Florida could be headed for a state constitutional crisis over judicial appointments in early 2019 that has deeply troubling implications for the fate of two constitutional amendments that voters passed in 2010 to combat partisan gerrymandering. Republican Gov. Rick Scott faces term limits in 2018 and has to leave office on Jan. 8, 2019. The liberal bloc on the state Supreme Court currently has a 4-to-3 majority over conservatives, but three of the liberal-aligned justices face mandatory retirement the same day as the governor departs. Scott and Republicans are trying to fill those seats to flip the court to a 6-to-1 conservative advantage.
The controversy over the matter stems from the fact that Scott's successor as governor would be sworn in earlier in the day on Jan. 8; the judges, on the other hand, will still serve on the bench until the end of the day, meaning a potential Democratic successor could fill their seats. Logically, it would seem that the next governor should get to nominate replacement judges, but the state Supreme Court itself recently denied a motion from the nonpartisan League of Women Voters that sought to clarify the issue before this looming crisis actually unfolds. The court said the issue isn't yet "ripe" because Scott hasn't actually made appointments yet.
Unfortunately, this leaves the court itself in the awkward position of likely having to rule in the future whether Scott's appointments are lawful if he still goes ahead with this plot. However, Scott's own lawyer appeared to concede that the governor doesn't have the authority to make these appointments unless the judges step down early. Indeed, Republicans even tried to pass a state constitutional amendment to expressly give Scott this power, but voters rejected it in a 2014 referendum, something they wouldn't have attempted if they thought Scott had this authority.
Nevertheless, Scott himself may not even need to attempt to make illegal appointments to the court. Florida's governor can only choose judges from a list of names supplied by the Judicial Nominating Commission. The governor himself gets to appoint five members of that commission, while the state bar association fills the other four positions. However, Scott has regularly used his power to block all of the bar's proposed nominees and request they submit new lists, having rejected at least 90 names since taking office in 2011. Scott has thus used his authority to ensure that only ideologues who suit him earn judicial nominations, even though the process is supposed to be merit-based and apolitical.
Consequently, even if Democrats win the race to succeed Scott next year, they may find themselves hamstrung by having to choose from a list of judicial nominees that consists of nothing but partisan Republicans. What’s more, if they tried to sue—either to challenge Scott’s last-day appointments to the Supreme Court or his abuse of his power over the Judicial Nominating Commission—such a case would ultimately be heard by the very same Supreme Court that’s at the center of this matter. And even if Scott’s appointees aren’t seated, a high court with three vacancies would have a three-to-one conservative majority.
There’s thus a good chance that conservative Republicans will take a majority on the state Supreme Court, and if they do, they would likely neuter the Fair Districts Amendments that voters overwhelmingly passed in 2010 to ban legislators from favoring or disfavoring a particular party in redistricting. Back in 2015, the liberal-aligned court majority struck down the GOP's congressional and state Senate gerrymanders for violating these amendments, leading to much more equitable maps that have been in place since last year’s elections. However, that ruling fell strictly along ideological lines, meaning a future conservative majority would be inclined to uphold whatever gerrymanders GOP legislators might pass after 2020.
Republicans are still dominant in Florida's legislature, and it won't be easy for Democrats to win control of either chamber by the 2020 elections. If the GOP holds both chambers during redistricting, a potential Democratic governor could veto the congressional map, forcing a court to draw a nonpartisan plan. But Florida's state constitution doesn't let the governor veto legislative redistricting, meaning Republicans would be in a strong position to gerrymander at least the legislature after 2020, just as they did in the days before the Fair Districts Amendments passed.
If conservatives take over Florida's Supreme Court, the only surefire recourse that gerrymandering opponents would have is to try to put another initiative on the 2020 ballot to amend the state constitution and outright take away the legislature's power to redraw the lines by handing it to an independent commission. Reformers actually attempted this very thing back in 2006, but the court blocked it from the ballot for violating restrictions on how many subjects a single measure can address because it also would have implemented nonpartisan standards for drawing the districts.
However, now that those standards themselves are part of the constitution thanks to the 2010 Fair Districts Amendments, reformers could try once again to create a commission without worrying about the multiple-subject restrictions they ran afoul of in 2006. But that effort would cost millions and have to surpass 60 percent of the vote to prevail, throwing into doubt whether redistricting reform will survive Gov. Rick Scott’s tenure.
