Byrd v. Smart and Safe Florida

FIRST DISTRICT C OURT OF A PPEAL
STATE OF FLORIDA
_____________________________
No. 1D2026-0145
_____________________________
S ECRETARY OF STATE C ORD
B YRD,
Appellant/Cross-Appellee,
v.
SMART AND S AFE F LORIDA, et al.,
Appellees/Cross-Appellant.
_____________________________
On appeal from the Circuit Court for Leon County.
Jonathan E. Sjostrom, Judge.
January 23, 2026
ROWE, J.
Smart 	& 	Safe 	Florida 	(SSF) 	is 	a 	political 	committee
sponsoring 	Initiative 	Petition 	25-01 	to 	amend 	Florida’s
Constitution to allow for the “Adult Personal Use of Marijuana.”
For the proposed amendment to be placed on the ballot for the 2026
general election, SSF must obtain at least 880,062 petitions signed
by duly registered and qualified electors, and verified as valid by
the County Supervisors of Elections. Supervisors must verify and
report petitions with valid signatures to the Florida Division of
Elections by February 1, 2026. The Secretary of State must then

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determine 	whether 	the 	constitutionally 	required 	number 	and
distribution of signatures have been obtained to allow the proposed
amendment to be placed on the ballot. As of the date of this
opinion, 714,888 signatures have been verified and reported on the
Division’s website.1 With eight days remaining, SSF still needs
165,174 valid and verified signatures.2
SSF contends that approximately 70,000 petitions designated
as 	invalid 	should 	be 	counted 	towards 	the 	number 	of 	signed
petitions required for ballot placement. The invalidated petitions
fall into two categories. The first category includes 41,894 petitions
signed 	by 	voters 	designated 	as 	“inactive” 	under 	section
98.065(4)(d), Florida Statutes. These petitions were designated
invalid in accordance with written directions the Division e-mailed
to Supervisors on December 23, 2025 (inactive voter directive).
The second category includes 28,752 petitions collected by
non-United States citizens or non-Florida residents working for
SSF—despite a statute enacted during the 2025 legislative session
that 	prohibits 	such 	persons 	from 	collecting 	petitions: 	section
100.371(4)(b)3., Florida Statutes (2025). Shortly after the statute
became effective, a federal district court entered a preliminary
injunction enjoining the Division from enforcing the statute. See
Fla. Decides Healthcare, Inc. v. Byrd, 790 F. Supp. 3d 1335, 1344
(N.D. Fla. 2025). But just two months later, the Eleventh Circuit
vacated the preliminary injunction. See Fla. Decides Healthcare,
1 	Fla. 	Dep’t 	of 	State, 	Div. 	of 	Elections,
INITIATIVES/A MENDMENTS/R EVISIONS 	D ATABASE,
https://constitutionalinitiatives.dos.fl.gov/Home/InitDetail?accoun
t=83475&seqnum=3 (last visited January 23, 2026).
2 SSF sponsored a similar amendment for placement on the
2024 ballot—22-05 “Adult Personal Use of Marijuana.” There,
1,033,770 signatures were verified for placement on the ballot—
far more than the 891,523 signatures required. Even so, the
amendment failed at the ballot box, falling short of the sixty-
percent threshold of affirmative votes required to amend the
Florida Constitution. Art. XI, § 5(e), Fla. Const.

