Sun Sentinel Palm Beach Edition
GOP power grab imperils future of Fair Districts
State courts would lose all jurisdiction over congressional redistricting if a developing Republican legal strategy prevails. The courts could not overturn gerrymanders or adopt maps when a governor and legislature deadlock, as is happening in Florida. One party’s Legislature could all but banish the other from the state’s delegation.
The radical “independent legislature” theory is a prescription for tyranny that rests on a tortured interpretation of the U.S. Constitution’s elections clause (Art. I, Sec. 4). Proponents of the theory say the elections clause allows only Congress to check how legislatures decide the “times, places and manner” of electing senators and representatives.
The elections clause argument, which North Carolina Republicans are pursuing at the U.S. Supreme Court — where three and perhaps four of nine justices already favor it — is a particular threat to one of the two Florida Fair Districts initiatives, Amendment 6, that voters wrote into the state constitution in 2010.
The other initiative, concerning how the Legislature redistricts itself, would not be affected directly by that case, but Gov.
Ron DeSantis is attacking it from another direction, and the Tallahassee tea leaves are ominous.
The case before a circuit court would be appealed, however it is decided, to a state Supreme Court dominated by DeSantis’ three right-wing appointees. The chief justice-designee, Carlos Muñiz, was once briefly policy director for the Republican Party of Florida.
In U.S. District Court in Tallahassee, where a federal case is pending, one member of the three-judge panel is Allen Winsor, who was a state appeals court judge when President Trump put him on the federal bench two years ago. Earlier, in private practice, Winsor and his firm represented the Florida House when it and two members of Congress sued in 2010 to have Amendment 6 overturned. Winsor signed most of the pleadings.
The code of conduct for federal judges doesn’t compel judges’ recusals in cases in which they were not involved as an advocate, even if it is similar to ones in which they were. It does call for disqualification, however, when “the judge’s impartiality might reasonably be questioned.” Plaintiffs have not asked Winsor to step aside, but he should consider it.
Citizens and voting advocacy organizations filed the state and federal lawsuits asking the courts to design Florida’s 28 congressional districts, up from 27 after the census. Impasse is likely because DeSantis intends to veto the Legislature’s congressional map, which treated the minority party better than he would. There don’t appear to be enough votes to override a veto.
DeSantis, who is more militantly partisan than any previous Florida governor, wants to erase two of the four districts that elected Black Democratic representatives and increase the Republican portion from 16 of 27 seats to 18 of 28.
He claims the existing map is an unconstitutional racial gerrymander under the
U.S. Constitution and that the Fair Districts initiatives violate the equal protection clause. He hasn’t raised the independent legislature theory — not yet — but is expected to.
It wouldn’t be the first time it menaced fair districting in Florida.
The votes had barely been counted in 2010 when the Florida House and two members of Congress filed suit in U.S. District Court at Miami, intending to overturn Amendment 6 before it could guide congressional redistricting after the decennial census. They lost.
U.S. District Judge Ursula Ungaro ruled that the amendment was as valid and binding on the Legislature as if lawmakers, rather than a citizen petition, had written it. Moreover, the elections clause did not apply. She found that the Constitutional Convention of 1787 had debated only whether Congress should have any power over districting, not whether legislatures could ignore their own state constitutions and courts.
The 11th Circuit Court of Appeals upheld her decision in every respect, noting that at least 10 other state constitutions had similar instructions on how or how not to design districts.
The court also said the factors in Amendment 6 “have been for many years commonly considered by legislative bodies in congressional redistricting and long accepted by the courts as being lawful and consistent with the powers delegated to the state legislatures by the United States Constitution.”
If the two Congress members and the House had their way, the court added, “there would be no clearly explicated factors” for a legislature to consider. “This is plainly wrong.”
It would still be plainly wrong.
The language DeSantis aims to erase provides that no district may be drawn to favor or disfavor a party or incumbent, or with the “intent or result” of “denying or abridging” the opportunity of racial or language minorities to participate in the political process or to “diminish their ability to elect representatives of their choice.”
That would make his redistricting scheme unconstitutional in the eyes of any fair-minded court. Whether the courts are still fair-minded is the question. How they rule on the pending cases will answer it. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.