Ordinary voters do not have the right to decide who sits on the Florida Supreme Court, but voters can decide whether sitting justices remain.
And in this year’s Nov. 8 general election, they are being asked whether to retain five state Supreme Court justices: Charles Canady, John Couriel, Jamie Grosshans, Jorge Labarga and Ricky Polston.
Besides Labarga, the other four justices are members of the activist conservative supermajority now serving on the court — a faction that could soon invalidate the Florida Constitution’s protections for abortion rights; that the governor’s anti-minority congressional redistricting plan prevails during this election; and this facilitated the application of the death penalty.
The election therefore gives voters a chance to reject the conservative policies of Governor Ron DeSantis; appointed Couriel and Grosshans, while Charlie Crist, when he was governor, appointed Canady and Polston.
In truth, the odds are stacked against it; No sitting justice has been denied retention in Florida since retention voting began in the 1970s — Justices Leander Shaw and Rosemary Barkett survived conservative-backed campaigns in 1990 and 1992, Shaw with 59.6 percent of the vote and Barkett with 60.9 percent.
“Given our history of retention elections, I would expect all five justices to be retained,” constitutional law professor Bob Jarvis of Nova Southeastern University Shepard Broad College of Law told the Phoenix by email.
Moreover, there would be nothing to prevent DeSantis from reappointing any of the defeated justices or other justices with the same philosophical bent. For these appointments, they would have to go through the usual process: selection by the Supreme Court’s Judicial Nominating Commission and appointment by the governor.
“So the loser judge or justice would have to be one of the three to six nominees of the Supreme Court JNC and the governor would have to pick him, but if all of those things happened, yes, that would be a way to defeat the will of the voters,” Jarvis said.
A coalition of voting rights groups called We Draw the Lines is giving it a shot, targeting black and Hispanic votes in Northeast, Central and South Florida and the Tampa Bay region.
Equal Education Fund
Those groups, including the Equal Ground Education Fund, Florida Rising, Black Voters Matter and the League of Women Voters of Florida, are unhappy with the new congressional district map that DeSantis pushed through the Legislature in violation of what they say is Florida’s Fair Districts Amendment. .
They argue that the governor’s plan reduces the ability of black voters to elect representatives of their choice. What’s more, it openly favors Republicans, unlike the amendment’s ban on favoring any political party, giving them an advantage in 20 of Florida’s 28 counties.
“With this digital ad campaign, we hope to highlight the role the Supreme Court plays in this and educate voters about their progress in the redistricting fight,” Equal Ground political director Genesis Robinson told the Phoenix newspaper when announcing the campaign on Oct. 20.
Democratic Party groups including the Hillsborough County Democratic Executive Committee have asked their supporters to vote against retaining all judges this year except Labarga.
The South Florida Sun-Sentinel and Orlando Sentinel offered the same recommendation in a joint editorial — not to all justices, but yes in Labarga’s case, described as “a lone moderate justice whose principled but solitary dissents in high-profile cases have revealed majorities of radical activism.”
The newspaper called Canady, Couriel, Grosshans and Polston “the core of the new hardline majority”.
“The Florida Supreme Court has become a breathtaking activist, overturning precedents en masse to make criminal laws tougher, the death penalty more likely and civil courts more hostile to people seeking damages against Big Tobacco and other corporate defendants,” the Sun-Sentinel wrote.
That’s because DeSantis’ narrow victory over Democrat Andrew Gillum four years ago included a bonus prize: the impending retirement of three liberal justices gave him a chance to put his supermajority on the court of members of the Federalist Society for Law and Public Policy Studies, who, like the governor himself, are doctrinaire conservatives.
Preservation of merit
Florida adopted its merit retention system during the 1970s after a series of court corruption scandals. Governors can choose judges from names submitted by the Judicial Nominating Commission, but ultimately they must face voters who will decide whether or not to keep them.
