Florida’s third redistricting trial came to a close Monday, leaving the fate of the state’s 27 congressional districts in the hands of a Leon County Circuit Court judge who has less than three weeks to make a recommendation to the Florida Supreme Court.
Judge Terry Lewis will decide which of the seven maps proposed to him by the GOP-controlled House and Senate, or the variations on those maps drawn by the challengers, will emerge as the final political boundaries voters will see in the November 2016 elections.
At the core of the dispute are two questions: whether the House or Senate used the preferred approach to drawing its map and whether they both intentionally attempted to favor Republicans when they drew two districts in Miami-Dade County.
Lawmakers were handed an unprecedented set of directives in July when the Florida Supreme Court ruled that the congressional boundaries used in the 2012 and 2014 elections were invalid because lawmakers had allowed improper interference by political operatives and created congressional districts that illegally favored incumbents and political parties. The court gave them specific guidelines for redrawing eight districts and ordered Lewis to review their work and make a recommendation by Oct. 17.
When lawmakers tried and failed to resolve their differences in an August special session, the court threw it back to Lewis, who had been supervising the case that has cost taxpayers more than $8 million for the last 3 1/2 years.
The challengers, a coalition of League of Women Voters and Common Cause of Florida and a group of Democrat-leaning individuals, told the court in closing arguments that they agree with 20 of the 27 districts proposed in a staff-drawn base map but want the court to adopt their changes to the remaining districts.
Also changed is the fact that because lawmakers erred, they now have the burden of proof to show that the maps they have drawn do not violate the anti-gerrymandering provisions of the Florida Constitution and comply with the guidelines set by the Supreme Court.
The plaintiffs told the court that the Legislature has not met its burden, and the Legislature’s lawyers will argue that it has.
Both sides say Lewis’ ruling will center on District 26 in Miami-Dade County, held by Republican Congressman Carlos Curbelo. The Supreme Court ordered the Legislature to keep the City of Homestead whole and the Legislature’s solution was to create a district that performed better for Republicans by removing the black communities of Richmond Heights, Palmetto Estates and West Perrine into the neighboring District 27, now held by Republican Rep. Ileana Ros-Lehtinen.
The House and Senate contend that the only way to avoid reducing the ability of Hispanics to elect their own candidate is to leave District 26 more Republican-leaning as they have proposed. Their argument: The district is leaning Democratic and Democrats won’t elect a Hispanic candidate.
“That district is more likely — not in the future, not tomorrow but today — to elect a Democrat,” said the Senate’s lead lawyer, Rauol Cantero during closing arguments. “Why is that important? Because it won’t be an Hispanic Democrat.”
Testimony from expert witnesses, including Florida International University professor Dario Moreno, indicated that African-American and non-Hispanic white voters in the district will not create a coalition behind a Hispanic candidate.
David King, lead attorney for the League of Women Voters, disputed Moreno’s testimony that the plaintiff’s preferred map will “lock out” Hispanic voters and favor blacks or non-Hispanic whites, reducing the ability of Hispanics to elect a candidate of their choice. Florida law requires that any redistricting map not reduce minority voting strength, a concept known as retrogression.
Moreno’s testimony was “retrogression by anecdote,” said King. He “could give no example of an Hispanic in a comparable election.”
King said the plaintiffs’ configuration of District 26 results in significantly fewer cities and counties split than the Legislature’s plans and will elect a Hispanic. Testimony showed that while the Legislature’s map-drawers produced 30 drafts, it only made one attempt at drawing District 26.
George Meros, lead lawyer for the GOP-controlled House, appealed to Lewis’ stated respect for the staff map-drawers and argued the House’s decision to adhere closely to the staff-drawn map is the reason it is more politically pure because it was shielded from partisans since, unlike the Senate map, it relied on little input from legislators.
“If this court believes that these map-drawers, these individuals, came in here and lied then we lose,” Meros said. “But at the same time if this court believes that they were telling the truth, then the facts and the law show that we win.”
Cantero, lead lawyer for the Senate, told the court to pick either of its two maps but urged it to pick a Senate map because, unlike the House map, it involved legislative input.
“The House’s philosophy is you can’t make any changes to the base map once it’s drawn, and you can’t change it,” he said. “The Senate’s philosophy is you can change it. If it improves the map, we have the duty to change it.”
Lewis could approve any of the maps or, as the Supreme Court directed, choose pieces from each of them.
Perhaps the most controversial district of the entire map, the black-majority District 5 that runs east-west along the northern tier of the state, was cited by the Supreme Court as the preferred configuration even though it was proposed by the plaintiffs.
Despite arguing against it in the past, both the House and Senate adopted that district in their proposed maps, and the plaintiffs endorsed it.
But Lewis repeatedly asked staff who took the stand during the three-day hearing why nobody attempted to draw an alternative to the proposal but instead accepted it unchanged. The current District 5, held by Rep. Corrine Brown, D-Jacksonville, cuts through the heart of Central Florida.
“Look at this thing, that’s not a very compact district,” Lewis said, as the Senate’s redistricting staff director, Jay Ferrin, was on the stand.
King and Cantero both said after the hearing they do not expect Lewis to tinker with that district.
“We’re satisfied with District 5,” King said.