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Inc. v. Fla. Sec’y of State, No. 25-12370, 2025 WL 3738554, at *1
(11th Cir. Sept. 9, 2025).
After 	the 	injunction 	was 	vacated, 	the 	Division 	e-mailed
written directions to Supervisors on September 11, 2025 (non-
resident-circulator directive), instructing them to designate as
invalid petition forms collected by a non-citizen or non-resident
petition circulator during the period the injunction was in effect—
July 8, 2025, through September 9, 2025 (the injunction period).
SSF sued Secretary of State Cord Byrd and Leon County
Supervisor of Elections Mark Earley3 in circuit court, seeking
emergency 	declaratory 	and 	injunctive 	relief 	to 	compel 	the
validation and verification of the 70,646 petitions in dispute. SSF
argued that the inactive voter directive was unlawful because no
Florida law required voters to be listed as active to sign a petition.
As for the non-resident-circulator directive, SSF contended that
the petitions collected by its non-resident circulators during the
injunction period were lawfully collected.
Both parties moved for summary judgment, agreeing that
there was no genuine issue of material fact in dispute. After a
hearing 	on 	January 	15, 2026, the 	circuit court granted 	final
summary 	judgment 	for 	SSF 	on 	the 	inactive 	voter 	directive,
declaring the directive “unlawful, void ab initio, and of no effect.”
The court then enjoined Supervisor Earley from invalidating the
approximately 6064 otherwise valid petitions under the inactive
voter directive, and compelled Earley to report all petitions subject
to the directive that had otherwise been verified as valid to the
Division within the required statutory time limit.
3 SSF did not file suit against or name as defendants in the
action below the remaining sixty-six supervisors of elections.
4 SSF contended in its motion for summary judgment that, in
Leon County, 606 petitions were subject to invalidation under the
inactive 	voter 	directive 	and 	267 	petitions 	were 	subject 	to
invalidation under the non-resident-circulator directive.

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But on the non-resident-circulator directive, the court denied
all relief to SSF. The Secretary filed a notice of appeal, and SSF
filed a notice of cross-appeal that same day—January 15, 2026.
Supervisor Earley did not appeal. The Secretary’s notice triggered
an automatic stay of the circuit court’s order. See Fla. R. App. P.
9.310(b)(2). But the next day, the circuit court entered an order
vacating the stay. The automatic stay was reinstated by this Court
on January 23, 2026.
SSF 	also 	filed 	a 	notice 	under 	Florida 	Rule 	of 	Appellate
Procedure 9.125(c) suggesting that the circuit court’s order be
certified to the Florida Supreme Court for immediate resolution.
The Secretary filed a response in opposition. On January 18, this
Court declined certification and set an expedited briefing schedule,
with the last brief due on January 22, 2026.
The parties have served the briefs in the appeal and the cross-
appeal in accordance with the expedited briefing schedule. We
commend the parties and their counsel for their diligence and
professionalism in meeting the demands of the expedited schedule.
Having considered the parties’ arguments and the governing law,
we affirm the circuit court’s order denying relief to SSF on the non-
resident-circulator directive. But we reverse the portion of the
order declaring the inactive voter directive to be unlawful, and
vacate the injunction entered against Supervisor Earley.
I.
When a declaratory judgment rests on a question of law, our
review is de novo. Barnett v. Hibiscus Homeowners Ass’n, Inc., 344
So. 3d 560, 565 (Fla. 1st DCA 2022). Questions of law, such as the
interpretation of a statute, are also subject to de novo review.
Davis v. Big Bend Hospice, Inc., 419 So. 3d 272, 273–74 (Fla. 1st
DCA 2025).
II.
This is an appeal from a circuit court order purporting to enter
a declaratory judgment under section 86.011, Florida Statutes.
Chapter 86, the Declaratory Judgment Act, authorizes trial courts
to render declaratory judgments on the existence, or non-existence,