The idea was to remove politics from the process, but Republican governors, starting with Jeb Bush, persuaded the legislature to allow them to control the selection of justices. (Further analysis is available here.)
- A Yale law graduate, Canady served in both the Florida and U.S. Houses before becoming general counsel to former Gov. Jeb Bush. Bush later placed Canady on the Second Circuit Court of Appeals, and Crist appointed him to the Supreme Court in 2008. He served as Chief Justice three times.
- Couriel is a Harvard Law graduate and former assistant U.S. attorney in Miami who ran an unsuccessful campaign for the state House in 2016. Before being sued by DeSantis, Couriel was an attorney in the Miami and Buenos Aires offices of Kobre & Kim, where he handled international disputes.
- Grosshans served on the Fifth Circuit Court of Appeals when DeSantis placed her on the Supreme Court in 2020. This was after the judge refused to seat Renatha Francis. Grosshans holds a degree from the University of Mississippi School of Law and has spent most of her career practicing family law in Orlando.
- Polston first trained as a CPA before graduating from FSU Law. He served on the First Circuit Court of Appeals before Crist placed him on the U.S. Supreme Court in 2008.
- Labarga holds a law degree from the University of Florida and served as an assistant public defender and assistant state attorney before practicing criminal defense and personal injury cases in private practice. Former Gov. Lawton Chiles appointed him to the Palm Beach County Judiciary and later to the Fourth Circuit Court of Appeals before Crist placed him on the Supreme Court.
As for those congressional districts, the Supreme Court displayed a rare exercise of independence from the governor on his request for an advisory opinion on the legality of his map. But the court later voted 4-1 to approve DeSantis’ map “and as a result, we no longer have two access seats for blacks in our state’s congressional makeup,” Equal Ground’s Robinson noted.
Judge Labarga disagreed; Justices Canaday and Alan Lawson abstained.
The court also overruled the governor in 2020 by refusing to seat Francis, a judge in Palm Beach County, because she had not been a member of the Florida Bar for the constitutionally required 10 years. Voting against the governor were Canady, Labarga, Alan Lawson, Polston and Carlos Muñiz, who is not up for retention this year.
Couriel refused. Francis — who by then had met the qualifications — joined the court in September after DeSantis re-selected her.
The death penalty has become a hot topic after the jury in the Parkland school shooting voted to return a life sentence. DeSantis has announced he will seek legislation to repeal the state law requiring unanimous jury verdicts to be carried out, and it’s safe to assume the Republican-controlled Legislature will follow through.
The Supreme Court has already opened the door by overturning precedent requiring unanimous jury verdicts to impose death sentences; the DeSantis court also lowered the legal standard for considering circumstantial evidence, made it easier to execute someone with an intellectual disability, imposed stricter standards for determining the admissibility of expert testimony, and eliminated proportionality review in death cases, a safeguard purported to ensure that only the most serious cases end in execution.
Typically in these cases, Labarga wrote the court’s lone dissent against conservatives. In the case of the proportionality review, for example, he voted against the majority, which included Canady, Couriel, Polston and Muñiz. Grosshans, new to the court at the time, did not attend.
The court also made it easier to impose harsh sentences in non-death cases, again overruling an established constitutional right by allowing a lower court to allow a defendant to maintain his innocence in a gun possession case, concluding that he didn’t do that. show remorse
Canady wrote the opinion, joined by Justices Alan Lawson, Muñiz, Couriel and Grosshans. Polston and Labarga disagreed.
The court has become increasingly hostile to citizen initiatives — one way for rank-and-file voters to bypass the Republican-controlled legislature to enact populist policies — generally by finding fault with ballot language.
For example, in two marijuana-legalization initiatives slated for this year’s general election, the court ruled that the language risked misleading voters about what the measures would do. In both cases, Labarga and Justice Alan Lawson dissented from the conservative majority.
The court also blocked an initiative to ban assault weapons from the voters.