Like the aftershocks of an earthquake, Florida legislators are feeling the tremors of the Florida Supreme Court’s redistricting ruling on their own districts — particularly in the state Senate.
Senators who thought they had comfortable re-election bids are now facing uncertainty as questions loom about whether the same factors that led the court to invalidate the congressional map will provoke judges to reject the Senate political boundaries, too. That would force the Legislature into another special session to redraw the Senate map and potentially make politically safe districts for many incumbents more competitive.
Legislative leaders are privately discussing whether to proactively redraw the Senate map before it is thrown out by a court or — in their worst-case scenario — redrawn by the court.
“One could say that since the court has returned the congressional maps to us twice, there is reason to believe a Senate map could be returned as well,” said Rep. Jose Oliva, R-Miami, who will head the House redistricting committee when lawmakers return in special session in August.
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But, Oliva told the Herald/Times, “if any discussions are happening about the Senate maps, it’s happening between presiding officers.” House Speaker Steve Crisafulli, R-Merritt Island, and Senate President Andy Gardiner, R-Orlando, would not confirm that discussions are taking place.
At least one senator is not waiting to find out. Sen. Jack Latvala, R-Clearwater, persuaded the Florida Division of Elections to let him open a campaign account for 2016, allowing him to raise money for an election he did not expect to have.
“I thought that last November would be my last election for the Senate,” Latvala wrote in an email to supporters after the court called the process “tainted by unconstitutional partisan intent.”
Latvala won re-election in November 2014 for a four-year term, and he is seeking to become Senate president in 2016. But if the court rejects the Senate map, all 40 Senate districts — even those seats held by Latvala and 22 other incumbents in mid-term — could be up for re-election in 2016.
In its landmark ruling, the court invalidated the state’s congressional map after political operatives “infiltrated” the process, used fake email accounts to submit the maps as nonpartisan private citizens and created districts that found their way into the final maps approved by lawmakers. Because those actions violated the Fair Districts provisions of the state constitution, the court ordered lawmakers to redraw eight congressional districts and provided guidelines on how to do it.
House and Senate leaders have scheduled a special session Aug. 10-21 to redraw the boundary lines for the third time since 2012, but the session will not include the Senate map.
Nonetheless, questions remain about whether the congressional ruling will have an impact on a pending legal challenge to the Senate map and whether lawmakers should return in September to revise it based on the guidelines established by the court for the congressional map.
A trial over the Senate map is scheduled to begin Sept. 28 in Leon County Circuit Court in a case in which two Democrat-leaning groups, the League of Women Voters and Common Cause, argue that 28 of the 40 Senate districts were designed to favor incumbents and the Republican Party, violating the Fair Districts amendments to the state constitution.
Lawyers for the plaintiffs said they have subpoenaed several Republican senators — including Gardiner, Latvala, Don Gaetz of Niceville and David Simmons of Altamonte Springs — to testify in the case. Gardiner, Latvala and Simmons all have districts that could be altered if the court orders them to follow the guidelines established for the congressional map.
Other districts potentially affected by a new map include those of Sens. Sens. Alex Diaz de la Portilla, R-Miami; Rob Bradley, R-Fleming Island; Maria Sachs, D-Delray Beach; Jeff Brandes, R-St. Petersburg, and Darren Soto, D-Orlando. Soto has already announced he is running for Congress to replace U.S. Rep. Alan Grayson, D-Orlando.
At a July 17 hearing on the case, Judge George Reynolds suggested that the process used by lawmakers in the congressional map process could also lead the court to conclude that the Senate map was equally tainted.
“Both dishes came into the same kitchen,” he told lawyers for the House and Senate at a pre-trial hearing, “... this is a question of the unconstitutional intent — the contamination of the process.”
He urged the Legislature’s lawyers to accept that the Supreme Court has concluded that burden of proof now goes to legislators — who must demonstrate that the Senate map was not tainted — and urged them to avoid rehearing all the testimony presented in the congressional case.
“It is my request to both of you to see how much of this trial we might avoid and to just simply get to the business of looking at the map,” he said.
But lawyers for the Legislature, which has spent more than $8.1 million in legal fees defending its redistricting efforts, told Reynolds they are not prepared to accept that lawmakers were at fault in the Senate maps.
“We don’t believe the court is bound by determinations of how the district was drawn in the congressional case. This is a different case,” said Raoul Cantero, lawyer for the Senate.
Plaintiffs said that the email trail they have obtained shows that political operatives were involved in drawing at least 10 of the Senate districts that were approved by lawmakers and can show that 28 of the 40 districts should be thrown out.
“The evidence is going to show your honor that they got the most of their ideas from the political operatives,” said Thomas Zehnder, a lawyer for the plaintiffs.
Republicans lawmakers, and many of their political advisers, would not comment for this story but there is a perception among some Republicans that the Legislature should act decisively before the court does.
“I would move proactively and preemptively to get this process underway as quickly as possible,’’ said Rick Wilson, a Republican consultant who said he has not had conversations with any elected officials about redistricting. “Timing is not your friend.”
He said that if the Legislature attempts to delay a ruling, hoping to leave the Senate districts in place for the 2016 election as they successfully did with the congressional districts in 2014, the court could step in and draw the districts for them.
“I have a suspicion that the court will not buy that this time,” Wilson said.
Screven Watson, a Democratic political consultant, agrees that the court appears to be losing patience with lawmakers and said he believes the odds favor them revising the Senate map before the trial ends.
“The judge has a hammer over their head,” Watson said. “Do they risk the potential of showing they screwed this up again and have the court pick a map — take it completely out of their control — or do they redraw it and try to show they are capable of getting it right?”
Adding to tensions is the hard-fought battle over who will be Senate president in 2016. Latvala is locked in a fight with Sen. Joe Negron, R-Stuart, and any new map that brings in one or two newcomers could tilt the close race one way or the other.
Meanwhile, House leaders have indicated they have little sympathy for helping the Senate out.
“Whatever outcome or repercussion comes from the map that has to be drawn is going to happen,” Oliva said. “What is without remedy should be without regard.”
Lawyers for both sides have scheduled depositions for nearly 40 staff, legislators, political advisers and redistricting experts.
Oliva hinted that there may be more to come on the prospects of a September session to redraw the Senate map.
“As the special session draws near, we will probably have more information in regards to what will happen,” he said.
Mary Ellen Klas can be reached at meklas@MiamiHerald.com, follow her on Twitter @MaryEllenKlas