League of Women Voters of Fla. v. Detzner

172 So.3d 363

The LEAGUE OF WOMEN VOTERS OF FLORIDA, etc., et al., Appellants/Cross–Appellees

v.Ken DETZNER, et al., Appellees/Cross–Appellants.

No. SC14–1905.

Supreme Court of Florida.

July 9, 2015.

John Stewart Mills, Andrew David Manko, and Courtney Rebecca Brewer of The Mills Firm, P.A., Tallahassee, FL; David B. King, Thomas Alan Zehnder, Frederick Stanton Wermuth, and Vincent Falcone, III of King, Blackwell, Zehnder & Wermuth, P.A., Orlando, FL; Adam Michael Schachter and Gerald Edward Greenberg of Gelber Schachter & Greenberg, P.A., Miami, FL; Mark Herron and Robert J. Telfer, III of Messer Caparello, P.A., Tallahassee, FL; and John M. Devaney and Marc Erik Elias of Perkins Coie LLP, WA, District of Columbia; for Appellants/Cross–Appellees.

J. Andrew Atkinson, General Counsel, Florida Department of State, Tallahassee, FL; Raoul G. Cantero, III, Jason Nelson Zakia, and Jesse Luke Green of White & Case LLP, Miami, FL; George T. Levesque, General Counsel, The Florida Senate, Tallahassee, FL; Allison J. Riggs and George Edward Eppsteiner, Southern Coalition for Social Justice, Durham, NC; Nancy Gbana Abudu, American Civil Liberties Union of Florida Foundation, Miami, FL; Matthew Joseph Carson, General Counsel, The Florida House of Representatives, Tallahassee, FL; and Charles Talley Wells of Gray Robinson P.A., Orlando, FL, and Jason Lawrence Unger, Andre Velosy Bardos, and George N. Meros, Jr. of Gray Robinson, P.A., Tallahassee, FL, for Appellees/Cross–Appellants.

Martha Angela Pardo, Associate Counsel, Latino Justice PRLDEF, Orlando, FL, for Amici Curiae Latino Justice PRLDEF, Florida New Majority, and Mi Familia Vota.

Opinion

PARIENTE, J.

In this appeal involving legal issues of first impression, we review a trial court's finding that the 2012 “redistricting process” and the “resulting map” apportioning Florida's twenty-seven congressional districts were “taint [ed]” by unconstitutional intent to favor the Republican Party and incumbent lawmakers.¹ Cognizant that this Court's role is not to select a redistricting map that performs better for one political party or another, but is instead to uphold the purposes of the constitutional provision approved by Florida voters to outlaw partisan intent in redistricting, the crux of what we must decide is whether the trial court gave the appropriate legal effect to its finding that the Florida Legislature drew the state's congressional districts in violation of the Florida Constitution.

Added to the Florida Constitution in 2010, the Fair Districts Amendment sought to eliminate the age-old practice of partisan political gerrymandering—where the political party and representatives in power manipulate the district boundaries to their advantage—by forbidding the Florida Legislature from drawing a redistricting plan or an individual district with the “intent to favor or disfavor a political party or an incumbent.” Art. III, § 20(a), Fla. Const. “The desire of a political party to provide its representatives with an advantage in reapportionment is not a Republican or Democratic tenet, but applies equally to both parties.” In re Senate Joint Resolution of Legislative Apportionment 1176 (Apportionment I), 83 So.3d 597, 615 (Fla.2012). As observed when a three-judge panel of a federal district court examined Florida's last decennial congressional redistricting plan in 2002, the “raw exercise of majority legislative power does not seem to be the best way of conducting a critical task like redistricting, but it does seem to be an unfortunate fact of political life around the country.” Martinez v. Bush, 234 F.Supp.2d 1275, 1297 (S.D.Fla.2002).

With the voters' approval of the Fair Districts Amendment, that unfortunate fact of political life was banned in Florida. Our citizens declared that the Legislature must “redistrict in a manner that prohibits favoritism or discrimination.” Apportionment I, 83 So.3d at 632. And the Eleventh Circuit Court of Appeals similarly declared that “[f]ar from dictat[ing] electoral outcomes, the provision seeks to maximize electoral possibilities by leveling the playing field.” Brown v. Sec'y of State of Fla., 668 F.3d 1271, 1285 (11th Cir.2012) (internal quotation marks omitted).

