Floridas 2012 Redistricting May Be Decided By Appointed Judges Instead of Elected Officials
TALLAHASSEE Floridas once-a-decade battle over political boundary lines has made headlines and stirred controversy ever since the 2011 Legislature adjourned last May. The battle will continue during the 2012 legislative session, which convenes on January 10, but that probably wont be the end of it. Looming over the entire process is the likelihood that appointed judges, rather than elected officials, will have the final say.
Give Floridas legislative leaders credit for a gallant effort, however. They staged a series of public hearings around the state and sought an unprecedented level of input from residents. Indeed, Sen. Don Gaetz and Rep. Will Weatherford, respectively the chairmen of the Senate and House redistricting panels, developed the 100 Map Milestone, a process that enabled voters to submit their own redistricting maps. More than 1,600 testimonials were given by just under 5000 residents on a 26 city public hearing tour, and the top 157 redistricting maps were considered.
The stakes are large, with the balance of political power in Washington, D.C., potentially hanging in the balance. At present, Floridas 25-person congressional delegation includes 19 Republicans and six Democrats. Thanks to the population growth reflected in the 2010 Census, Florida was awarded two additional congressional seats. As a result, the boundary lines of every congressional district will need to be redrawn prior to the 2012 elections.
Yet congressional redistricting may not even be the bigger challenge. Because varying rates of growth in different areas have resulted in population shifts within the state, the boundaries of every single legislative district will also need to be redrawn prior to the 2012 elections. The task for legislators gets even harder when the end result may pit two colleagues against each other in a redrawn district.
Moreover, this is not the usual redistricting process. There was another development that may well alter the whole process and cause the 2012 redistricting fight to be settled by lawyers and appointed judges instead of elected officials. Last year, voters ratified two constitutional amendments that reached the ballot via the initiative petition process after a costly signature-gathering campaign funded by labor unions and other activist groups, who then funded a campaign to win voter approval.
These amendments, which appeared on the ballot as Amendments 5 and 6 under titles proclaiming them as guarantors of Fair Districts, have set hard-to-reach standards for legislative and congressional districts.
Indeed, their use of vaguely defined tests of fairness and feasibility as legal guidelines virtually guarantees that no matter how legislators handle their traditional constitutional duty of redrawing these district boundaries, the end result will face a challenge in court.
Granted, judicial review of redistricting is not unprecedented. Years ago federal judges had to intervene to force Florida lawmakers to comply with Baker v. Carr, the U.S. Supreme Courts one man, one vote decision requiring legislative districts to be essentially equal in population.
In the more recent past, judges have also tweaked the district lines drawn by legislators, drastically altering, or gerrymandering, a few precincts to comply with the federal Voting Rights Acts provisions requiring states to protect minorities right to have representation of their choice. While no reasonable person could argue against fair minority representation, the rub here lies with unelected litigants effectively determining a constitutionally mandated legislative dutyas is currently the case in the Texas redistricting process.
At any rate, heres how the process theoretically works: First, as in almost every other state, Floridas redistricting maps are drawn by the Legislature. This week the Florida Senate published its proposed redistricting planshaving been developed within multiple committee meetings and with significant input from ordinary Floridians.
Once these plans are finalized and approved, theyll be submitted to the Florida Supreme Court for validation. If the Court does not affirm these districts, then the Legislature will have 15 days to submit a new plan. If the Supreme Court rejects the second proposal, then the Court itself will determine the new districts.
For legislators, the question is whether Amendments 5 and 6 have limited their options to such a degree that a Supreme Court takeover of the process is practically a foregone conclusion.
Indeed, opponents of Amendments 5 and 6 say they suspect that the amendments language was not only devised to be vague and arguably contradictory, but it was also crafted to ensure critics a chance to file legal challenges no matter what the Legislature did.
A further complication is the issue of minority representation. According to one of Floridas Assistant Attorneys General, if the amendments are implemented as they currently stand, there is real potential to decrease the number of minority seats because some minority seats are gerrymandered.
Ironically, an organization called Fair Districts Now — a group sponsored in part by the ACLU — supported both amendments; critics allege the unstated purpose was to lay the basis for challenging a Republican controlled Legislature but that instead it will lessen minority representation.
Because of that concern, U.S. Rep. Corrine Brown, D-Jacksonville, filed a federal lawsuit alleging that Amendment 6 violates the Voting Rights Act and represents an impermissible effort by Florida to limit the discretion directly delegated by the United States Constitution to the Florida Legislature.
Representative Brown, whos an African American, currently represents a federally mandated minority-majority district. According to Pajamas Media, Ms. Browns district is the sixth most gerrymandered district in the United States.
Perhaps Representative Browns lawsuit is but a preview of things to come, when this important constitutional function redistricting will be taken out of the hands of Floridas elected officials and left to the discretion of lawyers and appointed judges.