Florida Just Upended The Election

Three rulings from Florida’s State Supreme Court could have significant impact on voter enthusiasm and turnout in November.

Abortion rights protestors in Ft. Lauderdale. Image courtesy of the BBC

In a trio of rulings, the extremist Florida Supreme Court, made up mostly of Ron DeSantis appointees, put the state of Florida into play.

First, it overturned decades of precedent by eliminating a state constitutional right to abortion. Leaning heavily on the Dobbs decision, the 6-1 opinion stripped away a right that women in Florida have had since 1989 and reinterpreted the state constitution’s right to privacy clause, which has been in place since 1980, to exclude abortion rights. That contemptible legal chicanery allowed a recently enacted, draconian six-week abortion ban to go into effect.

Second, and in a win for abortion rights activists, the Court narrowly allowed the question of abortion rights to appear on the Florida ballot this November, over the opposition of the DeSantis administration. I’ve been waiting to exhale for some time on this question, wondering if the state’s highest court would move to undermine democracy there yet again. And it almost did; the vote was a nail-biting 4-3 to allow the measure. Voters will now get a chance to decide whether to enshrine the protections of Roe v. Wade into the state constitution. 

And third, the state’s high court permitted a marijuana legalization measure also to appear on November’s ballot. That’s a popular idea that is likely to juice turnout among first-time voters.

The rulings are likely to supercharge turnout and boost a key challenge to incumbent Republican Sen. Rick Scott by Democrat Debbie Mucarsel-Powell. If she unseats Scott, who only won his seat by 10,000 votes six years ago, the chances of the Democrats holding the Senate rise considerably.

Anger over the ruling, and enthusiasm for the ballot measures, could even put the whole state of Florida, which Biden lost by three and a half points in 2020, back into play. 

In today’s piece, I’ll break down these rulings and assess how they impact the national electoral landscape. Suffice it to say, it’s quite possibly a whole new election ballgame.

An extremist majority guts a cherished right

The GOP would love to turn down the national temperature on reproductive rights. It is still doing damage control from the Alabama Supreme Court’s ruling on IVF. The last thing the party wanted was a decision out of the Florida Supreme Court that puts those rights on the front burner and cranks up the heat.

In its deplorable decision, analyzed superbly by legal writer Chris Geidner, the Florida Supreme Court majority follows the logic of the Dobbs decision to destroy a right that the voters themselves had once enshrined in the state constitution. 

In a 1980 plebiscite, Florida voters added a specific right to privacy into their state’s foundational law. That amendment had guaranteed “the right to be let alone and free from governmental intrusion into … private life.”

Voters well understood what this meant at the time. Roe had laid it out plainly: The U.S. Constitution protects the right to privacy, within a penumbra of rights, and that right includes the right to an abortion, within certain limitations based on trimester and later upon fetal viability. By voting to add a privacy clause specifically, and especially in light of the U.S. Supreme Court’s decision in Roe, the state’s citizens enshrined abortion rights into state law by passing that 1980 amendment.

That in fact was the same right that the state’s high court affirmed in 1989 in its T.W. decision.

Women in Florida believed they were safe. After all, the state constitution now had a specific right to privacy in it, and there was a state Supreme Court decision exactly on point protecting that right.

Not so, said the state’s radical high court yesterday. Their reasoning? Dobbs changed everything. Using tortured logic, the 6-1 majority opined that because the T.W. case had “adopted Roe’s notions of privacy and its trimester framework as matters of Florida constitutional law,” the fact that the U.S. Supreme Court has now “repudiated” Roe justified reexamining the 1980 Florida amendment and concluding the 1989 Florida Supreme Court was simply wrong.

The majority wrote,

In light of T.W.’s analytical deficiencies and subsequent U.S. Supreme Court decisions rejecting the Roe framework on which T.W.’s reasoning depended, our assessment of the challenged statute requires us to examine the Privacy Clause and, for the first time in the abortion context, consider the original public meaning of the text as it was understood by Florida voters in 1980.

The Court then examined the legislative history, dictionary definitions and other clues to conclude that the right to privacy as understood at the time would not have included a right to abortion—which makes zero sense given what voters were hearing in the media at the time. Everyone knew that the “right to privacy” was another way of saying “right to abortion” under Roe, and they voted accordingly.

In short, the opinion is revisionist garbage, and the state’s highest court twisted history, common sense and all reason to arrive at it. It’s also a clear warning for abortion rights everywhere: Even if your state’s constitution has enshrined a right to privacy, that won’t be enough to stop an activist, extremist court from stripping that right away.

The next blow was expected and resulted directly from this horrific ruling. Because there is no longer any state constitutional right to abortion—despite a specific right to privacy in the state constitution and specific state supreme court precedent—the six-week abortion ban passed by the extremist legislature and signed by the governor can now go into effect in 30 days.

