[EL] Breaking: FL Supreme Court Strikes Congressional Redistricting: Analysis
Rick Hasen
rhasen at law.uci.edu
Thu Jul 9 08:34:10 PDT 2015
Breaking: FL Supreme Court Strikes Congressional Redistricting:
Analysis <http://electionlawblog.org/?p=74172>
Posted onJuly 9, 2015 8:17 am
<http://electionlawblog.org/?p=74172>byRick Hasen
<http://electionlawblog.org/?author=3>
The Florida Supreme Court, on a 5-2 vote, has struck down Florida’s
redistricting for congressional districts on state law grounds. See
* SC14-1905 The League of Women Voters of Florida, etc., et al. v.
Ken Detzner, et al. Opinion
<http://www.floridasupremecourt.org/decisions/2015/OP-SC14-1905_LEAGUE%20OF%20WOMEN%20VOTERS_JULY09.pdf>andOrder
<http://www.floridasupremecourt.org/decisions/2015/sc14-1905_ORDER.pdf>
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. 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).
[This post has been updated.]
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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
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rhasen at law.uci.edu
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http://electionlawblog.org
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