In the next few days, the Florida Supreme Court may be making one of its most important decisions in recent history when it rules on the constitutionality of redistricting maps recently approved by the Legislature.
Most of the media speculation has focused on the fate of the maps. Will they survive judicial review intact? Will they be sent back to the Legislature for modification? Will they be rejected outright in favor of an alternative court-ordered map?
These are important questions. But what many observers fail to fully grasp is that the majority opinion's justification for its decision will be more important than the decision itself. In fact, even after the decision, the fate of the Legislature's redistricting maps will likely remain unclear. What should be much clearer, though, is the court's interpretation of the redistricting amendments (FairDistricts Florida.org) that voters approved in November 2010.
The most important question facing the court concerns the scope of its review. Previous Florida Supreme Court redistricting opinions have been consistent in determining that scope should be limited to "facial" assessments of legislative compliance with a small number of constitutional requisites. In rejecting any attempt to make "factual" discoveries, the court has previously cited legislative authority, a limited 30-day review period and the absence of language in the state Constitution that's more stringent than the federal Constitution.
The new amendments now provide more stringent language. But the 30-day clock remains, along with the rest of the constitutional provisions providing for legislative authority over redistricting matters. Does this mean that the court will now broaden the scope of its review to include some consideration of factual discoveries? Will the court assert itself in specifying additional parameters for compliance with one or more of the new constitutional provisions?
The legal briefs and oral arguments presented to the court disagree sharply on the purview of the court. The briefs of the Florida House and Senate argue that the court's judicial review must remain cursory. Attorney General Pam Bondi's briefs are consistent with those of the House and Senate, but they also urge the court to redirect legal challenges to circuit courts with more time for fact-finding if they do decide to open the door to greater judicial scrutiny. Unsurprisingly, a coalition of plaintiffs that support the new amendments argues that the court has to take a much more expansive view of its judicial review responsibilities.
If the court determines that its responsibilities have markedly changed, then a number of interpretative questions will be brought to the forefront. How will the court determine "intent" to favor or disfavor a political party or incumbent? Will the court require evidence of intent or will it attempt to infer intent from anticipated outcomes?
Will the court venture into the realm of retrogression issues (is a minority group worse off because of redistricting?) related to the Voting Rights Act or will it continue to defer to automatic Justice Department preclearance review? Will the court determine some political and geographic boundaries to be more important than others or will it continue to grant the Legislature broad discretion in choosing among many different types of boundaries without having to justify their choices when doing so? If new maps are to be judged against benchmarks for performance, will the court use the most recent maps for that purpose or will they entertain some other standard?
All of these questions are being vigorously debated before the court. The language of the amendments, considered in the broader context of our state Constitution and past opinions of the court, fails to provide us with unequivocal answers. How the court chooses to rule upon them will determine not only the fate of the current maps, but the significance of new redistricting amendments going forward.
If the court chooses to retain a narrow or restrained position with respect to its purview, then the impact of the amendments will likely be limited. If it adopts an aggressive posture that specifies performance metrics and/or compliance parameters, then the amendments could become the game changer that their supporters have long sought. In between these two extremes lie varying degrees of constraint that the court can impose upon the Legislature.
We've known what the amendments say for two years now. We're about to find out what they mean.
Dr. Frank Alcock is senior fellow for the Collins Center for Public Policy and an associate professor of political science at New College of Florida. He can be reached at [email protected]