Threat to fair districts, courts

Fairness and integrity are inevitably the first virtues sacrificed when politicians expect the courts to become instruments of their own policies. It had better stop, lest Florida’s high court becomes disreputable.

Politicians usually try to be a bit coy in their dog whistles, but when Gov. Ron DeSantis sends signals about the Florida Supreme Court he’s as subtle as a foghorn.

On too many occasions to be coincidental, DeSantis has made it clear he expects the court — one he’s now packed with three more conservatives — to abandon precedents that he and the Legislature’s Republican majority don’t like. He wants the lawmakers to dish up raw meat to satisfy the court’s new appetites.

He said, for example, that he wants justices “willing to reverse bad precedent and not legislate from the bench.” To cheers at a recent Federalist Society convention, he asked sarcastically whether it’s “just a big coincidence” that “anything that had a political color to it just always happened to be decided in the way of the Democratic Party.” A majority of the justices may have been in the audience.

What he said happened not to be true, but it’s beside the point. All of Florida’s governors have had issues with the court, some more than others, but none ever put them in such nakedly partisan terms. It’s dangerous. There’s no more certain way, other than perhaps a bribery scandal, to destroy the public’s respect for the judiciary than to make it look as political as the other two branches of government. It’s an insidious threat to constitutional government. And there’s nothing conservative about a glib disrespect for precedent.

Senate President Bill Galvano, R Bradenton, seemed to be hearing DeSantis’s signals and sending one of his own when he said he may ask the new court for advice on how to carry out the two Fair Districts initiatives that voters approved in 2010. The court can’t give advice to anyone other than the governor, except in a contested case. As a lawyer, Galvano knows that, so he’s talking about some unspecified “declaratory action” to tell the Legislature “how do we best meet the requirements of Fair Districts.” As a legislator, he should not need any further help understanding those two voter-initiated anti-gerrymandering reforms. In a series of cases ending in 2015, the court told the Legislature exactly what

not to do. Galvano was a figure in the plans that the court rightly found unconstitutional.

However, it’s not likely that he really expects any advice from the court. It sounds instead like a dog whistle to the Legislature after the 2020 census to disregard those precedents and rig legislative and congressional seats for his party just like the last time. This time, the new court might let them get away with it.

And he told a Sarasota business audience that the situation invites the Legislature to push some issues “that in the past we probably wouldn’t have.” In other words, to pass legislation that might be unconstitutional.

High on the list, he made explicit, would be “some bold steps in education” and some of the ideas that Gov. (Jeb) Bush brought to the table back in the day.”

What that means is another run at pouring tax money directly into private schools, including those that promote specific religious faiths. The old court threw out that part of Bush’s education agenda as a violation of the constitutional mandate for a “uniform” system of free public schools.

That left the Legislature to subsidize private schools indirectly through corporate tax credits for scholarships, but there are waiting lists that DeSantis wants to eliminate.

The court’s new majority has appeared eagerly responsive to DeSantis’s dog whistles. Before even ruling on the merits of any case, it reversed the old majority’s decision to give Miami Beach an opportunity to defend its local minimum wage ordinance, which is more generous than the statewide minimum. Lower courts ruled it violated a pre-emption law. In rapid order, the court also dismissed previously accepted cases involving a smoking death, a dispute with a car dealership and a child molestation conviction.

They probably didn’t need any prompts from DeSantis to do that, but the timing was so tone-deaf as to make it look as if they were obeying him. What was the harm in hearing the Miami Beach appeal?

Galvano’s interest in reopening the Fair Districts issues is especially troubling.

In the last round, the Supreme Court upheld the factual findings of two trial judges and told the Legislature most emphatically what not to do. Don’t draw districts to favor or disfavor a political party or incumbent. Don’t conceal the secret schemes of Republican consultants in maps and testimony from citizens who pretend to be independent. Don’t design weirdly shaped districts without expecting them to be questioned. The consultants and their employers had fought a bitter, ultimately unsuccessful legal battle to suppress the evidence of collusion on the grounds of trade secrets. It was so damning the Senate gave up pretending that it hadn’t happened.

Despite the old court’s supposed Democratic leanings, its decisions still left the Legislature and the congressional delegation under Republican control. But the party proportions are now more nearly representative of how the people of Florida vote. Before, the GOP had 17 seats in the U.S. House, the Democrats only 10. The ratio is now 14 to 13. In the state Senate, 28 of the 40 seats were Republican. Now, 23 are held by GOP lawmakers, while the Democrats have 17 seats.

One good way for the Legislature to keep the court out of it would be to adopt Iowa’s system, which entrusts the mapmaking to nonpartisan professionals and discourages legislative amendments. It’s been the law there since 1980. The Iowa Supreme Court has never had to step in. The plans are generally regarded as fair.

Florida’s Fair Districts amendments are simply about giving the voters a fair chance.

Fairness and integrity are inevitably the first virtues sacrificed when politicians expect the courts to become instruments of their own policies. That’s radicalism, not conservatism. It had better stop, lest Florida’s high court becomes as disreputable as it was in the early 1970s. Three justices resigned under fire for their ethics. Another narrowly escaped impeachment. Galvano was in grade school then and DeSantis had yet to be born, so they couldn’t be expected to remember that shabby history. But they should try to learn it.

Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Sergio Bustos, David Lyons and Editor-in-Chief Julie Anderson.