By Dwight Slater

Thought the fight over the 2012 redistricting process was over? Think again. Not only is the fight still going, it never truly stopped. On September 5, 2012, mere months after the Supreme Court approved the Senate redistricting plan (“Senate Plan”), the Coalition (which consists of the League of Women Voters, the National Council of La Raza, Common Cause, and other groups) filed a law suit in the Circuit Court of the Second Judicial Circuit in Leon County (the “Circuit Court”), challenging the Senate Plan on constitutional grounds. The Legislature moved to dismiss the complaint, arguing that the Florida Supreme Court has exclusive jurisdiction to determine the validity of state legislative redistricting plans. Circuit Judge Terry P. Lewis disagreed and denied the motion on January 17, 2013. In the opinion, Judge Lewis found that the Supreme Court “has never held that it has exclusive jurisdiction over challenges to legislative redistricting plans.”

Undaunted, the Legislature decided to bypass the First District Court of Appeal and go straight to the horse’s mouth, and on February 14, 2013, filed a Petition for the Writ of Prohibition or for Constitutional Writ in the Supreme Court. That Petition is before the Court in Florida House of Representatives, et al. v. League of Women Voters, et al(SC13-252). In the Petition, the Legislature asks the Supreme Court to step in and stop the Circuit Court from exercising jurisdiction over the suit. The Court has yet to rule.

A Little Background

The Florida Constitution requires the Legislature to reapportion the state’s legislative districts during its regular session in the second year after every decennial census. The districts must conform to the general provisions of the United States Constitution, which set forth the one-person, one-vote standard under the Equal Protection Clause, and the specific provisions of the state constitution, requiring districts to be consecutively numbered and to consist of contiguous, overlapping or identical territory.

In 2010, Floridians passed the “Fair Districts Amendments” to the Florida Constitution, which added additional standards for reapportionment plans. Art III, sections 20 and 21, Fla. Const. Specifically, the amendments set forth 2 tiers of review for district plans, each with 3 requirements. The first tier provides that (1) districts shall not be drawn with the intent to favor or disfavor a political party or incumbent, (2) districts shall not be drawn with the intent or result of denying or abridging equal opportunity of racial or language minorities to participate in the political process or diminish their ability to elect representatives of their choice, and (3) districts shall be contiguous. The second tier lists 3 additional requirements, the compliance with which is subordinate to the first tier and to federal law in the event of a conflict: (1) districts shall be as nearly equal in population as is practicable; (2) districts shall be compact; and (3) where feasible, districts shall utilize existing political and geographical boundaries.

The Florida Constitution sets out a series of relatively short timeframes during which the state’s legislative districts must be reapportioned. The Legislature gets the first crack at it during its regular session the second year after the Census. If it fails to adopt a plan during its regular session, the Governor must reconvene the Legislature for a special apportionment session, which cannot last longer than 30 days, during which reapportionment is the sole issue addressed. If the Legislature fails again, the Attorney General has 5 days to ask the Supreme Court to do the job, and the Court has 60 days to get it done. Art III, sec, 16, Fla. Const.

If the Legislature manages to successfully adopt a plan during its regular session, the Attorney General must petition the Supreme Court for declaratory judgment as to the validity of the plan. The Court must enter its judgment within 30 days during which it must allow adverse interests to present their views. If the Court approves the plan, it becomes binding. On the other hand, if the Court finds all or part of the plan to be invalid, the Governor must reconvene the Legislature within 5 days for an extraordinary apportionment session, which cannot exceed 15 days. Within that time, the Legislature must redraw the invalid portion(s) of plan in accordance with the Court’s judgment. If it successfully adopts a revised plan, the Attorney General must send it back to the Court for review and the process starts all over again, complete with input from adverse interests. If the Court approves the plan, it becomes binding. However, if the Court also finds the revised plan to be invalid, or if the Legislature fails to adopt a plan during the extraordinary apportionment session, the Court must adopt its own apportionment plan within 60 days.

2012 Reapportionment

On February 9, 2012, the Legislature passed Senate Joint Resolution 1176 (“Joint Resolution”), apportioning this state into 120 House districts and 40 Senate districts. The next day, Attorney General Pam Bondi fulfilled her constitutional obligation by filing a petition in the Supreme Court for a declaratory judgment to determine the validity of the legislative apportionment plans contained within the Joint Resolution.

