Can Florida legislators be forced to testify to determine what they intended when they redrew district lines and whether they violated a constitutional amendment approved by the voters? That was the difficult question before the Florida Supreme Court on Monday, and several justices sounded skeptical about requiring that legislators provide sworn testimony on their actions during a redistricting process. But in a state with a long, sorry history of gerrymandering and new rules in the state Constitution to prevent it, the court should not let lawmakers hide behind their offices. The public interest in fair elections and upholding the state Constitution outweighs concerns that legislative activity might be chilled by the possibility of being hauled into court.
Three years ago, to end the routine and disgraceful practice of congressional and legislative districts being drawn to favor an incumbent or a political party, Florida voters overwhelmingly passed two constitutional amendments. The Legislature still draws congressional and legislative district maps every 10 years, but now it has to use neutral criteria, such as not slicing up neighborhoods. Lawmakers are barred from drawing districts with the "intent" to help or hurt a particular lawmaker or political party.
Internal emails of both Republicans and Democrats show that during 2012 there were efforts to get the best political outcomes from redistricting. The U.S. House seats and state Senate districts drawn by the Republican-controlled Legislature show signs that politics was a significant factor. The districts are being legally challenged by a consortium of groups headed by the Florida League of Women Voters.
The Florida Supreme Court is being asked to referee a technical fight that significantly affects the lawsuit. The League of Women Voters wants to depose lawmakers and their staffs and obtain relevant documents for their court fight. Florida lawmakers claim a broad legislative privilege from having to testify or turn over information on their lawmaking function. They say public officials shouldn't be harassed in court by people who don't like their legislation, and the courts shouldn't be interfering with the job they do, on separation of powers grounds.
A legislative privilege has long been recognized by the courts, and it makes sense in most situations. But in this narrow case an exception is warranted. Florida voters approved the amendments to end the days of Tallahassee power brokers deciding elections by drawing districts to protect themselves and their political parties. Enforcing the constitutional amendments that specifically mention "intent" will require more information about how district lines were drawn through depositions, emails and other key documents. Otherwise how can legislative "intent" be proven?
A trial judge ruled that some legislative discovery was permissible, but that was overturned by a divided three-judge panel of the 1st District Court of Appeal. There is no higher public purpose than ensuring fair elections. It is the foundation of our democracy. The court should stand on the side of protecting that interest, even if it means carving out an exception to the concept of legislative privilege.