UPDATED: FL: the ultimate legal fight in 2011 redistricting

On Tuesday Florida voters approved “Amendment 6,” a constitutional amendment aimed at ending partisan gerrymanders of Florida’s congressional districts. Its passage sets up what may be the ultimate legal battle of the 2011 redistricting cycle.

Unlike Proposition 20 in California and Proposition 106 in Arizona, Amendment 6 did not remove the redistricting authority from the state legislature. Instead it wrote criteria into the state constitution for the legislature to follow when it redraws the congressional district lines. The ultimate legal battle in 2011 will be over the scope of the Florida courts role in judging whether the legislature follows those criteria.

In June of 1980, California voters approved Proposition 6, which wrote redistricting criteria into the California state constitution but left the line-drawing in the hands of the legislature (just as Amendment 6 does in Florida). In 2008, Proposition 11 added to those criteria, but also left control of congressional redistricting in the hands of the legislature. The looming problem in Florida is foreshadowed by what happened in California: in Nadler v. Schwarzenegger 137 Cal. App. 4th 1327 (2006), the California courts ruled that implementing those criteria were the responsibility of the legislature. The Court declined to get involved in the question of judging whether the legislature’s decisions appropriately followed the voter-approved criteria. (The Rose Institute has previously written more on this here.)

In Arizona, the state Supreme Court similarly deferred to the legislative body’s decisions on redistricting in Arizona Minority Coalition for Fair Redistricting v. Arizona Independent Redistricting Commission, though in Arizona “the legislative body” is the Arizona Independent Redistricting Commission.

Those are two fairly clear precedents in favor of deference (and against the hopes of the authors of Florida’s Amendment 6). But Florida adds another twist to the discussion. In Florida, the state Supreme Court, not the Governor, has the ability to veto state legislative redistricting plans. In the past, the Court’s review was generally limited to confirming a plan’s population balance among the districts. On Tuesday, Florida voters approved “Amendment 5,” establishing criteria for legislative redistricting. It is pretty clear that Amendment 5’s criteria will now be used by the Court in its review of the legislative redistricting plans. But the Florida constitution does not give the state Supreme Court a similar role in congressional redistricting. Florida adopts its congressional plan as a normal bill, requiring passage by both houses of the legislature and either a gubernatorial signature or a legislative over-ride of a gubernatorial veto.

This leads us to the ultimate legal fight in 2011 redistricting: will the state courts weigh in on the legislature’s implementation of Amendment 6’s criteria? Will the Florida courts follow the lead of their counterparts in Arizona and California and stay out of this “political thicket”? Or will the courts, perhaps citing the precedent of Florida’s unique constitutionally-required court involvement in redistricting the state legislature, choose to become central figures in this process?

P.S. This post obviously focuses on the big strategic issue of the Florida court’s role in redistricting decisions. The entirely separate legal battle over the definitions of the criteria, the measurements of the criteria, and the limitations on the realistic ability to implement the criteria is a topic for another post.

11/4/2010 update:

There’s an interesting timing element to this debate: the state legislative plans automatically go directly to the State Supreme Court. The Court is required to approve or reject them on a very tight time frame (I don’t recall offhand exactly how tight). In this debate over the state legislative districts, I would expect the Court to either (1) declare the Amendment 5 provisions non-justiciable or (2) discuss the “proper” consideration of them in its approval/disapproval of the state legislative plan.

The Congressional plan, in contrast, does not automatically go directly to the Florida Supreme Court. It will have to go through the lower courts. There is a decent chance that the lower court will simply await the state Supreme Court’s ruling on the legislative plan before proceeding on the congressional plan. (Anyone with more detailed knowledge of the Florida timing is encouraged to weigh in on this.)

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