With options limited, Florida legislators remain silent about redistricting plans

U.S. Rep. Corrine Brown has threatened to sue over how her District 5 is redrawn by legislators.
U.S. Rep. Corrine Brown has threatened to sue over how her District 5 is redrawn by legislators.
Published July 11, 2015

TALLAHASSEE — Uncertainty continued to reign in Florida's political world Friday, a day after the state Supreme Court declared Florida's congressional map invalid and ordered up a remedy by Oct. 17.

Legislative leaders remained silent about what's next, saying they were absorbing the implications of the ruling that blew up the congressional map.

But legal scholars and redistricting experts said legislators have limited options and, with the Supreme Court giving them only 100 days and employing the unusual move of retaining jurisdiction over the case to ensure that the process moves quickly, the legislators are under the gun to make some decisions fast.

"Whatever procedure the state Legislature is going to adopt, they need to do it right now," said Michael McDonald, an associate professor of political science at the University of Florida who has been a redistricting consultant in 14 states.

"They have to justify how the map was formed and it has to be very transparent. One hundred days is a very tight deadline to do all of that and get a new map."

While Republican legislative leaders may be under some pressure to try to fight the ruling — in an attempt to retain the existing districts for another cycle and help Republicans hold on to the U.S. House — the prospects for litigation also are limited, the experts said.

They could petition the U.S. Supreme Court to review the case, said Justin Levitt, a Loyola Law School professor and an expert on redistricting law.

But the Florida Supreme Court "was very careful in analyzing not only the Florida state Constitution but also the very recent U.S. Supreme Court decisions regarding the elections clause," he said. "I don't think there is any merit to seeking federal review, but, if it was attempted, there is no reason for the Florida Supreme Court or U.S. Supreme Court to press pause in the meantime."

U.S. Rep. Corrine Brown, a Jacksonville Democrat, has threatened to sue if lawmakers follow through on the court's direction to dismantle her north-south, minority-controlled district to have it align across the top of the state in an east-west direction.

Finally, there is a pending challenge to Congressional District 5, held by Brown, that had been put on hold until the state litigation was resolved. Levitt said that case could move forward, or someone could bring a new federal challenge asking a federal court to redraw the lines.

In either case "it would be extremely unlikely" that any challenge in the federal courts would put a halt to the state redistricting process, Levitt said. "The train's still moving."

The resulting uncertainty permeates "every level of government," said Steve Vancore, a Tallahassee-based political consultant. "There are city commissioners right now thinking about what's going to happen to the House seat, if the senator moves to Congress. We've never seen a shakeup like this in Florida politics in modern history."

If legislators have a plan, they're not saying.

"I thought the court decision was wrong, but it's valid and we have to comply," said Rep. Richard Corcoran, R-Land O'Lakes, who directed the House rewrite last August of the rejected congressional map. "The last map we drew had bipartisan support in both Houses. This decision was disappointing."

Hours after Thursday's ruling, House Speaker Steve Crisafulli sent a memo to lawmakers reminding them "not to speak to members of Congress, staff or political consultants about redistricting at this time," and urged them to retain all communications and records relating to redistricting.

Senate President Andy Gardiner issued a similar memo.

Meanwhile, if the Legislature fails to produce a map, the court opened the door for it to take over the process and even cited the Colorado Supreme Court's ruling that states that take over the redistricting process "cannot be characterized as 'usurping' the legislature's authority; rather, the court order fulfills the state's obligation to provide constitutional districts in the absence of legislative action."

Glenn Burhans, an election law expert with the Tallahassee firm of Stearns, Weaver and Miller, said the court "has laid down the gauntlet — if the Legislature refuses or fails to draw a map that complies with the Florida Supreme Court's ruling, the court will have to take further action."

If that happens, the court has three options, the experts said:

• The court could hire an expert, such as a special master, who draws the districts, which the court then approves. New York's current congressional districts were resolved this way.

• The court could look back at the legislative record and choose among the plans that have been submitted.

• The court could ask to have additional plans submitted by parties and the public.

If the process doesn't move fast enough, the court has the power to postpone the congressional primary to give candidates more time to meet filing deadlines, said McDonald of UF. North Carolina was faced with this scenario in the 1990s.

Burhans also speculated that the Legislature could take direction from the dissenting opinion by Justice Charles Canady and challenge any attempt by the court to draw maps as a violation of the separation of powers.

"Perhaps there will be a hybrid approach," he said. "Go into special session and redraw the map and if, at that point, the FSC rejects it again, seek to block the court from drawing the map with a separation of powers attack."

One thing is clear: The court's ruling said that Florida will have constitutional maps in place for the 2016 congressional elections.

"My expectation is the Legislature will act," McDonald said. "How does it act? Does it comply with the Supreme Court as faithfully as possible or try to covertly inject politics into it and play games with it? They're really playing with fire if they do something like that because the court has already said they're not going to tolerate that."

Times/Herald staff writer Steve Bousquet contributed to this report. Contact Mary Ellen Klas at Follow @MaryEllenKlas.