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Letter outlines possible legal opposition to new congressional districts

The League of Women Voters and Common Cause on Friday sent a letter to House Speaker Steve Crisafulli and Senate President Andy Gardiner outlining what could make up the core of a legal argument against new congressional district maps being drawn this week and next in Tallahassee.

"We write to call your attention to the fact that we have questions about some choices made with regard to the proposed configuration of Congressional District ("CD") 26 and CD 27," they wrote. "We ask you to examine those districts closely as they appear to have been drawn with partisan intent."

Districts 26 and 27 are South Florida seats that currently split the city of Homestead in Miami-Dade. In its ruling overturning the congressional districts, the state Supreme Court instructed the Legislature to keep Homestead in one district, saying that the lines appeared to be drawn to ensure the 26th continued to be held by a Republican.

While a newly proposed map by the Republican-controlled House and Senate would put all of Homestead in District 26, it would add Democrat voters to the already very-blue District 27. This, argue League of Women Voters and Common Cause, would have the effect of giving the the GOP even more protection in District 26, currently represented by freshman U.S. Rep. Carlos Curbelo, a Republican.

"While complying with the letter of the Court's Opinion by keeping Homestead whole, this move accomplished the same partisan result," the letter says. It goes on to say, "with this latest change, CD 26 in the Base Map (passed by the House Select Committee on Redistricting Thursday) becomes even more Republican performing."

The League and Common Cause were plaintiffs in the lawsuit against the state Legislature that resulted in the current congressional maps being thrown out in a 5-2 decision by Supreme Court justices. After the House and Senate pass a map and it's signed by Gov. Rick Scott, it goes back to a judge for approval.

It appears the line between Districts 26 and 27 will form the core of possible opposition to the maps in in court, as the League and Common Cause say it violates the same constitutional provisions that led to the current redistricting special session to begin with.

Here's the full letter:

On behalf of our members statewide and for all the people of Florida, we applaud you and your staff for your efforts to follow the suggestions of the Florida Supreme Court in drawing most of Congressional Plan H000C9065 (the "Base Map"). We understand the tight time constraints under which you have been working and it is obvious that staff has put great time and effort into the production of the Base Map. For the most part, the base map appears to comply with the Court's July 9, 2015 Opinion in League of Women Voters of Florida v. Detzner, ___ So. 3d ____, 2015 WL 4130852 (Fla. July 9, 2015)("Apportionment VII").

However, we write to call your attention to the fact that we have questions about some choices made with regard to the proposed configuration of Congressional District ("CD") 26 and CD 27. We ask you to examine those districts closely as they appear to have been drawn with partisan intent.

Specifically, the Base Map's configurations of CD 26 and CD 27 perpetuate the same violation of tier-one principles that caused the Court in Apportionment VII to order that the districts be redrawn. That is, in both the enacted map, H000C9057, and the Base Map, there appears to have been a targeted effort to shift Democratic, African American population into CD 27 in order to maintain a lower Democratic performance index in CD 26. In 9057, this was done by splitting Homestead and shifting a predominantly Democratic-voting minority population into CD 27. In the Base Map the Legislature did follow the Court's suggestion to keep Homestead whole, thus moving all of Homestead's Democratic, African American population into CD 26. However, when the Legislature chose to replace that population, it selected other predominantly Democratic, African American population from CD 26 and moved it into CD 27. While complying with the letter of the Court's Opinion by keeping Homestead whole, this move accomplished the same partisan result. By its decisions, the Legislature increased the chances that a Republican could win in CD 26. This appears to have been done to favor the Republican Party and incumbent Carlos Curbelo.

More specifically, this maneuver shifted from CD 26 to CD 27 a predominantly Democratic-voting community of about 60,000 people, with a Black Voting Age Population ("VAP") of 29.6%. That move again seems to have been made to address the concern of partisan political operatives that the Senate's early version of the district, was "pretty weak" and the House "need[ed] to fix" it. ApportionmentVII, 2015 WL 4130852 at *41. As a result, CD 26 was Republican-performing in H000C9057 according to the 2008 presidential and 2010 gubernatorial elections, instead of being Democratic-performing as in the Senate configuration that was disapproved by the political operatives. And with this latest change, CD 26 in the Base Map becomes even more Republican performing.

In the same way as H000C9057 shifted an African-American, Homestead-area community into CD 27, the Base Map instead shifts predominantly African American communities in Richmond Heights, Palmetto Estates, and West Perrine into CD 27. That move has the effect of trading about 35,000 people with a Black VAP of 52.3% for the population shed from Homestead. The partisan effect is to create a "wash" or an alternative means to perpetuate and, in fact, increase the Republican advantage of the Homestead split. This maneuver in the Base Map decreases the Democratic performance of CD 26 even more than the Homestead split.

This move obviously undermines both the letter and spirit of the FairDistricts Amendments, violates the prohibition of intentional partisanship and incumbent protection and constitutes a failure to follow the Florida Supreme Court's holding in Apportionment VII.

We are confident you can find an alternative means of equalizing the population of CDs 26 and 27 that would not achieve the partisan goal that the Florida Supreme Court found existed in 9057. Indeed, at committee meetings this week, Staff merely indicated that the predominantly Black areas of Richmond Heights, Palmetto Estates, and West Perrine were "the logical place" from which to take the population necessary to make up for the population lost in CD 27 by elimination of the Homestead split. We submit that, in fact, the population removed from CD 26 was chosen because that particular population, if left to remain in CD 26, would have made the district more Democratic and improved tier-two compliance in the region as a whole.

For the reasons stated above, the Base Map perpetuates a partisan-tainted strategy to make CD 26 a more favorable seat for Republicans. We continue to urge the Legislature to comply with the letter and spirit of the FairDistricts Amendments. We hope you, your staff or other members of the legislature will find a non-partisan way to draw CD's 26 and 27 and will offer amendments to the base map to accomplish this goal.

Thank you for your efforts in this matter,

Pamela S. Goodman, League of Women Voters of Florida

Peter Butzin, Common Cause

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