Bob Sparks
The Florida Supreme Court has the final say in all things concerning the Florida Constitution. They determine, among other things, whether actions taken by the legislative and executive branch are compliant with the constitution.
When it comes to redistricting, they have assumed the lead role in the process. No one, other than a fellow justice, has the clout to tell them they might be exceeding their authority.
The redistricting process resumes on Aug. 10. On that day, legislators, staff, and probably a media outlet or two will gather at the Capitol. The special session amounts to Take 3 by the legislative branch to draw maps for 29 congressional districts that will pass muster with the judicial branch.
The first attempt was called a “mockery” by 2nd Circuit Judge Terry Lewis as he declared two districts unconstitutional. He later approved a legislative mulligan, but the Florida Supreme Court basically told Lewis he did not know what he was doing.
In a 110-page opinion issued July 9, the court reversed Lewis by a 5-2 margin. The majority held his approval of the new and improved Congressional Districts 5 and 10, represented by Democrat Corrine Brown and Republican Daniel Webster, respectively, fell far short of what was needed.
Instead, the Supremes found eight districts outside the mandates of the Fair Districts Amendment and Article III, Section 20 of the Florida Constitution. Their term of art was the “unconstitutional intent” of the Legislature.
Brown’s District 5 is neither “compact” nor “utilizes existing political and geographical boundaries” as the constitution now requires after Fair Districts was passed by voters. Some describe it as “serpentine” or a “spider web.” Others called it a political Rorschach test.
In fairness, the Legislature must also follow a constitutional requirement to provide “equal opportunity of racial and language minorities to participate in the political process … and elect representatives of their choice.” This reason is often cited by defenders of districts such as Brown’s.
Where Lewis went wrong, according to the court, was the judicial branch (Lewis) giving deference to the legislative branch in matters reserved for the legislative branch (emphasis added). By not sufficiently focusing on “unconstitutional intent” in other districts, the court held Lewis permitted the Legislature to get away with far more egregious conduct than he found.
The judge goofed, according to the opinion written by Justice Barbara Pariente, by relying “solely on objective ‘tier two’ constitutional indicators, such as compactness and the use of political or geographical boundaries, rather than on direct and circumstantial evidence of ‘tier one’ unconstitutional intent presented at trial.”
Translated, this means incumbent protection for Brown and others. How was Judge Lewis supposed to determine “intent”? He can’t.
According to the majority, the “burden should have been placed on the Legislature to demonstrate that its decision to choose one compact district over another compact district … was not motivated by this improper intent,” the majority wrote.
For all of us non-lawyers, this seems to mean Lewis should have required the accused to prove their innocence.
By this ruling, Lewis will have no choice but to lift the burden of proof from the “challengers,” as the court calls them. Not stopping there, the court also left instructions on how the Legislature must draw the lines.
With those instructions, Brown’s constituents could soon stretch from Jacksonville to Tallahassee and even all of Gadsden County to the west. Such artistry would redistribute a large swath of Democratic voters from U.S. Rep. Gwen Graham’s district to Brown’s.
Justice Charles Canady was having none of it. His 20 pages of fiery dissent are summed up by his contention the majority engaged in “an extreme distortion of the appellate process deployed to effect a serious violation of the separation of powers.”
Separated or not, dissents have no force in law. The bottom line is the Supreme Court has taken over.
After Gov. Rick Scott signs the new districts into law, a trial is set for Sept. 22-25. The Supreme Court will be closely watching as evidenced by its requirement that all trial court filings shall “simultaneously be submitted to this court.”
After the trial, ruling, and Supreme Court review, we could be well into October before some form of finality is achieved. Some surprises are likely in store as some of the legal and political dominoes start to fall.
Bob Sparks is a business and political consultant based in Tallahassee.