Six weeks. Many, if not most, women don’t even know they are pregnant by that point. And then, under the new ban, it’s usually too late to do anything about it. 

This ban is going to fire up women voters in the state, just as it has in Kansas, Wisconsin and Ohio, all states that had highly restrictive abortion bans on the books. Women, after all, as Justice Alito wrote dismissively in Dobbs, are not without political power. Republicans are about to find out how much.

A ballot measure battle like no other

On the same day it issued its opinion striking down the right to abortion in Florida, the state’s Supreme Court also allowed a statewide ballot measure to move forward this November that would reinstate that right. It had long been an open question whether this radical court would deal the final blow to democracy and the right of the people to decide this question for themselves. And it barely agreed to it, 4-3.

Even though abortion rights are highly popular in the state, and polling has the amendment easily passing a majority, the amendment itself faces a difficult challenge ahead.

You might recall that a ballot measure in Ohio last year brought the question of abortion rights to the fore in that state. Republican legislators there had sought to kneecap the effort to enshrine abortion rights in the state’s constitution by seeking to first pass a “supermajority” requirement of 60 percent for any constitutional amendments put to a statewide vote. Ohio voters rejected that attempt, and then went on to write the protections of Roe into their state constitution by a vote of 56.6 to 43.3.

But in Florida, the anti-abortion forces already have the upper hand. State law already requires a supermajority of 60 percent for such a constitutional amendment to pass. That means it will be close, and both sides are going to mobilize everything they have for this fight.

Somewhat less controversially, the state’s highest court also allowed a constitutional amendment legalizing marijuana by a vote of 5-2. This measure is also very popular, but to get to a supermajority, its proponents will also need to pull out all the stops.

Florida—purple again?

In the 2016 and 2020 elections, Trump won Florida, but not by unbeatable numbers. Before that, Obama won the state in 2008 and 2012 by small margins. It was considered a true swing state up until the blowout of 2022, when Gov. Ron DeSantis marched back into office with a nearly 20 point victory. 

The question for most observers is whether 2022 was an anomaly or was part of a larger, rightward trend for the state. Florida is a very voter suppressed state, with every effort to enfranchise minorities met with vehement opposition and even special “election units” to police voting. 

Republicans currently hold an 800,000 vote registration lead over Democrats in the state. But since 2022 and the Dobbs decision, things haven’t been going so well for them. They lost the Jacksonville mayoral election, which many saw a sign of voter dissatisfaction with the GOP and DeSantis’s governance. Democrats flipped a state house seat in central Florida in January, and in the most recent election, Democrats won 60 percent of all local contested elections. Gov. DeSantis was humiliated in the presidential primaries, and his “anti-woke” agenda—including taking on Disney and implementing “Don’t Say Gay” across Florida schools—has floundered in the courts and in public opinion.

But the six-week abortion ban and loss of abortion rights are an entirely different beast. In other states controlled by the GOP, including Ohio and Kansas, voters have stunned Republicans at the polls, and the same may be in store for Florida.

A high turnout rate by women and young people in Florida would have an immediate effect on the key senate race there. Rep. Debbie Mucarsel-Powell is already running a competitive race against incumbent GOP Sen. Rick Scott, who is fairly unpopular. This race was already seen as one of the best chances to flip a Republican seat in that chamber, which would narrow the path to a GOP majority considerably. The prospect of millions of additional voters turning out to restore abortion rights (and legalize pot) means Mucarsel-Powell’s race will garner new national attention and critical donor dollars. (I am now moving that contest into my own tier of top races to watch and support.)

Then there is even some question over whether the GOP can count on Florida’s 30 Electoral College votes. Republicans have long considered Florida squarely in their camp after two successive Trump wins and a DeSantis blow out, but these decisions and the November ballot measures could shift the calculus. The Biden camp even put out a statement about it, saying the state was “winnable” and citing the GOP’s “toxic political agenda” and the importance of abortion rights:

“Make no mistake: Florida is not an easy state to win, but it is a winnable one for President Biden, especially given Trump’s weak, cash-strapped campaign, and serious vulnerabilities within his coalition,” wrote Julie Chávez Rodríguez, Biden’s campaign manager.

Were the election held today, I don’t believe that Florida, as a whole, would flip blue. But the state of play is now in considerable flux thanks to these rulings, and we’ll have to reassess that likelihood as the blowback from yesterday’s decisions and excitement over the ballot measures grow.

It would be the height of irony if a DeSantis-appointed state supreme court in Florida wound up lighting the bonfire that lost Republicans the state, taking down Trump and/or the Republicans’ chances of reclaiming the senate majority.

That would be some truly welcome sunshine in the Sunshine state.