Whether the failure to exactly follow legislative strikeout underline format, was addressed, albeit in another context by the Supreme Court of Florida on Thursday in Advisory Opinion to the Attorney General re: Citizen Requirement to Vote in Florida Elections, Case No. SE19-1165 (Fla. January 16, 2020). This decision is not arising from the Amendment 4 Voting restoration amendment approved earlier. This decision addresses a proposed amendment that has not been placed on a ballot.

As summarized by the court laid out somewhat in length because context seems to be everything for this matter:

The full text of the proposed amendment, which would amend article VI, section 2 of the Florida Constitution, provides:

ARTICLE VI. Section 2. Electors.

Every citizen Only a citizen of the United States who is at least eighteen years of age and who is a permanent resident of the state, if registered as provided by law, shall be an elector of the county where registered. 1

The ballot title for the proposed amendment is: “Citizenship Requirement to Vote in Florida Elections.” And the ballot summary states:

This amendment provides that only United States Citizens who are at least eighteen years of age, a permanent resident of Florida, and registered to vote, as provided by law, shall be qualified to vote in a Florida Election.

[Footnote] 1. The proposed amendment contains a de minimis drafting error in that the proposed amendment either inadvertently strikes or inadvertently neglects to underline the word “citizen.” The text of the proposed amendment should have been drafted in relevant part either as “Every Only a citizen of the United States” or as “Every citizen Only a citizen of the United States.” Because it is abundantly clear that the word “citizen” is not being permanently stricken from article VI, section 2, we conclude that there is no reasonable probability of any voter confusion and that this scrivener’s error is not a basis for invalidating the proposed amendment.

The problem facing the Court is described in the above quoted Footnote 1. The word “citizen was either not properly underlined, or should not have been struck out.

In its approach, the Court does state what is the standard of review, merely calling the situation “a de minimis drafting error.” The Court also concludes that the situation is “abundantly clear.” Thus, the Court saves the overall text, engraphing an interpretation that allows the text to stand as a proposed amendment.

The impact on practitioners may not be realized until years after an amendment is drafted when you happen upon a recorded certificate which inadvertently has dropped a word that was in the original text.

The Court’s lack of stating a standard for review may be problematic, because unlike constitutional amendments where there is no statutory requirement for strickout underline formating, the Condominium Act in § 718.110(b) and the Homeowners’ Association Act in 720.306(1)(f) contain express underline/strikeout “legislative amendment” text requirements. Both statutes are also immediately followed by a savings clause for “non-material errors or omissions or “an immaterial error or omission.”

This may allow drafters to sleep a little bit better.

For later thought, does this decision exhibit the supremacy of text doctrine?

Continued best for the new year.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2020 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified:

Real Estate Attorney

Condominium & Planned Development Law

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

The only thing necessary for the triumph of evil is for good men to do nothing.

- Edmund Burke