The election in 2010 that saw Rick Scott and a right wing legislature take over the State ended any hope that Florida would move even one inch forward on any progressive policy. Out of the darkness on election day 2010, voters did approve two Amendments to the constitution that cut the Republicans off at their knees on their dream of redistricting Florida so that it would forever be a bastion of the Republican party.
The Florida Congressional District Boundaries Amendment was a citizen initiated constitutional amendment was approved and the Republicans were furious. The measure proposed amending the current practice of drawing congressional district boundaries in such ways that they establish "fairness," are "as equal in population as feasible" and use "city, county and geographical boundaries.
First some background.
On January 25, 2011 Brian Hughes, a spokesperson for Florida Governor Rick Scott, confirmed that the governor pulled a request for federal approval of Amendment 5 and Amendment 6. Gov. Scott is reported to have acted three days after taking office on January 4, 2011. The paperwork for approval of the measures was filed December 10, 2010 by former Gov. Charlie Crist.[4]
According to the federal Voting Rights Act, the state of Florida is required to receive "pre-clearance" of changes to its election laws that affect minority rights.[4]
On Tuesday, January 25 Gov. Scott told the news media, "One of the things that we're looking at is the amendments that were passed, how they're going to be implemented. We want to make sure that with regard to redistricting, it's fair, it's the right way of doing it. So it's something I'm clearly focused on."[5]
"Census data has not been transmitted to the state yet, and the Legislature will not undertake redistricting for months, so this withdrawal in no way impedes the process of redrawing Florida's legislative and congressional districts," said Hughes of the governor's request withdrawal.[4]
In reaction to the governor's actions, supporters of the measures said the act was "shameful."[6]
Lawsuit: On February 3, 2011 supporters of Amendment 5 and 6 filed a lawsuit against Governor Rick Scott.[7] Former Florida Sen. Dan Gelber and current attorney for Fair Districts Florida said, "It's time to stop stonewalling. Governor Scott and Secretary Browning should not be abusing their power to frustrate the will of the 63 percent who voted for these reforms. The new standards must be sent to the Justice Department promptly to guarantee their implementation."[8]
In response to the lawsuit Hughes said that the governor's actions have not delayed redistricting in the state. Additionally, Hughes noted that the Florida State Legislature is currently months away from working on state redistricting and the governor is using the time to "have thoughtful consideration of the policy."[9]
Sent to U.S. Justice Dept.: On March 29, 2011 the House and Senate agreed to send the voter-approved measures (Amendment 5 & 6) to the U.S. Justice Department for "preclearance," a routine step.[10]
Amend. language approved: On May 31, 2011 the U.S. Department of Justice approved the language of the constitutional amendments.[11
source: BallotPedia
The Florida Supreme Court recently ruled that state's legislative leaders must turn over their redistricting documents, but (Republican) legislators claim that before the ruling they turned over thousands of records they considered appropriate and destroyed everything else.
It was all a part of the routine document destruction process allowed by law, lawyers for the Republican-controlled House and Senate said in court documents.
The lawsuit was brought last year against the Florida Legislature by the League of Women Voters and 11 individuals.
The challengers asked that Republican House Speaker, Will Weatherford and the Republican Senate President, Don Gaetz provide the records that they allowed to be purged. The documents being sought are emails, text messages, voice messages, handwritten notes, social media messages, Dropbox files, "and any other electronically stored information" on "all computers, cellular phones, smart phones, blackberries, tablets or other devices" used by the legislators and their staff. If the members are using their personal devices to discuss redistricting, they want all that data as well.
The plaintiffs' lawyers fear some redistricting documents are among those destroyed, while lawyers for the lawmakers say none were destroyed.
This is already a lengthy case to challenge the Legislature's intent when it conducted the once-a-decade reapportionment for legislative and congressional district boundaries.