5
of any immunity, power, privilege, or right. § 86.011, Fla. Stat. But
“[b]efore a court may exercise its jurisdiction to grant declaratory
relief, some justiciable controversy must exist between adverse
parties that needs to be resolved.” Riverside Ave. Prop., LLC v.
1661 Riverside Condo. Ass’n, Inc., 325 So. 3d 997, 1000 (Fla. 1st
DCA 2021). To be entitled to a declaratory judgment, the dispute
between the parties must be based on “some definite and concrete
assertions of 	right, 	the 	contest 	thereof 	involving 	the 	legal 	or
equitable relations of parties having adverse interests with respect
to which the declaration is sought.” See Apthorp v. Detzner, 162
So. 3d 236, 241 (Fla. 1st DCA 2015) (citations omitted) (emphasis
supplied). What then was the definite and concrete assertion of
right at issue in SSF’s complaint? Put differently, what right did
SSF 	assert 	under 	the 	Secretary’s 	written 	directions 	to 	the
Supervisors? To answer these questions, we look at the complaint
and at the statutory duties and responsibilities of the Supervisors
and the Secretary.
The Supervisors are county officers. See Art. VIII, § 1(d), Fla.
Const. The Legislature has provided by general law the duties of
the Supervisors. See § 98.015, Fla. Stat. Among those duties and
relevant here is their statutory duty to maintain accurate and
current 	lists 	of 	voters 	through 	general 	registration 	list
maintenance. See § 98.065(1), Fla. Stat. (requiring supervisors “to
protect the integrity of the electoral process by ensuring the
maintenance of accurate and current voter registration records in
the 	statewide 	voter 	registration 	system”). 	As 	part 	of 	the
maintenance program, Supervisors “must designate as inactive all
voters who have been sent an address confirmation final notice and
who have not returned the postage prepaid, preaddressed return
form within 30 days or for which the final notice has been returned
as undeliverable.” § 98.065(4)(d), Fla. Stat.
Once designated as inactive, a voter must take affirmative
action to be restored to active voter status. The Legislature has
specified three and only three ways for voters to change their
status from inactive to active. The voter may (1) “updat[e] his or
her registration and confirm[] his or her current address of legal
residence,” (2) “request[] a vote-by-mail ballot and confirm[] his or
her current address of legal residence,” or (3) “appear[] to vote and
confirm[] 	his 	or 	her 	current 	address 	of 	legal 	residence.”

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§ 98.065(4)(d), Fla. Stat. The failure to take one of these actions by
the second general election after being placed on the inactive list
results in the removal of the voter’s name from the statewide voter
registration system. § 98.065(4)(d), Fla. Stat. And for a voter to be
restored to the statewide voter registration system, the voter must
re-register with the supervisor of elections. § 98.065(4)(d), Fla.
Stat.
The 	list 	maintenance 	procedures 	are 	relevant 	to 	ballot
initiatives in at least two respects. First, a supervisor may not
verify that a signature on a petition is valid unless “[t]he purported
voter is, at the time he or she signs the form and at the time the
form is verified, a duly qualified and registered voter in the state.”
§ 100.371(14)(c)4., Fla. Stat. And second, “[n]ames on the inactive
list may not be used to calculate the number of signatures needed
on any petition.” § 98.065(4)(d), Fla. Stat.
Relevant to the Secretary’s non-resident-circulator directive,
the Supervisors may not count as valid a petition submitted by an
ineligible 	or 	unregistered 	petition 	circulator. 	Because 	of 	the
ongoing problems with fraud5 in the initiative petition process, the
Legislature enacted additional measures with the intent to deter,
prevent, and penalize fraudulent activity. See Ch. 25-21, § 1, at 6,
Laws 	of 	Fla. 	Governor 	DeSantis 	approved 	the 	Committee
Substitute 	for 	House 	Bill 	1205 	(HB 	1205), 	which 	amended
initiative petition laws to ensure ballot integrity and a valid
election process. See Ch. 25-21, Laws of Fla.
5 Following enactment of the statute, the Florida Office of
Elections Crimes and Security reported that its investigations
indicated 	that 	over 	one 	hundred 	SSF 	petition 	circulators
committed criminal activity, at least seventeen petition circulators
were arrested, hundreds of criminal investigations remained open,
and additional arrests were expected in 2025. See 2024 OECS
Annual Report to the Legislature (Jan. 15, 2025) at pages 3-19.
Among the violations reported in the past twelve months, SSF self-
reported about fifty instances of suspected fraud perpetrated by its
petition circulators from March 2025 to December 2025.