Like the voters of Arizona, who adopted an independent redistricting commission recently upheld by the United States Supreme Court as consistent with the “fundamental premise that all political power flows from the people,” the Florida voters endeavored “to address the problem of partisan gerrymandering—the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, No. 13–1314, ––– U.S. ––––, 135 S.Ct. 2652, 2658, 192 L.Ed.2d 704, 2015 WL 2473452, at *4, 21 (U.S. June 29, 2015). As the United States Supreme Court has recognized, “partisan gerrymanders ... [are incompatible] with democratic principles.” Id. at *4, ––––, 135 S.Ct. 2652, 2658 (alteration in original) (quoting Vieth v. Jubelirer, 541 U.S. 267, 292, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurality opinion)). In short, the Fair Districts Amendment was designed “to restore ‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.’ ” Id. at *21, ––– –, 135 S.Ct. 2652, 2677 (quoting Mitchell N. Berman, Managing Gerrymandering, 83 Texas L.Rev. 781, 781 (2005) ).²

Presented in this case with a first-of-its-kind challenge under the Fair Districts Amendment, the trial court found that the Legislature's 2012 congressional redistricting plan was drawn in violation of the Florida Constitution's prohibition on partisan intent. We affirm that finding. We conclude, however, that the trial court failed to give proper legal effect to its determination that the Fair Districts Amendment was violated.

In reaching this conclusion, we recognize that the trial court had scant precedent to guide it in approaching the legal issues presented. And, we commend the trial court for the tremendous effort that was expended in deciding this novel challenge under the Fair Districts Amendment.

Nevertheless, we conclude that two legal errors significantly affected the trial court's determination of the appropriate legal effect of its finding of unconstitutional intent. First, the trial court erred in determining that there was no distinction between a challenge to the “plan as a whole”—a challenge, in effect, to the map produced from the unconstitutional “process”—and a challenge to individual districts. Second, the trial court erred in the standard of review it applied, which was improperly deferential to the Legislature's decisions after finding a violation of the Fair Districts Amendment's prohibition on partisan intent. Although it found the existence of unconstitutional intent, the trial court relied solely on objective “tier-two” constitutional indicators, such as compactness and the use of political or geographical boundaries, rather than on the direct and circumstantial evidence of “tier-one” unconstitutional intent presented at trial.

In other words, the trial court analyzed the Legislature's map as if it had not found the existence of unconstitutional intent, affording deference to the Legislature where no deference was due. Once a direct violation of the Florida Constitution's prohibition on partisan intent in redistricting was found, the burden should have shifted to the Legislature to justify its decisions in drawing the congressional district lines.

Relying on the finding of unconstitutional intent, the challengers have urged that the entire plan should be redrawn. Certain factors support this approach, which would require the Legislature to begin the redistricting process anew on a blank slate. For example, we are aware that the starting point for drawing the 2012 congressional redistricting map was the 2002 map, which was drawn prior to the Fair Districts Amendment with, at that time, legally permissible partisan intent. In fact, the Legislature itself had, in defending against a racial gerrymandering claim directed at the 2002 map, “stipulated” that its intent “was to draw the congressional districts in a way that advantages Republican incumbents and potential candidates.” Martinez, 234 F.Supp.2d at 1340. We also acknowledge that a three-judge federal district court panel concluded that the Florida Legislature's “overriding goal with respect to congressional reapportionment” in 2002 was to “maximize the number of districts likely to perform for Republicans.” Id. at 1300–01. These are considerations now explicitly outlawed by the Florida Constitution's prohibition on partisan political gerrymandering.

Based on the findings and evidence in this case, however, we ultimately reject the challengers' request that the entire plan must be redrawn or that this Court should, at this time, perform the task of redrawing the districts. Although we conclude that the trial court's finding of unconstitutional intent required the burden to shift to the Legislature to justify its decisions regarding where to draw the lines, we also conclude that the challengers still must identify some problem with the Legislature's chosen configuration. They did so in this case with respect to Districts 5, 13, 14, 26, and 27—showing a nexus between the unconstitutional intent and the district—as well as for Districts 21, 22, and 25, which they contended were problematic either for “tier-two” reasons or because the Legislature unjustifiably rejected a less favorable configuration.

Accordingly, while we affirm the trial court's finding that the Legislature's enacted map was “taint[ed]” by unconstitutional intent, we reverse the trial court's order upholding the Legislature's remedial redistricting plan. We relinquish this case to the trial court for a period of 100 days from the date of this opinion, with directions that it require the Legislature to redraw, on an...