Again from BallotPedia:
Brown v State of Florida
On November 3, 2010, hours following the November 2 general election, Rep. Mario Diaz-Balart and Rep. Corrine Brown, opponents of Amendments 5 & 6 announced that they are suing to block the measures. Both lawmakers argue that the measure is unconstitutional. According to their statement, they argue "The reason is simple: because traditional redistricting principles, such as maintaining communities of interest or minority access districts, will become entirely irrelevant if Amendments 5&6 are implemented, primarily because of the Amendments’ requirement of 'compact districts.' Certainly, minority communities do not live in compact, cookie-cutter like neighborhoods, and so district 'compactness' would defeat the ability of the state Legislature to draw access and majority-minority seats, since minority communities would become fragmented across the state."[12][13]
In reaction to the lawsuit, Ellen Freidin of Fair Districts Florida, supporters of the two measures said, "I can't imagine how this can be anything other than more effort by politicians to try and have districts drawn with no rules."[14]
Both state representatives previously challenged the measures in May 2010. However, in late August 2010 the high court dismissed challenges to both citizen proposed redistricting initiatives - Amendment 5 and Amendment 6.
The lawsuit was filed November 3, 2010. The case is Brown v State of Florida, southern district, 1:10-cv-23968.
After the lawsuit was filed questions developed about the funds used to finance the legal action. According to a report by The Florida Independent Brown requested approval from the Standards Committee to create the "Corrine Brown Legal Expense Trust." The trust would accept "contributions for legal fees and expenses incurred … in connection with [her] official duties and position in Congress."[15]
"I think one could raise quesitons about whether this is a legitimate trust fund expense," Meredith McGehee, policy director at The Campaign Legal Center, a nonpartisan nonprofit analysis group based in Washington, D.C. McGehee added, "These trust funds are similar to leadership PACs...They essentially create another pocket for special interests to funnel money to members of Congress."[15]
According to a statement by Diaz-Balart the question of whether the Amendment lawsuit was considered an "official duty" was reviewed by legal staff and cleared. The trust was formed ten days prior to filing the lawsuit.[15]
ACLU files to join lawsuit
On December 16, 2010 the ACLU of Florida filed a motion to "intervene as defendants" in the lawsuit against Amendment 6. Of the lawsuit, Randall Marshall, who is representing the ACLU in court said, "We were intimately involved in the process. With the amendments having successfully passed, we have a continuing interest that they are fully implemented." The filed documents can be read here. [16][17]
Florida House joins challenge
On Monday, January 24, 2011 the Florida House of Representatives filed to join the lawsuit challenging Amendment 6. According to Katie Betta, House spokesperson, "The U.S. Constitution delegates authority to the state legislatures to draw congressional districts. The House believes its constitutional authority has been impeded by Amendment 6."[18][19]
According to reports, the Senate has not made efforts to join the suit.[19]
Prior to the 2010 elections, the legislature approved an additional redistricting measure but it was removed from the ballot prior to the 2010 elections by court order. The state's high court ruled in late August that the measure was isleading because it did not highlight to voters the effect on the state's district requirements and because it would undermine the state's current requirement that districts be "contiguous."
In response to the January 24 developments, Rep. Perry Thurston called the House's actions a waste of taxpayers' money to try to "thwart the will of the people." Others called the efforts, an attempt by Republicans to save their own jobs.[20]
Amendment upheld
On September 9, 2011 U.S. District Judge Ursula Ungaro rejected the lawsuit filed by U.S. Reps. Corrine Brown and Mario Diaz-Balart. According to reports, Ungaro stated that she was unswayed by the arguments and had already written an order prior to the September 2011 hearing.[21] Additionally, Ungaroo noted that the amendment was a "valid regulation of the legislative process."[22]
Reports indicate that the Florida House has spent an estimated $200,000 on legal fees challenging the law.[21]
In reaction to the news, Brown said, "I am disappointed in the judge’s ruling. But this is step one. We’re going all the way to the U.S. Supreme Court."[22]
U.S. Court of Appeals
On January 11, 2012 the U.S. Court of Appeals for the 11th Circuit heard the challenge against the voter-approved amendment.[23]
On January 31 the court rejected the challenge and upheld the amendment. The decision was made unanimously and can be found here.[24]
2011 redistricting
See also: Redistricting in Florida
As of August 2011 the Florida redistricting process remained ongoing. According to reports, the two constitutional amendments approved by voters in 2010 may tweak that process and impact Republicans in the coastal communities.
