For more than 50 years, Floridians have had some of the of best open records laws in the nation. Since 1967, the Government-in-the-Sunshine Law has granted us a basic right of access to most governmental meetings and public records.
Yet, when it comes to redistricting — one of the most important legislative actions — a dark cloud hangs over the Sunshine State. The drawing of new state and federal legislative seats will likely determine the partisan balance of power for the next decade in the state Legislature, and perhaps even the U.S. Congress.
With great fanfare a few weeks ago, the state Legislature, with a winking eye towards transparent policymaking, launched a new website. Our legislative leaders have promised us “free, public access to the same redistricting data and map-drawing application used by the Legislature.”
Our review of the Legislature’s contracts with their consultants, however, reveals the Legislature is shielding information from the public. More concerning, the legal umbrella the Legislature has deployed enables the Legislature to violate the Fair Districts clauses in Florida’s Constitution, which Florida voters adopted by overwhelming margins in 2010.
The Legislature cannot be presumed to be a good actor when it comes to redistricting. A decade ago, Florida’s Supreme Court overturned the Legislature’s state Senate and congressional districts for violating Florida’s Fair Districts requirements. (The state House districts were allowed to stand.) Back then, the Legislature crept into their dark dank caves where they forged gerrymanders to aid their quest to lock in control of the state Legislature and congressional delegation. They then handed their plans to lackeys who provided them back to the Legislature through public comments. Lo and behold, legislators praised these plans as clean of partisan purpose since they came from the public, and adopted them. Only later, under the extended scrutiny in courtroom battles, was this scheme to defraud Florida voters — who expressly voted to stop gerrymandering — unearthed.
It is too early to say a similar scheme is afoot, but we see clear evidence the Legislature is shielding data from the public’s eyes, information that would help the Legislature violate their constitutional obligations under Fair Districts. Just color us skeptical of claims, like the one by Sen. Ray Rodrigues, chairman of the Senate Reapportionment Committee, that the Legislature will conduct itself “beyond reproach and free from any kind of unconstitutional intent.”
The most troubling evidence we’ve unearthed thus far is that the Legislature is violating its pledge to provide the same data they are using to draw maps. A legislative contract with Florida State University commissions the school to create a database of election results. Without these data it is impossible to determine if a map is drawn “to favor or disfavor a political party or an incumbent” as required by the Florida Constitution.
But where might we find these election data? They are not available through the state’s mapping portal. Furthermore, FSU’s contract specifically exempts these data from open records requests — asserting legislative privilege over them — and requires FSU to promptly notify the Legislature of anyone requesting these data.
Of course, we are able to DIY what the Legislature doesn’t want the public to see. There are external organizations that provide free web-based redistricting evaluation and mapping tools for states across the country, such as PlanScore, Dave’s Redistricting App, and one we created through the University of Florida called DistrictBuilder. Indeed, all of these mapping applications use political data provided through our research at UF. Using these free tools, one could take a redistricting plan developed on the Legislature’s website and evaluate it.
But, there’s a catch. When creating an account through the Legislature’s software vendor, ESRI, an intrepid member of the public must accept a condition that they will not copy maps from the website in a form other than as a picture. Thus, strictly following ESRI’s user terms, no one is allowed to export plans out of the Legislature’s website and into one of these other evaluation websites (except for use in another ESRI product, if you want to pay for a license).
What is galling about this restriction on an important public policy arena — which will go far in determining which party controls the Legislature for years to come — is that there is nothing particularly special about this data. They’re just a list of the counties, cities and so on, assigned to each district. But because the Legislature has conveniently agreed to this restriction, it is impossible to externally evaluate the partisan character of any proposed districts in the maps hosted on the ESRI application, and it is impossible to know if ESRI — through incompetence or malfeasance — manipulated the underlying data.
Another curious clause in ESRI’s contract is for geocoding services. Geocoding is locating an address on a map, something that people use daily when getting driving directions to an address. There is no redistricting purpose in the Florida Constitution that requires geocoding services. However, our read of Florida’s Constitution under the Fair Districts amendments has a clause that strictly forbids the use of some geocoded addresses. Maps must not favor or disfavor a political party or incumbent. If the Legislature were to geocode the location of incumbents’ homes, they can better ensure district lines are drawn to benefit incumbents.
Florida may be the Sunshine State, but when it comes to redistricting, all the Legislature really wants Floridians to be is in the dark. Hiding information in the shadows, away from the public, makes it impossible to externally verify the Legislature’s actions are tried and true methods for politicians to gerrymander.
The Legislature has spent our taxpayer dollars to collect underlying political data that will allow lawmakers, and presumably their mapping consultants, to gerrymander the state in secret. That the Legislature is already playing these games does not bode well that they intend to have an open and honest process in the special legislative session on redistricting.
Michael P. McDonald is a professor in Department of Political Science at the University of Florida. Professor Daniel A. Smith is chair of the department.