Les Neuhaus
Legislation intended as a “what if’ scenario for potential snags in future political redistricting received a fair amount of blowback from several House committee members.
Nevertheless, the House Public Integrity and Ethics Committee passed the bill Wednesday.
HB 953, sponsored by Rep. Larry Ahern, received a thorough level of skepticism and interrogation due to a knee-jerk reaction to the proposal’s context: legislative redistricting and Congressional reapportionment.
“It really just asks the courts to speed up the process as the law would allow us to do …,” Ahern explained.
In 2015, controversy swirled around the remapping of the state’s districts, which were ultimately redrawn by a court.
Ahern’s bill would require a court to provide for an expedited hearing and ruling in a scenario in which a challenge to the state’s legislative or congressional district boundaries was to be brought forth.
According to Ahern, his bill “attempts to provide clarity regarding, which legislative and congressional maps must be used when redistricting challenges are unresolved and upcoming elections are imminent,” he said.
“The bill also encourages the courts to set immediate hearings and act as expeditiously as possible to resolve any challenges to legislative or congressional districts. In addition, the bill encourages the courts to follow a standard procedure to help maintain transparency and public oversight to the drafting of a remedial redistricting map.”
The bill would also establish a deadline for resolving potential legislative and congressional challenges.
Ahern continued: “For legislative challenges, the bill states that if revisions are ordered after the 71st day before the upcoming primary election, those revisions will not take effect until the next future election. For congressional challenges of revisions are ordered after noon 116 days before a primary election, then a congressional candidate must requalify in accordance with the revised districts during the qualifying period that begins 71 days before the primary election. The bill also states that its provisions do not supersede or impair the state constitutional provisions governing the judicial review of apportionment.”
The comment drew a host of quirky faces. The floor was opened to debate after a member of the public, Ben Wilcox of Common Cause Florida, took the podium.
“We just don’t really understand why this bill is needed,” Wilcox said to the committee. “Case law was evident when we went through redistricting in the last round. It was pretty clear and seemed like it worked.”
Rep. David Richardson backed up the sentiment, asking what the impetus was for the proposal.
“Help me understand — what’s the reason that we need to do this, what’s the urgent need?” Richardson asked.
Ahern said: “I think it’s a result of the lessons learned from the previous election where it went on in the Senate in additional time, and years, as it were, and that again the people deserve more certainty when and with who they will be voting within their districts … and really this just says to the courts, and to those who might bring (a law) suit they need to do so quickly in order to resolve it before the qualifying period … and really just says, ‘After the qualifying period everything will be suspended,’ and that’s not clear right now, obviously, since they continue to go into more litigation after that.” “This makes it clear that won’t happen.”
“This makes it clear that won’t happen,” he added.
After 30 more minutes of debate, the vote was taken and voted favorably 10-3.
The bill has two more committees to move through before being heard on the House floor.
Fair Districts Coalition attorney Thomas Zehnder issued a six-point response Wednesday afternoon to the proposed strike-all amendment on the HB 953 redistricting bill:
(1) The attempt to preclude further review of legislative districts after the Art. III, Sec 16 expedited facial review process is a blatant effort to write the FairDistricts Amendments out of the constitution and permit the sort of gerrymandering that Florida’s citizens have overwhelmingly forbidden. If the process of reviewing legislative districts had been shut down after the initial Florida Supreme Court review of the 2012 maps, the Legislature would have gotten away with its conspiracy. There is no discovery in the Supreme Court, and the challengers and Court were left to rely on the sanitized public record. As a result, the Legislature slipped by with its assurances of an open and transparent process. If that was the end of the process, the conspiracy would not have been uncovered, and the public would be left with gerrymandered legislative districts for a decade without any avenue of recourse.
(2) The 60-day limitation period is unreasonably short, is a bald effort to avoid scrutiny, and it infringes on the public’s right of access to the courts. As the 2012 litigation shows, it often takes time to uncover improper conduct over the opposition of legislators and consultants. A 60-day limit creates an incentive for legislature to stonewall discovery and delay handing over public records to “run out the clock.”
(3) The proposed bill runs afoul of Florida Supreme Court precedent recognizing the right of litigants to bring fact-based challenges. In Apportionment III, the Court ruled that the constitutional framework envisions trial courts being open to fact-based challenges that cannot be properly resolved in an Art. III, Sec 16 facial review that does not have the benefit of discovery.
(4) The proposed bill would infringe on the Florida Supreme Court’s exclusive authority over practice and procedure, including by requiring courts to consolidate proceedings.
(5) The automatic stay provision is an unconstitutional attempt to close access to courts. The stay process would effectively give the legislature at least one “free” election under unconstitutional maps if election deadlines adopted by the legislature cannot be met. It should be left to the judiciary — not the self-interested legislature — to decide whether elections should proceed under old or new maps and to adjust statutory deadlines as necessary to comply with constitutional mandates.
(6) The provision requiring cross-examination of judges/justices is an assault on the independence of the judiciary. The 2012 litigation was an open and fair proceeding. 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. It is also an infringement on the judiciary’s authority over practice and procedure.
