Julie Delegal: Timing of decision not to appeal districts ruling was questionable

Judge Terry Lewis’ ruling invalidating the boundaries of two congressional districts was issued on July 10 — a Thursday. Lawmakers quietly “considered” whether to appeal on Friday.

They deliberated over the weekend, and thought some more on Monday. It turns out, as we’ll see below, that their period of deliberation may have been, well, deliberate.

On Tuesday, July 15, lawmakers announced their decision not to appeal the judge’s ruling. They decided, instead, to ask the court for clarification about when to redraw the maps. They were deeply concerned, they said, about the overseas ballots that had been sent to military personnel. That’s because they waited until those ballots were already mailed.

In a statement printed in the New York Times on Wednesday, July, 16, Florida House Speaker Will Weatherford and state Senate President Don Gaetz wrote:

“Today, we have asked Judge Lewis to clarify, as a legal and practical matter, that his decision does not affect the administration of the 2014 election[.] According to federal law, over 63,000 Florida military and overseas voters are already casting absentee ballots based on the current congressional map.”

On July 15, lawmakers expressed concern regarding ballots mailed to 63,000 Florida military personnel overseas precisely because those ballots were mailed on or about July 12.

The Supervisor of Elections website will tell you that overseas ballots are mailed 45 days before an election, in this case, the Aug. 26 primary. Get out your calendars, y’all. Count backwards.

The governor, or the state elections board, or any responsible member of the executive branch should have filed for emergency clarification immediately after the judge’s ruling. That same member of the executive branch should have notified all 67 of the state’s supervisors of elections that they were seeking an emergency clarification. The judge would have seen the problem and made the decision.

Maybe the court would have had those ballots go out anyway. Maybe not. Maybe the primary date would have been changed to accommodate the new map-drawing that lawmakers now must do.

The fact that Gaetz and Weatherford waited until those overseas ballots were in the mail before announcing that they would not appeal might be construed as further intent to flout the law.

Did they think no one would notice?

Unconstitutional items have appeared on ballots before. For example, some proposed amendments were ruled unconstitutional too close to printing time, and appeared on the ballot anyway. When that has happened, any vote for or against the amendment were considered “straw ballots.” A similar approach could be taken with the already-mailed overseas ballots that are based on unconstitutionally drawn districts.

The judge should demand that the unconstitutional districts and their nine contiguous districts be redrawn immediately, no matter how much it costs the state to reprint ballots in time for the Aug. 26 primary.

The court should order the 63,000 overseas ballots be revised and mailed again, with an explanation to those potential voters. It should further order that the overseas ballot deadline be extended to 45 days after the voting.  Under this plan, if the new ballots are sent on July 25, then the elections results could be called around Sept. 14. In order for the new, legal ballots to be easily distinguishable from the unconstitutional ones as the elections offices sort through their incoming mail, they should be clearly marked.

This is the cost of following the state and U.S. constitutions. For Gaetz and Weatherford to claim a time crunch now is disingenuous. They had plenty of time during the redistricting process after the 2010 census.

Instead, they conducted the biggest dog-and-pony show in the history of Florida, their statewide tour of redistricting hearings, only to draw an illegal map.

Julie Delegal, a University of Florida alumna, is a contributor for Folio Weekly, Jacksonville’s alternative weekly, and writes for the family business, Delegal Law Offices. She lives in Jacksonville. Column courtesy of Context Florida.