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From the staff of the Tampa Bay Times

Shadowy conspiracies and charges of improper intent fly in latest redistricting docs

27

November

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The knock-down fight over the political future of the Florida Senate entered its third round this week as lawyers for the coalition of voting groups accused Republican lawmakers of conspiring again to protect incumbents, while the Legislature’s lawyers accused opponents of “operating in the shadows” trying to advantage Democrats.

The Senate’s map “smacks of partisan intent” because it failed to maximize population and respect political boundaries, “while offering unmistakable benefits for the Republican Party and incumbents,’’ wrote the lawyers for the coalition plaintiffs, led by the League of Women Voters and Common Cause of Florida.

But the lawyers for the Republican-led Senate and House blasted the plaintiffs for relying on map drawing experts who had ties to Democrats and therefore drew maps that “systematically” benefited Democrats.

The sparring legal briefs, filed late in the evening on Wednesday, offer a glimpse into the arguments in the Senate redistricting trial scheduled Dec. 14-18, before Leon County Circuit Court Judge George Reynolds.

Lawmakers tried and failed to adopt a Senate map for the 2016 elections during a three-week special session that ended early this month so the job was handed to Reynolds who has asked each side to present alternative maps.

The coalition named the incumbents they believed were protected by the proposed Senate map -- from Miami Sens. Anitere Flores and Miguel Diaz de la Portilla, to Panhandle Sen. Greg Evers and Rep. Matt Gaetz -- and said the Legislature failed to enact a Senate map during its special session “because of partisanship, self-interest, and palace intrigue,’’ a reference to the Republican infighting over the future Senate presidency.

The Senate proposal was submitted to the court by Senate President Andy Gardiner, R-Orlando, and Senate redistricting chairman Sen. Bill Galvano, R-Bradenton, as a combination of two staff-drawn maps but it was never voted upon by the Senate.

The plaintiffs argued that the Legislature ordered staff to draw six “base” maps but never told them to “correct – or even consider – the constitutional defects identified by Plaintiffs” in the map the Senate had previously agreed had been illegally gerrymandered.

As a result, they claim the map submitted to the court is an “amalgam of maps” that continues to rely on configurations drawn by political operatives who were accused of conducting a “shadow” redistricting process for the now-invalidated congressional map.

“The Senate found just the right combination to create better Republican performance and pair fewer incumbents than any of the six base maps,’’ they argued, noting that the map submitted to the court pairs only two sets on incumbents against each other and creates “22 Republican-performing districts in the 2008 presidential election, 24 Republican-performing districts in the 2010 gubernatorial election, and 23 Republican performing districts in the 2012 presidential election.”

After Senate leaders conceded that the 2012 map it adopted was gerrymandered to protect incumbents and Republicans, the Florida Supreme Court declared that the burden had shifted from the plaintiffs to the Legislature, which had to defend its map.

But while the Legislature argues in its brief that its Senate map should be given preference, its lawyers do not defend how they drew it or why, instead focusing their argument on attacking the plaintiff’s map, its map drawers and the process.

They accuse the plaintiffs of “insisting on an open and transparent process free from partisan intent,” but they then failed to record their telephone conversations and they withheld their final maps until the Legislature’s special session had adjourned.

The Legislature’s lawyers wrote that John O’Neill, the principal mapdrawer used by the plaintiffs, is a “young Democrat political activist trained in the art of gerrymandering by Strategic Telemetry, a Democrat microtargeting firm hired by Plaintiffs to draw congressional and legislative plans in 2011 and 2012.’’

By selecting O’Neill, “Plaintiffs ensured that their map drawer not only shared their political leanings, but also had experience designing districts that favor,” they wrote.

The Legislature’s lawyers referred to a pending redistricting lawsuit in Arizona in which Strategic Telemetry is being cited for under-populating Democratic districts and overpopulating Republican districts in that state. Oral arguments are pending before the U. S. Supreme Court in that case on Dec. 8.

The Legislature argues that the plaintiff’s maps attempt to “crack” minority populations “in protected districts to enhance Democrat performance in adjacent districts,” create “bizarre” configurations in South Florida “to enhance Democrat performance in adjacent districts,” and “systematically overpopulated Republican districts and underpopulated Democrat districts.”

They conclude: “Plaintiffs drew their own alternative maps in complete secrecy and in collaboration with partisan operatives. Because their maps emerge from a tainted process, they are unconstitutional as a whole and must be presumed invalid.’’

The plaintiffs offer their own allegations of political conspiracy, alleging that although the House and Senate could not agree on a final map, their submitted map was gerrymandered for Republican gain. The Senate, for example, passed a map that “could not tolerate even a single Republican pairing.”

