Florida Supreme Court invalidates 8 congressional districts

On Thursday, the Florida Supreme Court struck down eight congressional districts in Florida gerrymandered to benefit Republicans. the Tallahassee Democrat reports, State Supreme Court strikes down congressional districts:

The_Gerry-Mander_EditA bitterly divided Florida Supreme Court threw out eight congressional districts Thursday in a long-awaited ruling, ordering the Legislature to redraw the lines within the next 100 days.

The 5-2 decision, which featured a split between the court’s more-liberal majority and its conservative minority, will likely force lawmakers to return to Tallahassee for their third session of the year. It also marked the second time that justices had tossed out a map drawn by the Republican-dominated Legislature as part of the 2012 redistricting process.

In an opinion written by Justice Barbara Pariente, the majority found that Leon County Circuit Judge Terry Lewis was correct to find that the congressional map approved as part of the once-a-decade redistricting process was corrupted by the efforts of Republican political consultants — violating an anti-gerrymandering “Fair Districts” constitutional amendment voters approved in 2010.

But Pariente argued that Lewis was essentially too timid in his ruling and that he deferred to lawmakers too much when deciding which districts should and shouldn’t be thrown out and how drastic any changes should be.

“To do so is to offer a presumption of constitutionality to decisions that have been found to have been influenced by unconstitutional considerations,” Pariente said. “The existence of unconstitutional partisan intent is contrary to the very purpose of the Fair Districts Amendment and to this court’s pronouncements regarding the state constitutional prohibition on partisan political gerrymandering.”

Chief Justice Jorge Labarga and Justices James E.C. Perry and Peggy Quince joined Pariente’s decision. Justice R. Fred Lewis agreed with the outcome of the case, but didn’t sign onto the reasoning in the ruling.

Last year, Terry Lewis invalidated two districts, which lawmakers redrew with limited impact on other congressional seats. Those districts are represented by Democrat Corrine Brown and Republican Daniel Webster. But Thursday’s opinion not only once again struck down Brown’s Congressional District 5, it also ordered lawmakers to redraw the borders for seven other seats. The cascading changes could affect many of the state’s 27 congressional districts.

[Justices also ordered lawmakers to redraw Districts 13 and 14 “to avoid crossing Tampa Bay.” That could endanger Republican Congressman David Jolly, whose district would likely absorb more Democratic parts of Pinellas County as Democratic Congresswoman Kathy Castor’s district would be pushed out of the county.

The court also found fault with the districts of South Florida Democrats Ted Deutch and Lois Frankel and Republicans Mario Diaz-Balart, Carlos Curbelo and Ileana Ros-Lehtinen on a variety of grounds.]

“Today, the Florida Supreme Court took the Florida Legislature to the woodshed,” said Pamela Goodman, president of the League of Women Voters of Florida, which led the legal fight against the districts. “Their egregious behavior using partisan political operatives in the redistricting process was appropriately reprimanded.”

SC14-1905  The League of Women Voters of Florida, etc., et al. v. Ken Detzner, et al. Opinion and Order.

Rick Hasen at Election Law Blog provides his Analysis:

The Florida Supreme Court, on a 5-2 vote, has struck down Florida’s redistricting for congressional districts on state law grounds.

The court found that the plans were a partisan gerrymander, and that this intent to favor Republicans violated provisions of the state constitution passed by voters in the “Fair Districts Amendment.” The court’s decision includes a lengthy discussion of evidence of such improper intent.

The court has ordered the Florida legislature to create new plans, to use a particular software package to create that plan, and to submit the new plan to the state Supreme Court for approval:

Accordingly, while we affirm the trial court’s finding that the Legislature’s enacted map was “taint[ed]” by unconstitutional intent, we reverse the trial court’s order upholding the Legislature’s remedial redistricting plan. We relinquish this case to the trial court for a period of 100 days from the date of this opinion, with directions that it require the Legislature to redraw, on an expedited basis, Congressional Districts 5, 13, 14, 21, 22, 25, 26, 27, and all other districts affected by the redrawing, pursuant to the guidelines set forth in this opinion. We emphasize the time-sensitive nature of these proceedings, with candidate qualifying for the 2016 congressional elections now less than a year away, and make clear that we take seriously our obligation to provide certainty to candidates and voters regarding the legality of the state’s congressional districts. Upon the completion of the redrawing of the map, the trial court shall hold a hearing where both sides shall have an opportunity to present their arguments and any evidence for or against the redrawn map, and the trial court shall then enter an order either recommending approval or disapproval of the redrawn map.