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In light of the ongoing fraudulent activity, the Legislature
imposed a requirement that circulators must be United States
citizens 	and 	Florida 	residents. 	Id. 	§ 	6 	at 	11 	(codified 	at
§ 100.371(4)(b), Fla. Stat. (2025)). It also required that any petition
“submitted by an ineligible or unregistered petition circulator
must be invalidated and may not be counted toward the number of
necessary signatures for placement on the ballot.” Id. § 6, at 18
(codified 	at 	§ 100.371(14)(h), 	Fla. 	Stat. 	(2025)). 	Finally, 	the
Legislature imposed a moratorium on verifying petitions between
July 1 and September 30, 2025. Id. § 20, at 28.
The Secretary of State is an officer of the executive branch.
§ 15.01, Fla. Stat. The Florida Legislature has designated the
Secretary as the chief election officer. § 97.012, Fla. Stat. Under
Florida’s 	Election 	Code 	(Chapters 	97 	to 	106 	of 	the 	Florida
Statutes), 	the 	Secretary 	is 	charged 	with 	obtaining 	and
maintaining “uniformity in the interpretation and implementation
of the election laws.” § 97.012(1), Fla. Stat. The Legislature has
authorized 	the 	Secretary 	to 	promulgate 	“by 	rule 	uniform
standards 	for 	the 	proper 	and 	equitable 	interpretation 	and
implementation of the requirements of [the Code].” § 97.012(14),
Fla. Stat. Further, the Secretary may “[b]ring and maintain such
actions at law or in equity by mandamus or injunction to enforce
the performance of any duties of a county supervisor of elections or
any official performing duties.” § 97.012(14), Fla. Stat. Finally, and
relevant here, the Secretary may “[p]rovide written direction and
opinions to the supervisors of elections on the performance of their
official duties” under the Code. § 97.012(16), Fla. Stat.
Turning now to SSF’s complaint, SSF pleaded two counts.
First, SSF sought a declaration that the inactive voter directive
was “unlawful and void ab initio.” And second, SSF sought a
declaration 	that 	the 	non-resident-circulator 	directive 	was
“unlawful and void ab initio.” SSF also sued to enjoin Supervisor
Earley from following either directive.
But simultaneously with seeking a declaration of rights as to
the Secretary’s e-mail directives, SSF also alleged—on page three
of its complaint—that the Secretary’s directives to the Supervisors
are “nothing more than non-binding requests that are unlawful
and contrary to express statutory dictates.” In its memorandum of

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law in response to the Secretary’s summary judgment motion, SSF
described the directives as “the whims of a bureaucrat” and as
“void 	and 	unenforceable.” 	In 	its 	initial 	brief, 	SSF 	similarly
characterized the directives, stating that they “lack the force of
law” and cannot be considered advisory opinions under section
106.23(2), Florida Statutes.
Assuming 	without 	deciding 	that, 	as 	SSF 	contends, 	the
Secretary’s 	e-mail 	directions 	amount 	only 	to 	“non-binding
requests,” the directions cannot then create a right that can be
declared. Cf. Askew v. City of Ocala, 348 So. 2d 308, 310 (Fla. 1977)
(holding that a lawsuit challenging an advisory opinion of the
Attorney General did not present a justiciable controversy in an
action for declaratory relief). And SSF has identified no source of
law from which a right or duty between SSF and the Secretary can
be identified with respect to the Secretary’s authority to provide
written directions to the Supervisors.
III.
We now turn to the Secretary’s appeal from the circuit court’s
order declaring the inactive voter directive “unlawful, void ab
initio, and of no legal effect.” SSF’s complaint never alleged the
existence, or non-existence, of any immunity, power, privilege, or
right that the court could adjudicate in a declaratory judgment
action. And so, we are left to review on appeal a circuit court order
purporting to enter a judgment declaring unlawful the Secretary’s
written directions e-mailed to the Supervisors—or, as SSF alleges
in 	its 	complaint—the 	Secretary’s 	non-binding 	requests 	to 	the
Supervisors. SSF essentially sought judicial advice different from
the advice provided by the Secretary in his written directions to
the Supervisors. And thus, based on the complaint, the circuit
court’s declaration that the Secretary’s written directions were
“unlawful and void ab initio” was not a binding adjudication of any
right. See Hewitt v. Helms, 482 U.S. 755, 761 (1987) (“The real
value of the judicial pronouncement—what makes it a proper
judicial resolution of a ‘case or controversy’ rather than an advisory
opinion—is 	in 	the 	settling 	of 	some 	dispute 	which 	affects 	the
behavior of the defendant towards the plaintiff.”).
The Secretary argues that the circuit court reversibly erred
when it declared that the Secretary’s written directions to the

