Florida Supreme Court bumps ‘energy choice’ measure from 2020 ballot

By John Haughey | The Center Square

Scratch one prospective constitutional amendment from what is certain to be a crowded November ballot.

The Florida Supreme Court struck down a prospective "energy choice" measure from qualifying for the ballot, agreeing with the state and a long list of opponents in an 11-page opinion released Thursday that its summary language is misleading.

“The ballot summary affirmatively misleads voters to believe the initiative grants a right to sell electricity,” the court said in its ruling, adding the ballot summary tells voters the prospective measure would give residents the ability to “sell electricity when, in fact, the amendment does no such thing.”

Sponsored by Alachua-based Citizens for Energy Choices (CEC), as of Thursday, the measure had presented 642,874 validated petition signatures to the state’s Division of Elections (DOE) – less than 124,000 from the 766,200 signatures necessary by Feb. 1 to qualify for November’s ballot.

The initiative calls for allowing individual customers to choose energy providers or generate and sell electricity themselves. It would limit investor-owned utilities (IOUs) to building, operating and repairing the grid, which would dramatically curtail the operations of the state’s largest IOUs, including Florida Power & Light, Duke, Tampa Electric and Gulf Power.

CEC has raised $5.53 million in its campaign, nearly all from the Coalition for Energy Choice, which includes Infinite Energy of Gainesville and two Texas-based companies, NRG Energy and Vistra Energy Corp.

The state’s four IOUs were among opponents who filed more than 13 briefs claiming the measure was a “Frankenstein’s Monster of policies” and a power grab by start-up companies that want to carve into a market dominated by investor-owned utilities during the mandated Supreme Court review of the ballot’s language in August.

Among other opponents: Florida Attorney General Ashley Moody, the Florida Chamber of Commerce, the Florida Economic Development Council, the state’s Public Service Commission, both state legislature chambers, the Florida Municipal Electric Association, Associated Industries of Florida, the Florida Hospital Association, the Urban League, Audubon of Florida, the Florida League of Cities and the Florida Electric Cooperatives Association.

“Contrary to the image of regular citizens trying to change the way they are governed, this is a well-heeled special interest group trying to advance a policy change that would benefit their industry,” the Florida Senate said in its brief. “The Court should be skeptical of commercial interests attempting to use the citizen initiative process to benefit themselves.”

Opponents also argued the prospective measure violates the state constitution’s single-issue requirement for ballot measures.

The “initiative encompasses at least two very disparate subjects – purportedly promoting ‘competition’ in a restructured energy marketplace while, at the same time, eliminating IOUs from competing in that marketplace,” the Florida Chamber and Florida Economic Development Council said in their brief.

“The only ‘single unifying purpose’ of the ballot initiative that proponents can identify is ‘competition.’ However, a subject such as ‘competition’ necessarily violates the single-subject rule because it is so broad and general that it could encompass almost anything,” the brief continued.

In its ruling released Thursday, the Supreme Court concurred on all opponents’ objections.

While the "energy choice" initiative would grant “several rights, such as the right to purchase electricity from a provider of one’s choice, the right to purchase electricity in competitive wholesale and retail markets, the right to generate electricity oneself or in combination with others,” the measure cannot legally provide the “freestanding constitutional right to sell electricity,” the court ruled.

“The question is not whether a person has the right to sell electricity if the Initiative is adopted, but whether, as the ballot summary claims, the Initiative grants that right. It does not, and the ballot summary is therefore affirmatively misleading,” the opinion states.

Three initiative campaigns have, thus far, qualified to go before voters in November’s general election – Florida For A Fair Wage’s “Fight For $15” constitutional amendment seeking to raise the state’s minimum wage to $15 an hour by 2026; an “open” primary proposal for state Legislature, Governor and Cabinet, regardless of political party membership; a constitutional amendment stipulating “only,” rather than “any,” U.S. citizen can legally vote.

The state, led by Moody, is challenging the wording in the “open primary” measure as well as two other prospective amendments still vying to meet the signature requirements by Feb. 1 – Ban All Assault Weapons’ (BAWN) “assault weapons” ban and Make it Legal Florida’s (MILF) marijuana adult-use legalization amendment.

Neither is likely to meet the Feb. 1 deadline to have 766,200 verified voters signed onto their petitions. As of Thursday, BAWN had presented just 130,852 signatures to the DOE while MILF had collected 275,540.

MILF filed a 57-page class-action lawsuit on Dec. 31 in Leon County Circuit Court challenging restrictions imposed on petition-gatherers by lawmakers during their 2019 session.