Further, the Court orders some transparency and fairness to the mapping process:

We therefore set forth the following guidelines and parameters, which we urge the Legislature to consider in adopting a redrawn map that is devoid of partisan intent. First, in order to avoid the problems apparent in this case as a result of many critical decisions on where to draw the lines having been made outside of public view, we encourage the Legislature to conduct all meetings in which it makes decisions on the new map in public and to record any non-public meetings for preservation. As we stated in Apportionment IV, “one of our state constitutional values is a strong and well-established public policy of transparency and public access to the legislative process.” Id. at 146. This transparency is critical in light of both the purpose of the Fair Districts Amendment to outlaw partisan manipulation in the redistricting process and the trial court’s finding here that “an entirely different, separate process” to favor Republicans and incumbents was undertaken contrary to the Legislature’s assertedly transparent redistricting effort. Id. at 149.

Second, the Legislature should provide a mechanism for the challengers and others to submit alternative maps and any testimony regarding those maps for consideration and should allow debate on the merits of the alternative maps. The Legislature should also offer an opportunity for citizens to review and offer feedback regarding any proposed legislative map before the map is finalized. Third, the Legislature should preserve all e-mails and documents related to the redrawing of the map. In order to avoid additional, protracted discovery and litigation, the Legislature should also provide a copy of those documents to the challengers upon proper request. Finally, we encourage the Legislature to publicly document the justifications for its chosen configurations. That will assist this Court in fulfilling its own solemn obligation to ensure compliance with the Florida Constitution in this unique context, where the trial court found the Legislature to have violated the constitutional standards during the 2012 redistricting process.

Does the Florida legislature have recourse to the federal courts? After all, the Constitution gives the state legislature the power to set the rules for congressional redistricting, and this is the product of an initiative and a state court overruling the legislature. (Echoes of a Bush v. Gore type argument about legislature.)  Until a few weeks ago, this would have been a plausible argument, but it is now apparently foreclosed by the U.S. Supreme Court’s opinion in the Arizona redistricting case. [Arizona State Legislature v. AIRC]. Here’s a footnote from today’s Florida case:

We reject the Legislature’s federal constitutional challenge to the Fair Districts Amendment. The Supreme Court’s recent opinion in the Arizona case confirms that neither the “Elections Clause” of the United States Constitution, U.S. Const. art. I, § 4, cl. 1, nor federal law, 2 U.S.C. § 2a(c), prohibits the people of a state, through the citizen initiative process, from directing the way in which its congressional district boundaries are drawn. As the Supreme Court explained, “[b]anning lawmaking by initiative to direct a State’s method of apportioning congressional districts” would “stymie attempts to curb partisan gerrymandering, by which the majority in the legislature draws district lines to their party’s advantage.” Ariz. State Legislature, 2015 WL 2473452, at *20; see also Brown, 668 F.3d at 1280 (rejecting a federal constitutional challenge to the Fair Districts Amendment based on reasoning wholly consistent with the Supreme Court’s reasoning in Arizona State Legislature).

Think of this as the revenge of Florida in Bush v. Gore on the meaning of the term legislature (see my Slate piece for context).

Richard Pildes at Election Law Blog offers further analysis, The Alabama Redistricting Cases and Today’s Decision Invalidating Eight Congressional Districts in Florida:

A major basis for today’s Florida Supreme Court decision is that the Florida legislature wrongly believed or purported to believe that the Voting Rights Act required raising the population of black voters to certain high levels.  Relying on the Supreme Court’s decision this Term in the Alabama racial-gerrymandering cases, the Florida court found that the VRA did not require raising the black populations to these levels.  The Florida court concluded that the Republican legislature had done this for partisan political purposes, i.e., as a way to pack Democratic voters into a few districts and limit their power elsewhere.  Because Florida’s Constitution now bans partisan gerrymandering, as a result of a voter initiative, these districts therefore were in violation of Florida law.

This is a particularly interesting ramification of the Supreme Court’s Alabama decision.  Today’s decision makes the Supreme Court’s decision relevant even in cases that involve state-law claims, rather than only those — like the one at issue in the Alabama cases — that involve the U.S. Constitution.  In the Alabama cases, the claim is that the State engaged in an unconstitutional racial gerrymander when it used race to draw districts beyond the point at which the VRA required race to be taken into account.  In today’s case, the Florida court instead concluded, in essence, that the State had used the VRA as an excuse to engage in partisan gerrymandering.  Florida is now the fourth state, at least, in which statewide redistricting plans are being challenged based on the principles recognized in the Supreme Court’s Alabama decision.  The federal court in Virginia has struck down a congressional district there, and the issues are currently pending before the North Carolina Supreme Court.

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This is an important decision, for many reasons.  We now have a court decision enforcing voter-initiated prohibitions on partisan gerrymandering.  Time will tell what the net effect will be, since the court gave the Florida legislature another chance to draw these seven congressional districts in a way consistent with the state Constitution’s ban on partisan gerrymandering.

There is also the possibility that the Florida legislature will appeal, and Jacksonville area Democratic U.S. Rep. Corrine Brown may pursue legal action under the Voting Rights Act. Will GOP-led Legislature appeal gerrymandering case?

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