Florida’s litigation in the 2010 cycle focused primarily on the “Fair Districts Amendments” added to the state constitution by initiative in 2010. There were two nearly identical amendments: one setting standards applicable to congressional districts (art. III, § 20), and the other setting standards applicable to state legislative districts (art. III, § 21). The amendments spawned a flood of litigation challenging the amendments themselves, plans adopted under the new standards, and—in the process—plaintiffs’ attempts to determine the intent of the legislators who adopted the plans..
The new constitutional standards are set out in two tiers. The first-tier standards have equal priority among one another:
- No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or incumbent.
- Districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.
- Districts shall consist of contiguous territory.
The second-tier standards are subordinate to those in the first tier and have equal priority among one another:
- Districts shall be as nearly equal in population as is practicable.
- Districts shall be compact.
- Districts shall, where feasible, utilize existing political and geographical boundaries.
Brown v. Secretary of State, No. 11-14554, 668 F.3d 1271 (11th Cir. Jan. 31, 2012)
Plaintiff members of Congress and the Florida House of Representatives challenged the Fair Districts Amendment relating to congressional districts (art. III, § 20) as violating the Elections Clause of the U.S. Constitution. They argued that, because the Elections Clause authorizes “the Legislature” of each state to prescribe the times, places, and manner of holding congressional elections, a state constitutional amendment proposed by citizen initiative was invalid as applied to congressional elections. The 11th U.S. Circuit Court of Appeals upheld the amendment because, rather than dictating electoral outcomes, the amendment seeks to maximize electoral possibilities by leveling the playing field.
Romo v. Detzner, No. 2012-CA-412 (2nd Cir. Leon County)
The congressional plan enacted under the new constitutional standards was challenged in state court. In Romo v. Detzner, plaintiffs challenged numerous congressional districts and the plan as a whole. They alleged that the legislature intentionally favored the Republican Party and incumbents by drawing districts that preserved the cores of prior districts and avoided pairing incumbents, packed Democratic and African-American voters, created districts that were not compact, and did not utilize existing political and geographic boundaries where feasible.
Before the final ruling on either the Senate or the congressional plan, a discovery battle ensued, resulting in three more decisions by the Florida Supreme Court (Apportionment IV, V, and VI).
League of Women Voters v. House of Representatives (Apportionment IV), No. SC13-949, 132 So.3d 135 (Fla. Dec. 13, 2013)
In the congressional case, the legislative defendants asserted “an absolute privilege against testifying as to issues directly relevant to whether the legislature drew the 2012 congressional apportionment plan with unconstitutional partisan or discriminatory ‘intent.’” Apportionment IV at 2. The Florida Supreme Court recognized a legislative privilege founded on the constitutional principle of separation of powers, even though there is no legislative privilege explicitly stated in the state constitution. However, the privilege is not absolute “where the purposes underlying the privilege are outweighed by the compelling, competing interest of effectuating the explicit constitutional mandate [in the Fair Districts Amendment] that prohibits partisan political gerrymandering and improper discriminatory intent in redistricting.” Id. at 3. The court approved “the circuit court’s order permitting the discovery of information and communications, including the testimony of legislators and the discovery of draft apportionment plans and supporting documents, pertaining to the constitutional validity of the challenged apportionment plan.” Id. at 4. It concluded that “legislators and legislative staff members may assert a claim of legislative privilege at this stage of the litigation only as to any questions or documents revealing their thoughts or impressions or the thoughts or impressions shared with legislators by staff or other legislators, but may not refuse to testify or produce documents concerning any other information or communications pertaining to the 2012 reapportionment process.” Id. at 39-40.
League of Women Voters v. Data Targeting, Inc. (Apportionment V), No. SC14–987 (May 27, 2014)
Again, in the congressional case, non-party political consultants asserted that the First Amendment Privilege protected documents reflecting their communications. The plaintiffs contended that the documents would “demonstrate ‘the surreptitious participation of partisan operatives in the apportionment process,’” Apportionment V at 2, by submitting “through ‘public front persons’ draft redistricting maps for the legislature’s consideration.” Id. at 5. The trial court ruled that the privileged documents in possession of non-parties might be admitted as evidence under seal, but that court proceedings would remain open during any use of the documents at trial. The Florida Supreme Court, however, required the trial court to maintain the confidentiality of the documents by permitting disclosure or use only under seal, and in a courtroom closed to the public.
Bainter v. League of Women Voters (Apportionment VI), No. SC14-1200, 150 So. 3d 1115 (Fla. Nov. 13, 2014)
On appeal from the trial court’s order to produce documents, the Florida Supreme Court held that the political consultants had waived any objection to production of the documents based on a qualified First Amendment privilege by not raising it during more than six months of hearings and filings regarding document production. The court also rejected the consultants’ claim of a trade secrets privilege against production. It ordered the sealed documents and sealed portions of the trial transcript unsealed.
League of Women Voters of Florida v. Detzner (Apportionment VII), No. SC14-1905, 172 So.3d 363 (Fla. July 9, 2015)
On July 10, 2014, the Romo v. Detzner trial court declared two congressional districts invalid. On Aug. 11, 2014, the legislature in special session enacted a remedial plan, which the trial court approved. The parties then appealed and cross-appealed. In Apportionment VII, the Supreme Court reviewed the trial court’s final judgment and the legislature’s remedial plan. The Supreme Court held that that the trial court, in approving the remedial plan, failed to give proper legal effect to its determination that the congressional plan was enacted in 2012 with unconstitutional intent to favor a political party or incumbents. The Supreme Court held that in light of the trial court’s finding of improper intent, the trial court should have required the legislature to justify any district that the plaintiffs showed to have a problematic configuration. The Supreme Court required eight districts to be redrawn: five districts where plaintiffs proved there was intent to favor or disfavor a political party or incumbent, and three that were not compact or did not utilize existing political and geographical boundaries.
League of Women Voters v. Detzner (Apportionment VIII), No. SC14-1905, (Dec. 2, 2015)
A special session on Aug. 10-21, 2015, adjourned without enactment of a revised congressional plan. Thereafter, the Florida Supreme Court gave final approval to the congressional plan adopted by the trial court, which consisted of Districts 1 to 19 (North and Central Florida) as passed by the House and incorporated into the plaintiffs’ alternative map and Districts 20 to 27 (South Florida) as proposed by plaintiffs.
Adapted from 2010 Redistricting Case Summaries, NCSL (Petter Watson)
