<x-flowed>(If you are wondering why Dan could not post this directly, it is because he used the word sub-scribe in his post, and that always causes the list to bounce the message, thinking it is a request to take that action. -- Rick)

Dan Lowenstein writes:

Perhaps there are no judges in the U.S. who can reasonably be described as hard-left jurists.  But I'd be surprised to find someone who believes there are such jurists who does not include the majority of the Florida Supreme Court in their number.

       I had the same question as Mr. Johnson as to what Common Cause thinks the political motivation was.  Certainly, there are many liberals who do not sub-scribe to the "reform" orthodoxy on districting.  The liberals on the Florida Supreme Court might be old-fashioned believers in politics.  But as Mr. Johnson points out, Florida is not the most likely state in which to find liberals holding fast to such a belief in the context of districting.

       Nevertheless, I think Common Cause could well be right that the decision is politically motivated.  The explanation would lie in the court's other decision today, striking down the anti-same-sex marriage initiative.  That will be the infinitely more salient decision politically, and striking down the "liberal" districting initiative on the same day might provide a bit of political coverage for the court.  To put it differently, imagine yourself in the position of a reasonable liberal trying to defend the court if it had struck down the marriage initiative but upheld the redistricting initiative.  The thought of trying to do that is almost enough to make me want to return to grading student papers.

       Although I think that political motivation is very plausible, it is not necessarily correct.  Or, while political motivation may be a sufficient, it may not be a necessary explanation.  The Florida court's general view of the initiative process has been: if it moves, it violates the single subject rule.  The only thing that can be said for this decision is that it is consistent with the Florida court's view that the single subject rule entitles it to veto initiative proposals at will.  No one is likely to mistake me for a friend to these redistricting "reform" initiatives.  But when the California Supreme Court removed one of them from the ballot in 2000 in a decision contradicting its own otherwise reasonable single subject doctrine, I criticized them sharply (in the first issue of the Election Law Journal).  The Florida court is at least a consistent usurper of power.


         Best,

         Daniel Lowenstein
         UCLA Law School
         405 Hilgard
         Los Angeles, California 90095-1476
         310-825-5148