July 11, 2014

Redistricting ruling could mean big change, or status quo

With questions looming, the judge in the redistricting case will be asked to decide how he wants legislators to repair the congressional districts he has ruled invalid.

TALLAHASSEE The court ruling that invalidated Florida’s congressional districts this week will give voters in November’s elections something they are used to: uncertainty.

Leon County Circuit Court Judge Terry Lewis rejected the Legislature’s 2012 congressional map and specifically ordered two of the state’s 27 districts redrawn to comply with the state’s Fair Districts constitutional amendment.

U.S. Rep. Corrine Brown, a Jacksonville Democrat, should see her sprawling district become more compact and follow traditional political boundaries, Lewis ruled. And U.S. Rep. Dan Webster, a Winter Garden Republican, should have his Orlando-based district revamped to eliminate the partisan advantage that came when lawmakers swapped out Hispanic Democrats for white Republicans.

Among the harsh criticism Lewis directed at the Republican-controlled Legislature was that they allowed “improper partisan intent” to infiltrate the redistricting process and seemingly ignored evidence that partisan political operatives were “making a mockery” out of their attempts to conduct themselves with transparency.

Lewis also retained jurisdiction over the case, meaning any remedy will have to be approved by him. How and when that happens is not clear and Lewis did not give any guidance.

Republicans uniformly said Friday that they are reviewing the ruling and won’t comment. Privately, some suggest that the remedy is simple — the Legislature need only adopt a previous version of the congressional map and be done.

But lawyers for the coalition led by the League of Women Voters that brought the legal challenge disagree.

Lewis ruled that Brown’s entire district was non-compliant, said David King, lead lawyer for the plaintiff, and that requires the district be completely revised, and all adjacent districts as well.

“He did not hold that the serpentine configuration of it is compliant and he didn’t endorse the prior draft maps,” King said. The district was created “as part of their strategy of having just a few really strong Democratic districts, which had the effect of bleaching out the Democrats from the surrounding districts.”

The plaintiffs plan to ask Lewis next week to set guidelines for how the Legislature should fix the maps, King said.

Lewis “held the maps unconstitutional, and you're not supposed to have elections under an unconstitutional map,” King said.

Meanwhile, both Lewis and the plaintiffs have said they expect the Legislature to appeal his ruling, potentially as high as the Florida Supreme Court. But the state’s high court has four times ruled in favor of the plaintiffs, and has a pending case before it about whether emails and documents of GOP political operative Pat Bainter should be allowed into the court record.

Legal scholars say one of three things is likely going forward:

• The judge orders the Legislature to redraw the maps,
• The court asks for submissions from the parties and chooses among them, and
• The court retains a special master to draw the maps.

“The one thing that is extremely unlikely is a change to the district lines for this November’s elections,” said Justin Levitt, a professor at Loyola Law School in Los Angeles who runs the site All About Redistricting.

The court could order a special election just for the congressional districts, but absentee ballots must be in the mail July 12 and any attempt to rearrange the elections dates for congressional elections alone “would really make things a bit of a mess,” he said.

It would require new maps to be developed “faster than anything that’s happened in the state so far,” Levitt said, and “anyone that knows elections in Florida knows not to provoke additional complications.”

Jon Mills, a former House speaker and constitutional lawyer who represented the League of Women Voters in defending the constitutionality of the amendments, said the new districts could be drawn before the election if the Legislature agrees they are in violation and decides to redraft them.

“They could do that pretty quickly,” he said. But, he agreed: “It’s difficult to imagine this being done before the election.”

Florida has some precedent for having the courts interfere with elections because of redistricting. In 1992, a federal court rejected the state's redistricting map and drew its own in time for the elections. The U.S. Supreme Court overturned that map, and called for candidates to re-qualify under the Legislature's original plan.

Other states that have had a court invalidate a redistricting map have had elections and primaries delayed, even after candidates have qualified. Texas, for example, had its primary delayed in 2012 and is operating on interim congressional maps adopted through a compromise after a court invalidated the plan in 2011.

Once the election takes place in November, there is also little precedent that courts will call for another election after new maps are drawn.

“The folks elected in 2014 are probably elected for the current map and hold their seats for the next two years,” Levitt said.

Facing all this uncertainty doesn’t please Brown, who teamed up with Republicans in the early 1990s to carve out a heavily African-American district.

“The decision by Judge Lewis is seriously flawed,” she said in a statement. “It completely fails to take into consideration the rights of minority voters or to recognize federal law, specifically the 1964 Voting Rights Act, which protects minority voting rights and clearly supersedes the state’s Fair Districts standards.”

Brown is running for a 14th term in Congress and faces two nominal opponents, both Republicans, in the heavily Democratic district. She said that overturning the current District 5 “ignores the essential redistricting principle of maintaining communities of interest or minority-access districts.

“Certainly, minority communities do not live in compact, cookie-cutter like neighborhoods, and excessive adherence to district ‘compactness,’ while ignoring the maintenance of minority access districts, fragments minority communities across the state,” she said.

But King said the goal of the plaintiffs is not to diminish the ability of Brown’s district to elect a minority candidate of its choice. He said a new disctrict can be drawn “with far less numbers of minorities of voting age than what the Legislature crammed in there.”

In 2012, Webster faced one of the most challenging reelection bids of his career when former Orlando Police Chief Val Demings, a Democrat, ran against him. This year, he faces three Democrats and a write-in candidate in the district the judge ruled was designed to favor him.

Webster, like other Republicans, has refused to comment on the ruling.

"We’re just going to see what happens,” said Susan Hepworth, communications director for the Republican Party of Florida.

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