State Politics

Legislature tries to turn the tables on judges in redistricting cases

Margaret Delmont looks over a congressional district map during a redistricting hearing at Broward College on August 16, 2011.
Margaret Delmont looks over a congressional district map during a redistricting hearing at Broward College on August 16, 2011. Sun Sentinel

In an aggressive attempt to weaken the Fair Districts amendments to the Florida Constitution, a House committee on Wednesday passed legislation to create new hurdles to legal challenges to the maps that lawmakers draw.

The House Public Integrity and Ethics Committee voted 14-3 to change the implementation of the anti-gerrymandering provisions of the Constitution, which subjected the Republican-led Legislature to years of litigation and an embarrassing admission that they intentionally drew districts that favored incumbents and parties in violation of the law. Three Democrats joined with Republicans to support the bill and three Democrats opposed.

Under the amendment added to HB 953 by Rep. Larry Ahern, R-Seminole, any challenges to a redistricting map would have to occur within 60 days after the maps are passed, effectively short-circuiting the time for challengers to obtain records and documents to prepare a case.

The bill also suspends any litigation that occurs 71 days before candidates qualify for election and freezes the districts in place until after the election. And, in an attempt to turn the tables on the judiciary if it must resolve a dispute over the maps, the bill subjects judges to cross-examination.

It seems to me this is a little bit of a poke in the eye to the courts for the 2015 actions where they decided to draw the maps.

Rep. David Richardson, D-Miami Beach

The bill comes after four tumultuous years of redistricting battles that cost taxpayers over $11 million, led to four trials, three special sessions and eight rulings from the Florida Supreme Court. At the core of the dispute was the Legislature’s implementation of the Fair Districts amendment to the Florida Constitution, which for the first time required that lawmakers draw political boundaries without the intent to favor incumbents or political parties. The litigation also forced lawmakers to testify under oath about their legislative intent, for the first time in state history.

Ahern said the bill is “intended to provide clarity in the way we conduct elections,” but opponents, including the coalition of groups led by the League of Women Voters, said the bill would have prevented them from uncovering the Republicans’ conspiracy to draw districts that gave incumbents the advantage.

“It seems to me this is a little bit of a poke in the eye to the courts for the 2015 actions where they decided to draw the maps,” said Rep. David Richardson, D-Miami Beach, who voted against the bill on Wednesday. He said he fears the proposal will be deemed unconstitutional for infringing on judicial immunity and violating the separation of powers.

The proposed changes are “a blatant effort to write the Fair Districts Amendments out of the Constitution and permit the sort of gerrymandering that Florida’s citizens have overwhelmingly forbidden,” said Thomas Zehnder, attorney for the Fair Districts Coalition.

The coalition first challenged the congressional maps used to elect 27 lawmakers to Congress in 2012 and 2014, saying the Legislature violated the Fair Districts amendments when it allowed improper interference by political operatives. Legislators met in special session and could not agree on a congressional map, so the burden fell to the Circuit Court of Leon County, where Judge Terry Lewis sought submissions of maps from the parties. He ultimately rejected two maps submitted by the Legislature and recommended a map proposed by the coalition.

The coalition also challenged the Senate map and uncovered evidence that showed that in 2012, Republican operatives faked “public” submissions, possessed draft Senate maps more than a month before senators, and submitted Republican-leaning maps that matched pieces that became the foundation of the adopted Senate redistricting plan.

After those discoveries, the Senate agreed to abandon the map it had used to elect senators in 2012 and 2014. The Legislature tried again and failed to agree to a map but, when they failed, it was left to the courts to resolve the matter.

Justices Charles Canady and Ricky Polston, who wrote dissenting opinions, argued that the court’s rejection of the maps moved the “goalposts” on the Legislature in its redrawing of the districts. Justice Barbara Pariente, who authored the landmark ruling in the congressional case, disagreed:

“The goal has not changed and has always been in compliance with the Fair Districts Amendment,” Pariente wrote for the majority. “At this stage, after a finding that the 2012 congressional redistricting plan had been drawn with improper intent, the Legislature bears the burden of justifying its redrawn configurations. The Legislature did not escape this burden when it was unable to agree on a plan to enact and subsequently asked all parties to submit alternative plans to the trial court.”

Don Rubottom, staff director of the House Public Integrity and Ethics Committee, explained “until the Fair Districts amendments were passed, a legislator was never subject to examination in court as to their individual intent on legislation. So this changed the Constitution.”

The goal of Ahern’s proposal, Rubottom said, is “if they will continue to cross-examine legislators under these provisions, then anybody else who is drawing the map that is likely to become law should be subject to the same examination on the same constitutional intent basis,” he said, noting that that examination should also apply to judges.

Zehnder, the coalition’s attorney, responded in a statement that the concept of subjecting the court to cross-examination “is an assault on the independence of the judiciary.”

“The court is not a litigant,” he said. “The court is charged with the responsibility of determining what district configurations most faithfully comply with the constitutional requirements.”

If the court were to draw a map and the parties in the case did not agree, “the legal remedy would be to take an appeal, not to subject the judge to cross-examination,” Zehnder said. “Attempting to have a judge be both a neutral decision-maker and a fact witness subject to cross-examination is unprecedented, unworkable and smacks of retaliation.”   

Ahern denied that the bill removes the incentive to follow the anti-gerrymandering rules of the Fair Districts amendments but instead said it “enhances it so that we get it done as a priority and we don’t have uncertainty when folks go to vote under the new districts that are being drawn.”

House Rules Chair, Rep. Jose Oliva, R-Miami, said that the Legislature should never have ended up in court on the redistricting maps but the legislature's "wrong doing doesn't excuse the wrongdoing of the court."

"The court, which is tremendously biased, took this biased and spiteful approach during the process,'' he said Wednesday. "They overstepped their bounds. They had no concern for the separation of powers and they literally took a map from a group of people who testified that they had connections to all sorts of political organizations. How is that okay?"

Two of the freshmen on the House committee, who were not in office during the redistricting fight, argued that the courts drew the districts, even though the court sought submissions from the parties and chose versions of the plaintiffs’ map and did not actually “draw” the districts.

Rep. Thomas Leek, a Republican lawyer from Daytona Beach, said he supported the amendment because “what happened in 2015 was that the court exercised an extraordinary exercise of power. In doing so, in drafting and coming up with those districts, they switched roles into a quasi — no less — quasi-legislative function.”

Ahern concluded that the bill is “really an only-if-necessary bill” and is “not changing in any way, shape or form how it applies to Fair Districts.”

Here is how they voted:

Voting for the bill: Reps. Larry Ahern, R-Seminole, Jason Brodeur, R-Sanford, Cord Byrd, R-Jacksonville Beach, Charles Clemons, Sr., R-Jonesville, Kimberly Daniels, D-Jacksonville, Tracie Davis, D-Jacksonville, Randy Fine, R-Palm Beach, Jason Fischer, R-Jacksonville, Thomas Leek, R-Daytona Beach, Sharon Pritchett, D-Miramar, Jake Raburn, R-Valrico, Jennifer Sullivan, R-Eustis, Clay Yarborough, R-Jacksonville, Larry Metz, R-Groveland

Voting against the bill: Reps. Amy Mercado, D-Orlando, David Richardson, D-Miami Beach, Emily Slosberg, D-Delray Beach.

Update: This story has been updated to include the vote count. A previous version incorrectly reported the vote was along party lines.

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Mary Ellen Klas: and @MaryEllenKlas