since no fundamental right is involved, online voting in the primaries receives low-level judicial scrutiny. On this point I agree with the majority. However, what the majority fails to recognize is that there is no fundamental right to vote in a student government election. Student government is a privilege, not a right, and a privilege that can be taken away by the administration. Because neither situation involves a fundamental right, the legal analysis should be the exact same: low-level judicial scrutiny.
C. Standard of Review.
The greatest display of judicial activism committed by the majority is the standard of review they invented. Because an amendment by popular initiative has never been done before at this university, the court had to decide upon the appropriate standard of review to scrutinize the proposed amendment. However, because Article IX, Section 4 of the student constitution subordinates the student constitution to the laws of Florida, the court was, or should have been, bound to use the same standard of review that the Florida Supreme Court applies when reviewing citizen initiative amendments to the Florida Constitution. The Florida Supreme Court explained the appropriate standard of review as follows:
When the Court renders an advisory opinion concerning a proposed constitutional amendment arising through the citizen initiative process, no lower court ruling exists for the Court to review. Therefore, no conventional standard of review applies. Instead, the Court limits its inquiry to two issues: (1) whether the amendment violates the single-subject requirement of article XI, section 3, Florida Constitution, and (2) whether the ballot title and summary violate the requirements of section 101.161(1), Florida Statutes (2003). See, e.g., Advisory Op. to Att'y Gen. re Amendment to Bar Gov't From Treating People Differently Based on Race in Pub. Educ., 778 So.2d 888, 890-91 (Fla.2000). In addressing these two issues, our inquiry is governed by several general principles. First, we will not address the merits or wisdom of the proposed amendment. See, e.g., Amendment to Bar Gov't From Treating People Differently Based on Race in Pub. Educ., 778 So.2d at 891. Second, “[t]he Court must act with extreme care, caution, and restraint before it removes a constitutional amendment from the vote of the people.” Askew v. Firestone, 421 So.2d 151, 156 (Fla.1982). Specifically, where citizen initiatives are concerned, “the Court has no authority to inject itself in the process, unless the laws governing the process have been ‘clearly and conclusively’ violated.” Advisory Op. to Att'y Gen. re Right to Treatment and Rehabilitation for Non-Violent Drug Offenses, 818 So.2d 491, 498-99 (Fla.2002); see also Amendment to Bar Gov't From Treating People Differently Based on Race in Pub. Educ., 778 So.2d at 891 (“In order for the Court to invalidate a proposed amendment, the record must show that the proposal is clearly and conclusively defective.”).
Advisory Op. to the Att'y Gen. re Referenda Required for Adoption & Amendment of Local Gov't Comprehensive Land Use Plans, 902 So.2d 763, 765 (Fla. 2005) (emphasis added). Thus, the Florida Supreme Court limits itself to a very low-level standard of review, a two-prong test, when it examines proposed constitutional amendments. Further, for the Florida Supreme Court to invalidate a proposed amendment, the record must show that the proposal is "clearly and conclusively defective." Id.
Just as the Florida Supreme Court uses a limited standard of review when scrutinizing proposed amendments, this court should have used a limited standard of review when scrutinizing the proposed online voting amendment. The student court's review should have been limited to one, at most two, issues. The first issue being whether the proposed online voting amendment violates the "single-subject" requirement of Article VIII, Section 2, of the student constitution. The second issue being whether to incorporate the Florida Supreme Court's second prong into the student court's common law: "whether the ballot title and summary violate the requirements of section 101.161(1), Florida Statutes." The second issue was fully within the court's discretion because we have no similar student statute.
Instead of applying the same standard of review that the Florida Supreme Court uses, the majority invented its own standard, what I call the "anything and everything" standard. The reason that the majority invented this standard is because the proper standard (i.e., the one that the Florida Supreme Court uses) would allow the proposed online voting amendment to pass to the ballot. Since the majority did not like the standard that the Florida Supreme Court uses, they changed it. This aborted the proposed amendment before it ever had a chance to breathe.
Under the "anything and everything" standard, the court is free to guess at what constitutional violations might possibly occur in the future if the proposed amendment becomes law. The court is free to hypothesize, speculate, and make assumptions. In reviewing the merits and wisdom of the proposed amendment (something that the Florida Supreme Court will not do), the court can essentially strike down any proposed amendment for any reason at all, or no reason at all. This is unacceptable.
The court could easily apply the same standard of review that the Florida Supreme Court applies. First, the court could decide whether the amendment violates the "single-subject" principle and whether the text of the ballot title and summary are misleading, lengthy, or confusing. After this inquiry the court should certify the amendment to be placed on the ballot for public vote. Then, assuming the amendment is ratified by the people, if in the future the amendment violates someone's right, then at that time the individual may petition the court for substantive review. At that point in time the issue will be ripe for review. There will be two parties (an aggrieved Plaintiff and a defending government) and the court will be able to hold a proper hearing. Additionally, the court would also know the appropriate standard of review to apply based upon the complaint filed by the petitioner (Equal Protection, Due Process, Speech, etc...). This process makes more sense than the one created by the majority.
D. Stare Decisis and Voter Coercion.
Another reason why the court claims that it must overturn the proposed amendment is because the 2006 court held a similar proposal unconstitutional. Therefore, because it was unconstitutional in 2006, precedent requires that it must be unconstitutional now. Thankfully the U.S. Supreme Court does not adhere to this same train of thought.
The reasoning that the court used in 2006 was flawed then and it is flawed now. Thus, the court is free to overturn the previous court's decision. I will now explain why the previous court's decision was flawed and why, in this regard, this court's decision is flawed.
The previous court determined that a proposed online voting statute was unconstitutional out of fear that certain student organizations would tell their members how to vote and physically watch them place their votes (ex., stand over their shoulders and tell them how to vote). This nefarious conduct, called "voter coercion," would violate the principles of ballot secrecy and "one-person, one vote." The court believes that paper ballots alleviate this fear because voting booths allow members the freedom and privacy to vote at will. This argument is bad for three main reasons. First, it is speculative. Second, it assumes that student organizations will act so dishonorably as to force their members to vote a certain way. This concept is so distasteful that it is insulting that any court would make this assumption. If, in fact, someone is being forced to vote a certain way, the organization may be guilty of a more serious offense than voter coercion. Finally, and most significantly, if a student organization is participating in voter coercion, then the member is free to dissociate with that organization at will. If a member feels as though their vote is being coerced, that member is free to quit the dishonorable organization at any time and vote as he or she pleases. Since membership in the organization is voluntary, then any coercion due to that membership must be voluntary as well. Members are always free to extricate themselves from the situation.
The majority erred for three reasons: 1) the court did not have jurisdiction to decide the matter, 2) the court relied upon flawed precedent and 3) the court abused its power by failing to use the standard of review adopted by the Florida Supreme Court. The decision of the court should be reversed on appeal.
I concur with the court's holding regarding the two referenda and dissent with everything else.
1 According to data provided by the UF Office of Institutional Planning and Research, there were 49,140 enrolled students at the time of submission of the petitions. §790.2 requires signatures of not less than 1% of the Student Body. 492 signatures represent not less than 1% of the Student Body and is the minimum number of signatures required to certify today's referendums.