Tuesday, December 12, 2017
News Roundup

Justices seek input on how to handle new redistricting rules

TALLAHASSEE — Faced with writing a precedent-setting ruling that could shape the state's political lines for decades, the Florida Supreme Court on Wednesday aggressively grilled lawyers representing Democrats and Republicans, asking them how to interpret the state's new redistricting rules.

"We need help,'' said Justice Barbara Pariente, who dominated questioning during the three-hour hearing on the Legislature's reapportionment plans.

The court has until March 9 to decide if the maps comply with the Fair Districts anti-gerrymandering standards approved by voters in 2010. It has three options:

• Send the maps back to the Legislature to try again.

• Validate the maps as compliant.

• Validate the maps, but acknowledge that a lawsuit could be brought through the trial court to sort out flaws.

"You are the ultimate authority,'' said Jon Mills, a University of Florida law professor and former House speaker arguing for the Florida Democratic Party. The Legislature's interpretation "may be interesting but your interpretation is binding."

The new rules establish three landmark standards that legislators must follow when they do the once-a-decade redistricting process. They prohibit lawmakers from intentionally protecting incumbents and political parties; require them to preserve minority voting rights; and, order them to draw compact districts where possible.

But the new standards don't offer the court any guidance as to how to define those concepts, and the court was clearly divided over how far it should go.

"How can we possibly second-guess the Legislature,'' asked Chief Justice Charles Canady, a former state legislator and congressman who made it clear he wants the court to take a very limited review of the maps.

George Meros, a lawyer from the GrayRobinson firm representing the House, responded that the complex nature of the issues involved made it "virtually impossible" for the court to consider without detailed evidentiary review.

"This is an incredibly difficult balancing of standards that takes thousands of hours to do," Meros said. He urged the court to leave disputes over interpretations of the new constitutional standards to a trial court, where evidence and witnesses could be cross examined.

Lawyers for the Republicans, including the House, Senate and Attorney General Pam Bondi, had asked the court to follow the procedure used in 2002 when the court looked at the maps and approved them. But lawyers for the Democratic Party, the League of Women Voters, the National Council of La Raza and Common Cause of Florida argued that the court had an obligation to delve deeper this time in order to decide if the Legislature followed the new rules.

Three of the seven justices seemed ready to do that. Justices Pariente and Peggy Quince suggested that new amendments elevate the court's burden beyond the role they had in previous redistricting years. Justice Fred Lewis suggested that the court had an obligation to define the new standards.

A limited review "would defeat the intent of the voters,'' Pariente said. "It's not fair to the citizens. It's not fair to the potential candidates and it's not fair to the process."

Pariente suggested the court must not only determine if the Legislature appropriately applied the new standards but must define the standards, such as compactness and retrogression — the legal standard used by the U.S. Justice Department to determine if a minority group is worse off because of redistricting.

But Meros countered that developing those definitions would be a "virtually impossible task" since some of the standards are inconsistent with one another. He urged the court to let the definitions emerge "on an incremental basis" as legal challenges against redistricting maps wind their way through the courts for years to come.

The justices also asked lawyers how each of the maps treated compactness of districts, whether legislators considered how the minority districts might perform and whether minorities were unfairly packed or fairly consolidated. They even discussed the Senate's numbering system, in which the chamber's leaders attempted to extend the terms for lawmakers who faced term limits.

"I really appreciate the way the House went about the drawing of this map,'' said Pariente, one of several backhanded compliments offered to the House, in stark contrast to the Senate. She said that the House not only adhered to the new standards but, "unlike the Senate," also understood the Justice Department guidelines for protecting minority voting districts.

"If we were to find that the Senate map has problems, is invalid, but the House challengers have not met their burden … is that separable?'' Pariente asked.

Paul Smith, lawyer for the coalition of voting groups, said the court could approve one and reject the other, and the Legislature would have to revamp the defective one.

If the court orders the Legislature to rewrite one or both maps, the governor must call a special session devoted exclusively to redistricting within five days.

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