The map approved by the Senate, “drew the residence of Diaz de la Portilla’s brother into District 37, clearing the path for him to seek election after Diaz de la Portilla becomes term-limited in 2018,’’ the plaintiffs wrote. And they noted that the House rejected the Senate map but suspect changes of its own aimed at disfavoring Sens. Jack Latvala of Clearwater and John Legg of New Port Richey by putting them into the same district in an effort to give the advantage of Sen. Joe Negron in the bitter Senate presidency fight.

The coalition also said the court should approve one of their maps because they create a fourth Hispanic district in Miami-Dade County. It accused the Senate of packing Hispanics in South Florida into three districts, diluting Hispanic political power in violation of the federal Voting Rights Act.

In District 39 in Miami, for example, the Senate creates a “majority-minority only in a hollow sense” because it is based on Hispanic voting age population rather than citizen voting age population and therefore “leaves Hispanics without the ability to elect their preferred candidates in the district.”

In District 35, the plaintiffs argue that the proposed black majority-minority district will not perform as a black district because there are so many non-citizens included in the district.

This is the third time the court has reviewed the Senate map. The first time was in 2012, when the Florida Supreme Court rejected the map and ordered changes. The second time came in July, when the Legislature conceded it broke the anti-gerrymandering provisions of the state constitution when it enacted the 2012 map and agreed to meet in special session.

Now, after failing to agree upon a map in special session, both sides must present their arguments for how it wants the court to complete the map-drawing in time to establish Senate districts for the 2016 elections.

One of the main obstacles for the Legislature has been the shifting of the burden of proof from the plaintiffs – who previously had to show that the Legislature’s maps were gerrymandered – to the Legislature, which now must defend its map as legitimate.

The plaintiffs detailed the defects in the Senate map and the incumbents they claim they were attempting to protect:

  • Evers and Gaetz: District 1 and 2 were drawn to benefit Rep. Matt Gaetz, R-Shaliar, and Sen. Greg Evers by avoiding a primary battle as Gaetz attempts to succeed his father, Sen. Don Gaetz, in office.
  • Bradley: Districts 5 and 7 includes a configuration originally drawn by the partisan operatives with the idea of joining half of AlachuaCounty with ClayCounty for the purpose of creating an additional Republican district in AlachuaCounty.  This configuration carried over in all base maps and was intended by benefit Sen. Rob Bradley. “Because the Senate cannot justify its decision to benefit the Republican Party and an incumbent and violate all of the tier-two requirements in Districts 4, 5, and 7, this Court should reject Districts 4, 5, and 7 in Senate Map 1 and instead adopt the analogous districts in CPS-4a or, alternatively, another one of Plaintiffs’ proposed remedial plans.”
  • Districts 6, an African American majority district, and neighboring District 8 violate the compactness requirements and should be rejected.
  • East Coast Districts 9, 11, 13 and 18 also violate the compactness requirements and equal population ideals.
  • Legg, Simpson, Bradley, Hutson, Grimsley and Negron: Districts 10, 12, 17, 19,. 20, 21, 22, 23, 24 and 26 also rely on maps originally drawn by political operatives to avoid pitting any incumbents against one another in the East Central Florida and TampaBay region, particularly Sen. Wilton Simpson of Trilby and Sen. John Legg of New Port Richey. They also rejected base map configuations that paired Bradley with Sen. Travis Hutson and Sen. Denise Grimsley of Sebring with Sen. Joe Negron of Stuart. These configurations are not compact and also fail to respect political boundaries “to benefit Republican Party and incumbents.”
  • Districts 14, 15 and 16 in Central Florida and Districts 27 and 29 in Southwest Florida also could have been drawn more compactly and they urge the court to choose the plaintiff’s configuration instead.
  • Flores, Diaz de la Portilla, Districts 25, 28 and 30 through 40 in South Florida fail to draw a fourth Hispanic-performing majority-minority district and “thereby dilutes Hispanic political power in violation of Section 2 of the Voting Rights Act.” The configuration chosen by Galvano and Gardiner instead puts Flores in a separate district as Diaz de la Portilla “and pits them against Democratic, rather than Republican, opponents.”

 One of the main obstacles for the Legislature has been the shifting of the burden of proof from the plaintiffs – who previously had to show that the Legislature’s maps were gerrymandered – to the Legislature, which now much defend its proposals as legitimate. 

Once the burden had shifted, the Legislature not only could not agree upon a map but the brief filed before the court on Wednesday also did not attempt to defend the map the Senate submitted but focused its argument on discrediting the plaintiff’s maps.

“The Court should reject the four proposed plans offered by Plaintiffs, whose maps intentionally favor Democrats and violate the Florida Constitution’s minority-protection provisions,’’ wrote lawyers for the House and Senate. “Instead, the Court should adopt the Senate’s proposed remedial plan, which complies with all of the standards set forth in Article III, Section 21 of the Florida Constitution.” 

[Last modified: Friday, November 27, 2015 3:49pm]

    

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