Less than an hour after Florida legislators opened their fourth special session on redistricting Monday, they were roiling in a bitter dispute over how far they could go to protect half the Senate from facing voters in a tumultuous presidential election year.
Just moments after the Legislature officially started its special session at noon, it became abundantly clear one major hurdle already exists as the chambers prepare to redraw Florida's 40 state Senate seats: The two chambers, dominated by Republicans, are split over who will have to run for reelection in the Senate in 2016.
The House, citing a 1982 court opinion and a ruling from the Florida Supreme Court in 2012, believes that when the Legislature redraws the district lines, every member whose district is revised will have to run for re-election in 2016. That would include as many as 14 state senators who were elected to four-year terms in 2014.
“We’ve always understood it to be everyone has to go back and run again,” House Speaker Steve Crisafulli, R-Merritt Island, told reporters.
Not so, said State Sen. Bill Galvano, R-Bradenton, chairman of the Senate Reapportionment Committee.
Galvano said that his attorneys have told him that no matter what district changes are approved in the three-week special session, only senators currently up for re-election in 2016 will have to run again — even though the districts on which they were elected have been declared unconstitutional.
"We’re in a new era,” Galvano told reporters, saying the two anti-gerrymandering Fair Districts amendment approved by voters in 2010 put Florida into new legal territory. “There is a legal argument to be made that members who were elected have a right to those seats. We are going to have to look at it in the big picture.”
Galvano, who was first elected to the Senate in 2014 to a four-year term, would be among those who would not have to seek re-election in 2016 even though every redistricting map proposed so far would have him representing thousands of people he doesn’t represent now.
We’ve always understood it to be everyone has to go back and run again.
House Speaker Steve Crisafulli
Galvano and Senate attorneys agreed in July that the Senate map used in 2012 and 2014 violated the Fair Districts amendments, which banned lawmakers from drawing seats to intentionally favor incumbents or political parties.
They agreed that the 2012 map should be invalidated, no longer serve as a benchmark for redrawing a new map, and that they would convene a special session to enact a new Senate map. But Galvano said they don’t agree that those elected because of the 2012 map should have to start over.
"We are balancing between the rights of the members and the rights of the people who elected those members,’’ he said. “It is a supportable legal argument. We are not going to have every member running again.”
The argument drew immediate fire from Democratic senators and one outspoken Republican.
“You have to start from scratch” and jettison the 2012 map, four-year terms and all, said Sen. Tom Lee, R-Brandon, a former Senate president who was not in office when the maps were initially approved. “I wasn’t here when all these infirmities were created and I’m tired of losing. So let’s get out of denial. Let’s get our head out of the sand and let’s just admit the reality."
Lee’s comments came after the House and Senate met in a joint meeting to review six proposed maps drafted by staff to redraw Senate boundaries.
The proposals are rife with problems for many senators. In most of them, incumbent senators are pitted against other incumbents and all of them fail to address the concerns of the Florida Supreme Court and the challengers who successfully invalidated the Senate map. They have warned that an African-American-based district in Hillsborough County should not cross Tampa Bay.
Some redistricting experts say it is not necessary to draw a district that preserves the minority voting clout in the current District 19, now held by Sen. Arthenia Joyner, D-Tampa.
Matt Isbell of MCI maps, who advises Democrats, said because the redistricting software legislators are using was not updated to include the primary data from 2012 — when the Obama campaign increased the minority voting population — legislators can’t justify drawing a Hillsborough County-based black district.
But if the data was included, the analysis would show there are enough African American voters in Hillsborough County to draw a minority district without crossing Tampa Bay.
Sen. Oscar Braynon, D-Miami Lakes, asked Senate Reapportionment Committee staff director Jay Ferrin why, after four years, the staff hadn’t included the primary data in the redistricting software to help analyze how the districts in the state would perform in Democrat-dominated primaries dominated by black voters.
Ferrin such an update would take “hundreds of hours” and require the state to "get the data from all the supervisors" and then “translate in the census blocks to run the analysis.”
The mapping software, however, does include primary data for 2010 and general election data for 2012 and 2014. The 2012 primary data is also readily available on the state’s Division of Elections website.
The disagreement over who will face re-election comes a month after a special session to redraw congressional districts lines ended without the House and Senate agreeing on a single map, forcing the courts to step in. And, earlier this year, the Legislature had to meet in a special session to complete the budget, after the House abruptly walked out days before the regular spring session was scheduled to end.
Braynon said he believes Senate leaders also may be pursuing the long-shot argument to keep certain senators from running in a presidential election year — in violation of the ban on protecting incumbents, he said.
“When there's a larger turnout, it's a Democratic turnout,” said Braynon, one of the 14 incumbent senators who would see their re-elections moved up to 2016 from 2018.
Lee suggested that Senate leaders now don’t “want to deliver the bad news’’ to senators who could face a tough re-election in swing districts, and instead are holding out for the court to do it.
Senate Democrats warned that allowing senators to serve people who have never elected them will run afoul of the federal legal precedent established in the case of Baker v. Carr, which requires that districts be drawn based on one-person, one-vote and contradicts a1982 Florida Supreme Court ruling that said that a senator’s term ends when his Senate district is revised by reapportionment.
“Because the new plan alters all district lines and the constituency therein, elections must be held in all senate districts in 1982,”' the court ruled.
The dispute was foreshadowed last week during a heated 10-minute exchange between lawyers representing the House and the Senate.
Map drawers and lawyers for both the Senate and the House met Wednesday in a closed door session to finalize the six proposed maps that were released to the public on Thursday. Tapes of that meeting have been subsequently made available to the public.
During the meeting, Senate General Counsel George Levesque proposed numbering Senate districts so they correspond with in the current map. Though he didn’t state it directly, the implication was that senators in odd-numbered districts would have to run for re-election in 2016, while even numbered districts would not have to run for re-election until 2018.
The idea runs contrary to the House’s assertion that all 40 Senate districts will be on the ballot in 2016 because of the redistricting. Levesque said by keeping the numbering close to the current one, it assures that they are not “going to put people in a situation where there is greater uncertainty whether they’re in office or not.”
House attorney George Meros objected, saying the decision is best left to the Legislature. Levesque protested and warned that if the districts were not numbered correctly, he would have senators convinced that the “House was doing something to screw the Senate.”
He added that without the numbering adjusted, it “makes this infinitely harder.”
Meros objected and they agreed to use a random numbering system on the draft maps, leaving the final decision on who runs and when to the Legislature.
House Redistricting Chairman Jose Oliva said it’s possible that the issue could result in an impasse between the House and Senate but is willing to hear their legal argument.
“We’re under the understanding that all members whose district change must run again,” he said.
Mary Ellen Klas can be reached at email@example.com and at (850)222-3095. Follow her on Twitter @MaryEllenKlas
Michael Auslen of the Tampa Bay Times contributed to this report.