Attorney General of Florida — Opinion
May 16, 2000
RE: CONSTITUTIONAL AMENDMENT — whether Art. VI, s. 5(b), Fla. Const., is self executing. Art. VI, s. 5, Fla. Const.
Constitutional Amendment, self-executing
Robert A. Butterworth Attorney General
Mr. Wayne R. Malaney Attorney for Collier County Supervisor of Elections 2846 Remington Green Circle, Suite A Tallahassee, Florida 32308
Dear Mr. Malaney:
On behalf of Mary W. Morgan, Supervisor of Elections for Collier County, you ask substantially the following question:
Are the provisions of Article VI, section 5(b), Florida Constitution, which was adopted by the voters during the November 1998 general election, self-executing?
The provisions of Article VI, section 5(b), Florida Constitution, which was adopted by the voters during the November 1998 general election, are self-executing.
Amendment 11, proposed by the 1998 Constitution Revision Commission, contained several amendments to the constitutional provisions relating to elections. One such proposal suggested that the following language be added to Article VI, section 5:
“(b) If all candidates for an office have the same party affiliation and the winner will have no opposition in the general election, all qualified electors, regardless of party affiliation, may vote in the primary elections for that office.”
During the November 1998 general election, Amendment 11, including the above language, was approved by the electorate. The constitutional amendment became effective January 5, 1999.
In determining whether a constitutional amendment is self-executing, the Supreme Court of Florida in Gray v. Bryant
developed the following test:
“The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether . . . the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment. . . . If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing. . . . The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing.”
A principal measure for determining this issue is the language of the constitutional provision itself. If the language of the amendment is directed to the Legislature, or if it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect, the amendment is not self-executing.
The courts have generally presumed that constitutional amendments are self-executing, the rationale being that the Legislature could otherwise defeat the will of the people. As stated by the Supreme Court of Florida in Gray v. Bryant,
“[T]he modern doctrine favors the presumption that constitutional provisions are intended to be self-operating. This is so because in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.”
As the Supreme Court of Florida recognized in Williams v. Smith, the fact that the right granted by the amendment may be supplemented by legislation does not, of itself, prevent the amendment from being self-executing.
The language of the amendment you ask about contains no qualifying phrase indicating that implementation is dependent upon legislative action. Rather, it plainly states if 1) all candidates for an office have the same party affiliation, and 2) the winner will have no opposition in the general election, then all qualified electors, regardless of party affiliation, may vote in the primary elections for that office.
Therefore, since there is no language contemplating legislative action as a prerequisite to the provision’s having effect, and since the language unambiguously provides a sufficient rule by which the right it gives may be determined, it is my opinion that the presumption that the provision is self-executing should prevail.
Accordingly, I am of the opinion that the provisions of Article VI, section 5(b), Florida Constitution, which was adopted by the voters during the November 1998 general election, are self-executing.
Robert A. Butterworth Attorney General
(Fla. 1983); Op. Att’y Gen. Fla. 77-136 (1977).