State Lawmakers To Begin Redrawing Unconstitutional Congressional Maps This Week

State Lawmakers are going to start redrawing the state's flawed congressional districts. (Photo via MyFloridaHouse.gov)

State Lawmakers are going to start redrawing the state’s flawed congressional districts. (Photo via MyFloridaHouse.gov)

By Ashley Lopez
Florida Center for Investigative Reporting

Circuit Court Judge Terry Lewis ruled last Friday that members of the Florida Legislature need to immediately redraw two congressional districts he deemed unconstitutional. Lewis ordered state lawmakers to submit a revised map by Aug. 15. He also ruled the secretary of state propose a special election plan for the affected congressional districts.

Last month, Lewis ruled the Florida Legislature broke state laws when drawing up congressional districts in 2012.  According to Lewis, lawmakers facilitated a “secret, organized campaign” wherein partisan political operatives influenced the redistricting process in violation of the Fair Districts Amendments, which mandates the state draw districts without political party favoritism.

A lawsuit alleging lawmakers violated those constitutional amendments was filed by the League of Women Voters, a long with a coalition of voters in the state.

There was initially some dispute about whether the same lawmakers that broke the law when drawing those maps should be tasked with drawing the new maps. Plaintiffs in the lawsuit said they should not. However, Lewis ruled they should.

Although he ultimately sided with the plaintiffs by ordering a quick turn-around for these maps, the judge also agreed with defendants on some points.

According to The Miami Herald/Tampa Bay Times:

Lewis agreed with the Legislature’s lawyers and concluded “there is just no way, legally or logistically, to put in place a new map, amend the various deadlines and have elections on November 4th as prescribed by Federal law.”

While he acknowledged that there is no easy solution to fixing the map that violates the state’s Fair Districts rules, he suggested “it might be possible to push the general election date back to allow for a special election in 2014 for any affected districts.” Download Romo.Remedy Order.August 1, 2014 (1)

Lewis ruled on July 10 that the congressional redistricting map drawn by the Republican-led legislature included two districts drawn with illegal partisan intent which makes the entire map unconstitutional. His order on Friday requires the Legislature to modify the two districts, but it is estimated that could affect the lines of as many as 10 districts that touch them.

Lawmakers could have appealed the decision, but they decided to move forward with the court’s orders.

The Herald/Times also reports:

Florida legislative leaders announced Sunday that they will bring lawmakers back for a weeklong special session on Thursday to revise the congressional redistricting map declared invalid by a state judge.

…In an email late Friday to Senate members and staffers, Senate President Don Gaetz, R-Niceville, said the leadership had not decided how to respond to Lewis’ ruling but asked everyone to “keep and do not delete” all redistricting records in light of the pending litigation over the districts.

Gaetz’s email defines documents that must be preserved as “all records related to the enactment of new congressional districts, including copies of unfiled draft maps, unfiled draft bills and amendments, correspondence, emails, texts and other electronic communications related to the enactment of new congressional districts, whether sent or received on official Senate accounts or devices or personal email accounts or devices.”

House deputy general counsel Steve Godwin sent a similar email late Friday with the same directions to House members and staffers. House members were informed in an email from House chief of staff Kathy Mears on Sunday that they would be given more details on Monday.

Lawmakers have argued that changing the current election schedule would be a big problem. Already, thousands of absentee ballots have been mailed and cast– and the primary election is just around the corner.

While Lewis’ order could mean some districts will have special elections, possibly after the Nov. 4th, general election. However, nothing is final. According to the Herald/Times, Lewis also “called for an Aug. 20 hearing to allow lawyers for the plaintiffs in the case, a group of voting organizations, and the defendants, the GOP-led Legislature, to present their arguments on what the court should decide.”

The hearing will be just six days before the primary election.

As The Washington Post’s Wonkblog points out, the state is in a pretty precarious situation here.

Via the Post:

“The court is wrestling with a lot of bad choices,” says Justin Levitt of the Loyola University Law School. “The current map is invalid, and trying to force through a new map by November creates a lot of chaos no matter how it’s done.  The court’s order today is a last-ditch attempt to see if everyone can agree on a new, valid, November map … but that agreement seems quite unlikely.”

…According to Levitt, the most likely immediate outcome will be an appeal of Lewis’s order. “That’d have the effect of further running out the clock on getting a new map before November,” he says. He thinks it unlikely that “the legislature comes back with a valid remedial map and the election officials give it a thumbs-up.”

Assuming that the legislature doesn’t come back with a valid map, Levitt lays out the following four scenarios:

1. If there is no valid legislative map in time, it seems like Lewis really doesn’t want to draw maps himself.  It’s possible that he’d do so (and his order gives him a bit of cover), but he’s running out of time himself, and I don’t think he’s got a mechanism in place to do it right.

2. He could order the elections to go forward under the current (invalid) maps, just as an interim measure (which wouldn’t be unprecedented).

3. He could order the elections to go forward for all districts other than 5 and 10, and hold those elections for a special election later, whenever the legislature does produce a valid map (his order gives him cover for that, as well).

4. Or — truly longshot — he could order the elections to go forward under the 2012 maps, with Florida’s 2 new congressional seats distributed at-large.  (2 USC 2a(c)(2) is the authority … and I’m not aware that it’s ever been done, but the statute seems fairly straightforward.  The Supreme Court last addressed the statute in 2003, but mostly as an aside).

— Justin Levitt

The Herald/Times also points out that as of now, there’s “no indication [as to] whether political consultants or the public would be allowed to provide input into the redistricting session this time.”

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