9
Supervisors were “unlawful, void ab initio, and without legal
effect.” 	We 	agree. 	There 	was 	nothing 	unlawful 	about 	the
Secretary’s providing written directions to the Supervisors on how
to perform their official duties to verify petitions submitted by
inactive 	voters. 	Rather, 	the 	Secretary 	had 	specific 	statutory
authority to provide directions to Supervisors on how they should
perform their official duties. § 97.012(16), Fla. Stat.
For this reason, we reverse the circuit court’s order declaring
unlawful 	the 	Secretary’s 	written 	direction 	to 	the 	Supervisors
regarding inactive voters, and we vacate the injunction entered
against Supervisor Earley.
IV.
We turn now to the cross-appeal. SSF argues that the trial
court reversibly erred when it denied all relief on SSF’s complaint
for declaratory and injunctive relief on the non-resident-circulator
directive. SSF contends that the Secretary’s written directions to
the Supervisors as to the validity of the petitions collected by the
non-resident 	circulators 	were 	inconsistent 	with 	the 	governing
provisions of the Florida Election Code.
We affirm the order on appeal but do so on other grounds. See
Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“[T]he ‘tipsy
coachman’ doctrine[] allows an appellate court to affirm a trial
court that ‘reaches the right result, but for the wrong reasons’ so
long as ‘there is any basis which would support the judgment in
the record.’” (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA,
731 So. 2d 638, 644 (Fla. 1999))).
The circuit court correctly declined to provide declaratory
relief to SSF. SSF alleged in its complaint and argued on appeal
that 	the 	Secretary’s 	written 	directives 	were 	non-binding 	and
without legal effect. As we have explained, the Secretary had
statutory authority to issue directions to the Supervisors. Beyond
that, SSF identified no right to be adjudicated regarding the
Secretary’s e-mail directions. Instead, SSF sought an advisory
opinion from the court in the guise of a request for a declaratory
judgment. The circuit court did not err when it denied all relief on
SSF’s 	complaint 	for 	declaratory 	relief 	on 	the 	non-resident
circulator directive.

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A FFIRMED in part; REVERSED in part.
K ELSEY and L ONG, JJ., concur.
_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Ashley E. Davis, General Counsel and Bilal Ahmed Faruqui,
Deputy 	General 	Counsel, 	Florida 	Department 	of 	State,
Tallahassee; and Jeffrey Paul DeSousa, Acting Solicitor General,
Jason J. Muehlhoff, Chief Deputy Solicitor General, and Samuel
F. 	Elliott, 	Deputy 	Solicitor 	General, 	Tallahassee, 	for
Appellant/Cross-Appellee.
Glenn Burhans, Jr. and Hannah E. Murphy of Stearns Weaver
Miller 	Weissler 	Alhadeff 	& 	Sitterson 	P.A., 	Tallahassee, 	for
Appellee/Cross-Appellant Smart & Safe Florida.
Mark Herron of Messer Caparello, P.A., Tallahassee, for Appellee
Mark Earley, in his official capacity as Supervisor of Elections of
Leon County.