Breaking: FL Supreme Court Strikes Congressional Redistricting: Analysis

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

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).

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).

[This post has been updated.]

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