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Highlights of the Supreme Court ruling on redistricting

Here are some highlights of the Florida Supreme Court ruling today rejecting the Legislature's Senate map and validating the House map:

The court has a different role in redistricting than for ordinary legislative acts:

"Even though we continue to recognize the presumption of validity that governs ordinary legislative acts, the operation of this Court‘s process in apportionment cases is far different than the Court‘s review of ordinary legislative acts, and it includes a commensurate difference in our obligations. Challenges to the constitutionality of ordinary legislative acts passed by the Legislature must be brought in a trial court and then reviewed by a district court of appeal. This Court has mandatory jurisdiction in those circumstances only if the legislative act is found to be unconstitutional."

"The new requirements dramatically alter the landscape with respect to redistricting by prohibiting practices that have been acceptable in the past, such as crafting a plan or district with the intent to favor a political party or an incumbent. By virtue of these additional constitutional requirements, the parameters of the Legislature‘s responsibilities under the Florida Constitution, and therefore this Court‘s scope of review, have plainly increased, requiring a commensurately more expanded judicial analysis of legislative compliance."

Rubber-stamping the legislative maps would be abdication of their role:

"Where the legislative decision runs afoul of constitutional mandates, this Court has a constitutional obligation to invalidate the apportionment plan. To accept the Legislature‘s assurances that it followed the law without any type of inquiry or any type of meaningful review by this Court would render the Court‘s review of the new constitutional standards, and whether the Legislature complied with the new standards, essentially meaningless. To accept the Legislature‘s and Attorney General‘s position that this Court should not undertake a meaningful review of compliance with the new constitutional standards in this proceeding, but instead await challenges brought in trial courts over a period of time, would be an abdication of this Court‘s responsibility under the Florida Constitution."

The acquired Maptitude software and used House and Senate data exclusively:

"In performing its objective analysis of the data, the Court did not rely on the figures or statistical analysis contained in the appendices filed by the FDP or the Coalition. Instead, the Court utilized the MyDistrictBuilder and District Builder software applications to evaluate the Legislature‘s apportionment plans and the Coalition‘s alternative plans."

The court rejects the argument that the court cannot determine if the Legislature had improper intent to favor incumbents:

“While we agree that the standard does not prohibit political effect, the effects of the plan, the shape of district lines, and the demographics of an area are all factors that serve as objective indicators of intent… One piece of evidence in isolation may not indicate intent, but a review of all of the evidence together may lead this Court to the conclusion that the plan was drawn for a prohibited purpose.”

The court reviewed the shapes of districts together with “undisputed objective data” relating to voter registration and elections and incumbent addresses to determine of the Legislature intended to favor incumbents:

“However, where the shape of a district in relation to the demographics is so highly irregular and without justification that it cannot be rationally understood as anything other than an effort to favor or disfavor a political party, improper intent may be inferred…. We note that the Court has access to the same voter registration and election data used by the House in its redistricting software.”

The court concluded the Senate violated the intent standard when it determined that specific districts violated the two-tier standards:

“…the fact that the Senate or House, or their staff, may or may not have had the incumbents‘ addresses is not determinative of intent or lack of intent. And, as discussed in the challenges section below, the fact that there were more registered Democrats than registered Republicans in this state, but that there are more Republican-performing districts than Democratic-performing districts in both the newly drawn Senate and House plans, does not permit a conclusion of unlawful intent in this case. Rather, when the Court analyzes the tier-two standards and determines that specific districts violate those standards without any other permissible justification, impermissible intent may be inferred.”

The argument used by House and Senate leaders that the new constitutional standards required the state to adhere to virtually the same minority districts as before was also rejected by the court.

"We nonetheless conclude that under Florida‘s provision, a slight change in percentage of the minority group‘s population in a given district does not necessarily have a cognizable effect on a minority group‘s ability to elect its preferred candidate of choice. This is because a minority group‘s ability to elect a candidate of choice depends upon more than just population figures.

"...Because a minority group‘s ability to elect a candidate of choice depends upon more than just population figures, we reject any argument that the minority population percentage in each district as of 2002 is somehow fixed to an absolute number under Florida‘s minority protection provision. To hold otherwise would run the risk of permitting the Legislature to engage in racial gerrymandering to avoid diminishment.”

  “…it is critical that the requirement to protect minority voting rights when drawing district lines should not be used as a shield against complying with Florida‘s other important constitutional imperatives.”

The court agrees that the requirement that the entire state follow the federal Voting Rights Act requirements prohibiting retrogression – when minority voters have less of a chance to elect their candidates instead of more of a chance.

“Florida‘s new constitutional provision, however, codified the non-retrogression principle of Section 5 and has now extended it statewide. In other words, Florida now has a statewide non-retrogression requirement independent of Section 5.

The court rejects the opponents’ argument that the House intended to protect incumbents and packed minorities into districts and concludes there is no retrogression. It even concluded that in South Florida the House map makes “wide-sweeping changes.”

