When her nephew Alex Schachter was murdered with an assault weapon at Marjory Stoneman Douglas High School in February 2018, Gail Schwartz was devastated — and then activated. Frustrated by the government inaction on gun violence, Gail founded the Ban Assault Weapons Now (BAWN) movement, which aimed to pass a constitutional amendment to, you guessed it, ban assault weapons in Florida.
Two years, nearly 200,000 petitions and many more volunteer hours later, the BAWN amendment was disqualified by the Supreme Court of Florida. The reason? The judges determined the language explaining the amendment was too confusing for we simpleminded voters to understand.
As a certain future president might say: Malarky!
This ruling is the latest in a troubling national pattern, thanks to a new crop of ultraconservative judges who have taken hold of our judiciary. These judges are often products of the Federalist Society, an organization that claims to support an independent, originalist judiciary, but in reality just promotes hard right-wing partisan ideologues. Unfortunately for us, this new Florida Supreme Court majority is seemingly hellbent on cementing its status as the poster child for that movement.
In this case, the court’s decision hinged on its interpretation of the brief summary printed on the ballot when voters actually decide whether to approve the amendment. According to the justices, while the title and vast majority of the explanation was clear, the last few words of the summary could have caused confusion over whether a current assault weapon owner could transfer their weapon to someone else. Because they claimed this language might confuse voters, the justices disqualified the entire two-year effort.
Now, I’m no fancy Supreme Court justice, but I think “Ban Assault Weapons” is actually pretty easy to understand. So easy, in fact, that during the hours I personally spent collecting petitions for the movement, not a single voter I encountered ever struggled to understand the purpose of the amendment — not even once. So easy that nearly 200,000 Floridians enthusiastically signed the petition. Perhaps most important, it was so easy to understand that the NRA felt compelled to dump barrels of money into our state to stop it. And stop it, they did.
Rather than simply ruling on the implementation of the existing language, or even offering an alternative ballot summary, the judges invalidated the entire effort, and with it silenced the voices of millions of Floridians.
We should call this ruling exactly what it is: the latest attack on democracy by extreme right wing activist judges.
Thanks to gerrymandered districts, underfunded election infrastructure and good old-fashioned voter suppression, our elected government is hardly representative of our state. For many Floridians, the citizen initiative process is the last remaining way to truly effect change statewide — it’s no wonder the United States Supreme Court once called citizen initiatives “a veto power lodged in the people” (Justice Ruth Bader Ginsburg, queen, writing for the majority). Unfortunately, now even that most basic function of civic participation is under attack.
Let me be clear. There was nothing wrong with the BAWN amendment, and it was certainly not too confusing for voters to understand. It was written by experienced attorneys to be as direct as possible and it followed both the letter and spirit of the constitutional amendment process. Republicans desperately searched high and low for a legitimate reason to throw it out, and finding none, they just made one up instead.
Conservatives love to moan and groan about “judicial activism” when courts take action to protect and enforce our constitutional civil liberties, but they are painfully silent — or worse, publicly jubilant — when extremist Republican appointees take a hacksaw to our fundamental rights and undermine the most foundational elements of our democracy.
If our justices are going to proudly boast about their Federalist Society memberships, someone should remind them that the original Federalists strongly supported citizen initiatives in government. In Federalist No. 57, James Madison specifically referenced the importance of citizen initiatives so that government officials would have “an habitual recollection of their dependence on the people.”
I think James Madison was pretty clear, but maybe his language was too confusing for these judges.
Ben Friedman is an attorney, community advocate and the director of public affairs at Elevation Financial Group. Follow him on Twitter @BenFriedman.
