Splits emerge over Senate legal strategy over redistricting redraw
It's no secret that the infighting within the Republican ranks in the Florida Senate has led to a bitter contest between Sen. Joe Negron of Stuart Jack Latvala of Clearwater over who will lead the Senate in 2016.
Now, it appears, dissension is mounting over how Senate leaders are handling the legal argument as the Legislature meets in special session to resolve its differences over redistricting.
On Monday, Sen. Tom Lee, R-Brandon, emerged as a critic of the decision by Senate redistricting lawyers to propose a series of draft maps without showing how they repair the flaws alleged by the challengers in the lawsuit. The Legislature was sued by the League of Women Voters, Common Cause and a group of Democrat-leaning individuals for violating the anti-gerrymandering provisions of the Florida Constitution when it drew the 2012 Senate reapportionment boundaries.
Lee accused the Senate lawyers of "not being on solid legal footing" because whenever he asks them a question "all I get is squid ink...Some legal mumbo jumbo."
On Tuesday, Latvala piled on. It appears that both Latvala and Negron supporters would benefit from the decision by Senate lawyers to argue that senators now elected to four-year terms do not have to seek re-election in 2016, even if their districts are redrawn this session.
"I think our lawyers are making political decisions and it's not serving us well,'' Latvala told the Herald/Times. "I do not think we would be in this position if we had really good lawyers. We have sought our attorneys advice at every juncture and, at every juncture, we have been out-lawyered."
For example, Negron and his supporters Thad Altman, R-Rockledge, and Lizbeth Benacquisto, R-Fort Myers, would not be up for re-election if their legal argument holds. But also benefitting would be Latvala and his supporters Greg Evers, R-Baker, Miguel Diaz de la Portilla, R-Miami, Rene Garcia, R-Hialeah and David Simmons, R-Altamonte Springs.
Of that group, only Negron and Benacquisto have not opened a campaign account to run in 2016.
Latvala also said he was "aghast" to find that the lawyer formerly on the Senate staff, Andy Bardos, was now representing the House as an outside counsel. "Somebody had to give him clearance to change sides,'' he said.
Bardos represented the Senate during the redistricting session of 2012 but Senate General Counsel George Levesque at that time represented the House. Both chambers said they were given permission to switch sides.
According to the Senate, taxpayers have spent $5.3 million on legal advice and special sessions to defend the Senate in the redistricting disputes that have emerged since they adopted reapportionment maps in 2012 using the Fair Districts guidelines was passed by voters in 2010.
In July, after the Florida Supreme Court invalidated the congressional redistricting map, the Legislature agreed to settle a lawsuit from a coalition of voters groups and Democrat-leaning individual voters challenging the Senate map. They agreed to convene a special session to redraw the map and, to avoid being influenced by partisans and political operatives that were accused of "infiltrating" the previous map, the House and Senate ordered their staff to meet in secret with their lawyers and come up with draft maps.
But on Monday, Lee complained that the proposed maps appeared to have little relationship to the complaints the prompted the lawsuit. For example, several of them include districts that link communities in Hillsborough and Pinellas counties even though the Florida Supreme Court ordered lawmakers not to do that in the congressional map.,
Left unsaid by Lee, a Latvala supporter, was the change has the fact that challengers noted that the configuration of a district that crosses the bay has the effect of helping Sen. Jeff Brandes, R-St. Petersburg. His district becomes so Democratic if Pinellas is kept whole that it is speculated he could move into Latvala's neighboring district. Brandes is a Negron supporter.
"How do I as a legislator vote for a map, whether I like it overall, when I know it specifically flies in the face and ignores one of the fundamental objections by the plaintiffs that led us to this point,'' Lee said during a joint meeting of the House and Senate redistricting committees on Monday.
Senate Reapportionment Committee Chairman, Sen. Bill Galvano, R-Bradenton, responded that the Senate agreed to settle the case with the challengers but consented only to the fact that they violated so-called "Tier One" conditions in the constitution -- such as protecting incumbents or political parties.
"The way to cure that infirmity was to establish a sterile process,'' Galvano said, referring to the staff and lawyers being sequestered while drawing the draft maps.
"It would be your representation that simply fixing the process and re-adopting the Senate map would result in a cure?" Lee asked.
"That's an arguable position,'' Galvano responded.
"Well, I think that's ludicrous,'' Lee replied. "I wouldn't make the argument."
Lee said the Senate should be drawing its maps in a way that responds to the complaint from challengers because "if we don't fix these things, and just ignore the court's directive to us, this thing is going to get kicked out again,'' he said. "And I just hope whatever we do, we hold it up to the light against the infirmities that have been alleged by the plaintiffs that we have admitted."
He added there is a legal argument that because they didn't specifically say in the settlement that the allegations did not apply, "then we have admitted every one." He urged them to discuss this during the Senate meeting on Wednesday.
Justice Raoul Cantero, the lead attorney for the Senate, said they "answered the complaint and we denied the allegations."
"We said this was unconstitutional and in no place did we say these allegations were inaccurate. Why didn't we do that?" Lee pressed.
"We did object,'' Cantero responded. "We answered the complaint and denied those allegations and the consent judgement did not include those allegations."
"We admit the map as a whole was unconstitutional and we agreed we were going to redraw the map,'' he said. "We didn't say any specific district was drawn unconstitutionally. So the fact that we now go to Pinellas from Tampa Bay doesn't mean we are going to deny a stipulation about going into Tampa Bay."
The plaintiffs argued that the reason to cross Tampa Bay was to protect Republican incumbents and Cantero said they can show they aren't doing that this time.
Lee pointed to "allegation number 50" in the plaintiff's complaint, which objected to crossing Tampa Bay, and suggested that Cantero's approach is flawed.
"It is not the same configuration as the enacted plans' configuration. In fact, it's similar to the NAACP's configuration,'' Cantero said. He said he will defend it in court "because it is the only way to protect minorities in that area."
However, because they started from scratch and can justify crossing the bay and it's a compact district, the court should uphold it, he said. "If you don't have the intent, then what the political effects are doesn't matter."
Lee also raised doubts about the decision by Senate lawyers to allow members with four-year terms to avoid running again even if redistricting results in changes to their existing district.
“They’re trying to dodge a bullet here and they’re not happy,'' Lee told reporters after the meeting. He suggested that the reason Senate leaders conceived the plan to allow half the Senate to keep their four-year terms and avoid re-election was to avoid the inevitable.
"I realize no one wants to deliver the bad news to the members,'' he asid. "If that’s going to happen let the court tell them. It makes perfect political sense doesn’t it?"