“While we recognize that the new districts on average retain 59.7% of the population of their predecessor districts, this fact standing alone does not demonstrate intent to favor incumbents… Under the House plan, there are twelve black majority-minority districts37 and sixteen Hispanic majority-minority districts.38 None of the black majority-minority districts is a super-majority district requiring the Legislature to ―unpack‖ it on this record.”

The Senate map “is rife with objective indicators of improper intent which, when considered in isolation do not amount to improper intent, but when viewed cumulatively demonstrate a clear pattern.”

The court concluded that the Senate’s decision to renumber districts, giving some members longer terms than others under term limits, was “improper as it was intended to favor incumbents, but we note that the renumbering process indicates that the Senate specifically considered incumbent information when renumbering the districts.”

In both the House and Senate maps, the court rejected the argument by opponents that the partisan balance of the maps was evidence of intent but it slammed the Senate for allowing Republican performing districts to include fewer people.

“Under-populated districts are comparatively over-represented. Thus, it appears that under the Senate plan, individuals residing in Republican-performing districts are over-represented as compared to individuals living in Democratic-performing districts.”

The court left to a trial court the prospect that the Senate plan could be viewed to be retrogressive but said that it could not determine that.

“No opponent has demonstrated that the Senate plan facially dilutes minority voting strength as a whole under the Florida Constitution… While the Court does not rule out the potential that a violation of the Florida minority voting protection provision could be established by a pattern of overpacking minorities into districts where other coalition or influence districts could be created, this Court is unable to make such a determination on this record.”

“As a result, the Senate did not properly consider when tier-two requirements must yield in order to avoid conflict with Florida‘s minority voting protection provision.”

 The Senate’s attempt to re-number districts “ were assigned with the intent to favor incumbents.

  "We can verify that at least the 16 senators that were previously eligible for eight years will now be eligible to serve a maximum of ten years, and the three incumbents originally eligible for nine years will be eligible to serve for eleven years.44 None of the senators for whom this Court was provided addresses will be limited to a maximum of eight years under the new numbering scheme."

The court said the Senate violated the standards by dividing the Senate districts now held by Sens. Don Gaetz and Greg Evers over five counties and allows each of them to keep the majority of their current districts.

“Because there is no constitutionally valid justification for the deviation from the constitutional standards, we are obligated to declare these districts invalid.”

Districts 6, Audry Gibson’s Jacksonville-based district, “violates constitutional mandates by sacrificing compactness and utilizing boundaries when not necessary to do so to avoid conflict with the minority voting protection provision.” And the adjoining District 9, now held by Sen. John Thrasher was equally not compact. The court then pointed to the alterantiave map drawn by the Fair Districts Coalition as a better alternative.

The court also agreed with the opponents that District 10, allegedly designed to favor Sen. Andy Gardiner, R-Orlando.

"Based on the objective data before this Court, we conclude that District 10 violates constitutional mandates because it is visually non-compact with an appendage that reaches out to clearly encompass an incumbent, and this bizarre shape cannot be justified based on concerns pertaining to ensuring minority voting strength.”

The court also rejected proposed Senate district 30, now held by Sen. Gerald Richter, R-Naples; Districts 34, now held by Sen. Chris Smith, and District 29, now held by Sen. Ellyn Bogdanoff, and cited the coalition’s alternative map as a more compact alternative.

“We conclude that both districts are constitutionally invalid because they are not compact, do not utilize political and geographical boundaries where feasible, and appear to have been drawn with the intent to favor an incumbent and a political party." 

“We conclude that the Senate‘s decision to draw this region in a less compact manner is indicative of intent to favor an incumbent and a political party by keeping District 29 essentially the same as its predecessor district. Further, in drawing this area of the state, the Senate violated the compactness requirement by simply keeping the cores of the previously existing districts without performing a functional analysis and endeavoring to draw compact districts that also adhere to Florida‘s minority voting protection provision."

Chief Justice Charles Canady accused the majority of abrogating its responsibility:

"With today‘s decision, the majority of this Court effectively abrogates these precedents that recognized the circumscribed nature of the thirty-day review process under article III, section 16, and the presumption of constitutionality with which a legislative redistricting plan is clothed. The Court has now transformed the nature of the constitutional review process and cast aside the presumption of constitutionality.

"...Based on nothing more than suspicion and surmise, the majority concludes that certain district lines were drawn with improper intent—when there is an evident, rational, permissible basis for the drawing of those lines. The majority fails to recognize the structural limitations of our review process, which preclude the adjudication of fact-intensive claims."

Justice Charles Perry blasted the Senate:

 “The appearance of impropriety is as bad as impropriety itself...It concerns me that under the guise of minority protection, there is—at the very least— an appearance that the redistricting process sought to silence the very representatives of the people the Legislature indicates it is trying to protect.

"I cannot agree that there was a rational basis for the Senate to decide to turn a blind eye to population data when drawing their plan. By refusing any attempt to draw more compact districts while maintaining the required racial proportions, there is at least the appearance that the Senate thumbed its nose at the will of the people."