If the amendments succeed in limiting gerrymandering in Florida, many Democrats believe the change would weaken the state's entrenched GOP majority. Republicans argue that their success is based on ideology not partisan districts.[25]
The impact of the amendments on Republicans could be sharply felt in the state's coastal communities. Several of these districts stretch along the coast, uniting coastal communities but dividing counties and municipalities. Since the amendments require that county and city lines are respected where possible, these districts may have to be re-drawn. However, local Republicans argue that these communities share common interests, interests that should be respected in redistricting. The legislators most likely to be affected include: US Rep. Allen West (R-22), State Sen. Ellyn Bogdanoff (R-91), and State Reps. George Moraitis (R-91), Bill Hager (R-87), Pat Rooney (R-83), William Snyder (R-82), and Jeff Clemens (R-89).[26]
In a 5-2- ruling a couple of weeks ago, the Florida Supreme Court for the first time, acknowledged that while legislative privilege does exist in Florida, it is not absolute. "this type of 'chilling effect' was the precise purpose of the constitutional amendment outlawing partisan political gerrymandering and improper discriminatory intent," wrote Justice Barbara Pariente in the majority opinion.
The next step, legal experts say, is to determine how permanent the Legislature's destruction of documents is and whether anything significant was destroyed. The challengers may have to hire a forensic computer expert to dig deep into the House and Senate computer servers to uncover evidence of legislative intent, said Gerry Hebert, a former Justice Department lawyer who is representing the League of Women Voters in the Florida case.
From Fair Districts Now:
The 5-2 decision means that the League of Women Voters, Common Cause and others can force Republican senators and key staff members to testify under oath about their motives in drawing districts. The plaintiffs claim emails show that the GOP plotted with party officials and political consultants for partisan advantage in the 2012 remapping of Senate and congressional districts.
In a blistering dissent, Justice Charles Canady, joined by Chief Justice Ricky Polston, called the majority's conclusions "unprecedented" and said the ruling "grievously violates the constitutional separation of powers."
"For the first time in the recorded history of our Republic, a court has ruled that state legislators are required to submit to interrogation in a civil case concerning their legislative activities," Canady wrote.
The 2012 reapportionment was the first in Florida that had to comply with two voter-approved "fair districts" amendments to the state Constitution that prohibit partisan gerrymandering.
When the groups issued subpoenas on former Senate Majority Leader Andy Gardiner, R-Orlando, and two staffers, the Legislature sought an order to block their testimony as well as access to draft copies of maps.
The Supreme Court majority concluded that the Constitution gives legislators a privilege from testifying, but it "is not absolute and may yield to a compelling, competing interest." In addition, the justices noted, the fair districts amendments specifically outlaw improper legislative "intent," which opened the door for lawmakers and staffs to be forced to testify about their intent.
Justice Barbara Pariente wrote that the court must strike a balance between the constitutional rights of Florida citizens and the separation-of-powers principle that legislators enjoy a shield from being compelled to testify about their activities.
"We conclude that there is no unbending right for legislators and legislative staff members to hide behind a broad assertion of legislative privilege to prevent the discovery of relevant evidence necessary to vindicate the explicit state constitutional prohibition against unconstitutional partisan political gerrymandering and improper discriminatory intent," Pariente wrote.
Deirdre Macnab, president of the League of Women Voters of Florida, praised the decision and said the behind-the-scenes maneuvering over drawing the 2012 districts "made a mockery of open government."
"No amount of kicking and screaming by legislators should prevent the will of the people from being followed," Macnab said.
The Senate and its attorneys declined to comment Friday.