The Court allowed adverse parties, including The Coalition, to file briefs and participate in oral arguments. On March 9, 2012, the Court rendered its judgment. There was much consternation among the members of the Court as to the scope of their review – with some believing it difficult if not impossible to conduct a thorough review of the plans in light of the newest constitutional standards prescribed by the Fair Districts Amendments and their role as an appellate court not equipped or designed to take evidence or develop a record. The majority opinion acknowledged the difficulties, but ultimately rejected this notion, arguing that new technologies have increased the Court’s ability to review legislative districts, even when faced with a very limited record. However, the as the Court subsequently noted: “Based on the restrictive time frames under the Florida Constitution, together with other inherent limitations in the constitutional structure and the limited record before us, this Court announced that the review would be restricted to a facial review of the plan and that no rehearing would be permitted.” In Re: Senate Joint Resolution of Legislative Apportionment 2-B, (SC12-460).

Ultimately, the Court approved the House reapportionment plan, but found the Senate reapportionment plan constitutionally invalid. Specifically, the Court declared invalid the Senate‘s numbering scheme and eight Senate districts, Districts 1, 3, 6, 9, 10, 29, 30, and 34. It also admonished the Legislature to conduct a functional analysis of voting behavior to comply with Florida’s minority voting rights protections, to consider the feasibility of using the City of Lakeland‘s boundaries to keep that city intact, and to adopt an incumbent-neutral numbering scheme.

The Court was careful to point out that its role was not to dictate to the Legislature the plan that it would have adopted, but rather to provide guidance as to its interpretation and application of the constitutional standards. In short, the Court noted, its duty is not to select the best plan, but only to determine whether the Legislature’s plan is valid.

The Legislature reconvened by special apportionment session and adopted a revised plan on March 27, 2012. The Attorney General petitioned the Supreme Court for a declaratory judgment as to the validity of the plan. The Court again considered the arguments of adverse parties, including the Coalition, and considered alternative plans submitted by the Coalition and the Florida Democratic Party. This time, however, the Court concluded that “the opponents have failed to satisfy their burden of demonstrating any constitutional violation in this facial review,” and found the revised apportionment plan to be valid under the under the Florida Constitution.

Thereafter, the Coalition, et al, filed its suit in the Circuit Court.

The Present Fight

The present fight in the Supreme Court comes down to whether the Court’s jurisdiction over legislative reapportionment plans is exclusive and plenary – i.e., whether only the Supreme Court has jurisdictions to hear challenges to the plans; or whether the Supreme Court’s jurisdiction is limited to determining the facial validity of the plans, leaving jurisdiction over other types of challenges in the circuit courts.

In its Petition for Writ of Prohibition or Constitutional Writ, the Legislature argues that the Supreme Court has exclusive and plenary jurisdiction over legislative reapportionment and that the Fair Districts Amendments, with all the new standards, require the Supreme Court to consider certain challenges that are normally brought as as-applied challenges in the circuit court. As such, the Circuit Court cannot properly exercise jurisdiction over the Coalition’s law suit. Further, the Legislature asserts that the Coalition raised all the same arguments that it brought to the Circuit Court in the two times it appeared before the Supreme Court in 2012 as parties opposed to the House and Senate reapportionment plans. As a result, the Coalition should not be allowed to raise, the Circuit Court should not be allowed to hear, those same arguments.

The Coalition, in contrast, argues that given the time constraints and the limited evidentiary record, the Supreme Court expressly conducted a facial review of the reapportionment plans; i.e., it reviewed the plans and determined, on their face, whether they complied with constitutional standards. In other words, since the Florida Constitution sets such short deadlines, and since the Supreme Court is an appellate court, which, by design, does not take evidence, it was not possible for the Supreme Court to conduct anything more than a facial review of the plans. The Coalition therefore contended that the Circuit Court, as it did in the past, properly retains jurisdiction over as-applied challenges to the reapportionment plans. In short, the Coalition asserts that despite the facial validity of a plan in the abstract, it can still be unconstitutional as applied in the real world, and only a trial court can take the time for such facts to be fleshed out in discovery and at trial.

Indeed, both the Coalition and Judge Lewis point out that the Supreme Court’s prior opinions have held that the Court’s review is limited to facial challenges and that any as-applied challenges would have to be heard in the circuit courts.

It will be interesting to see how the Court comes down on this issue. Did the Fair Districts Amendments fundamental change the scope of the Supreme Court’s review? Did the Amendments eliminate circuit-court jurisdiction over as-applied challenges?