US House Redistricting: Florida

[jimrtex]

In establishing Congressional district boundaries:

(1) No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.

(2) Unless compliance with the standards in this subsection conflicts with the standards in subsection (1) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.

(3) The order in which the standards within sub-sections (1) and (2) of this section are set forth shall not be read to establish any priority of one standard over the other within that subsection.

[jimrtex]

In establishing Congressional district boundaries:

(1) No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.

(2) Unless compliance with the standards in this subsection conflicts with the standards in subsection (1) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.

(3) The order in which the standards within sub-sections (1) and (2) of this section are set forth shall not be read to establish any priority of one standard over the other within that subsection.

If a partisan gerrymander is subtle, and complies with sub-section (2), it would be hard to prove intent under sub-section (1).

Depends on what the standard of proof is.

[jimrtex]

Diaz-Balart and Brown have lost their ridiculous lawsuit claiming that a law that explicitly requires district boundaries to respect the VRA violates the VRA.

This quote right here is particularly disgusting:

"The people of Florida never had the power to do anything with respect to congressional redistricting"

Anyone who honestly believes that the people of the US don't have the right to establish completely reasonable rules regarding the redistricting process doesn't really believe in representative democracy.

See Justice Stevens dissent in California Democratic Party v Jones in Part II.

In a representative democracy, why is there a need for the People to legislate directly, bypassing their representatives?  That doesn't seem to be consistent with a belief in representative democracy.

[jimrtex]

Diaz-Balart and Brown have lost their ridiculous lawsuit claiming that a law that explicitly requires district boundaries to respect the VRA violates the VRA.

This quote right here is particularly disgusting:

"The people of Florida never had the power to do anything with respect to congressional redistricting"

Anyone who honestly believes that the people of the US don't have the right to establish completely reasonable rules regarding the redistricting process doesn't really believe in representative democracy.

See Justice Stevens dissent in California Democratic Party v Jones in Part II.

In a representative democracy, why is there a need for the People to legislate directly, bypassing their representatives?  That doesn't seem to be consistent with a belief in representative democracy.

Highlighted for contrast. They are very different statements. (Also, it's a dissent. Oh, and the answer is obvious: Because of gerrymandering. )

As you may have noticed, none of the litigants raised the issue of the use of the initiative.  Judges ordinarily won't rule based on issues not raised in the trial briefs.  And the other judges probably wanted to rule on the juicier details of the case (1st Amendment political associational rights is a lot more fun to argue than cogs and gears procedural issues).

In another related case, Tashjian, the issue of whether a state had to use the same electorate for congressional primaries as they used for legislative primaries was raised.  This was based on a 1940s decision that the primary was part of an election.  The case outlawed the white primary, and was one of the first cases won by Thurgood Marshall.  Justice Marshall wrote the majority opinion in Tashjian, and so was forced to acknowledge that primaries were elections.  He then wandered in circles explaining why that didn't apply to the present case.  When a Nebraska Attorney General read the opinion, he said he thought it applied to Nebraska, but that no one could be sure until a court ruled on the issue.  The rest of the Marshall opinion then dealt with 1st Amendment issues.

Justice Stevens wrote a dissent that the legislative/congressional conflict meant that the 1st Amendment issues were moot.  Justice Scalia concurred with the Stevens dissent.  But then he went on to argue the 1st Amendment issues in his own dissent.   (ie Scalia had lost the argument on 1st Amendment issues, and decided to try to derail the court on the procedural issue).

So Stevens was trying to provoke future litigants to raise the issue of the initiative process, and since he was dissenting on the 1st Amendment issue he went ahead and added it in.  Justice Ginsberg concurred in the 1st Amendment issue, but didn't join the initiative issue part of the dissent.  This doesn't mean that she didn't agree with Stevens, but simply that she didn't think the issue was relevant to that case.  Similarly, we don't know whether or not the other justices agreed with Stevens or not.

So it is clearly not a settled issue.  The closest relevant cases dealt with procedural aspects of the legislation process.  In one, the Supreme Court ruled that a gubernatorial veto meant that the legislature had not legislated - had not provided manner regulations.  In another case, there had been a referendum on a congressional redistricting plan, which the Supreme Court upheld.  But in Florida, the People were providing the content of legislation and not just involved in process.

The judge in Florida clearly didn't understand that nuance.

And there have been cases where administrative actions by the executive branch have been overturned because they were "legislating".

If one believes in representative democracy, what do they believe?   Fundamentally doesn't it mean that one believes that the government should be formed by representatives elected by the People, who then act on behalf of the People?

Hopefully, the case will get appealed.

[jimrtex]

Here we go. The State Senate's Congressional draft.

Is 21 a Collier or a Dade district?

It is pretty cool that 3 can be widened or not so that the other districts are nice whole counties.

[jimrtex]

There's no way the 3rd will be tossed if the legislature won't do it, I'm afraid.

Can you elaborate as to why not? I thought it wasn't VRA protected, and without that, it surely violates Fair Districts.

The Redistricting Litigation And Lawyer Enrichment Amendment to the Florida Constitution provides a separate state provision for racial gerrymandering.

[jimrtex]

There's no way the 3rd will be tossed if the legislature won't do it, I'm afraid.

Can you elaborate as to why not? I thought it wasn't VRA protected, and without that, it surely violates Fair Districts.

The Fair Districts Amendment has its own VRA-type language, though, that explicitly takes precedent over compactness requirements.

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Note the bolded parts. If it goes to court and the legislature justifies the 3rd district by arguing that it was necessary to prevent the "abridging of equal opportunity for racial minorities to elect representatives of their choice," then the compactness requirements would be thrown out the window for that district.

I have a tough time seeing the FL-10/11 split being protected by that though, resulting in that being tossed.

West's seat if 56% Obama probably will vote closer to a 53% Obama district as Obama overran a bit among some demographics in that area and it tends to favor GOP candidates a little more on downballot races, but that might still be too strong for West. They're probably hoping for another Republican to eventually win it. So if we get that and FL-27 and the GOP get the new seat in FL-26 it's overall D+2 with the R seats unchanged, though FL-10 could certainly flip too if not upheld. In fact even the current district would be competitive without Young, who has to go sometime.

What is your problem with 11?

There is road connectivity between Tampa and St Petersburg; Tampa and Bradenton; and St Petersburg and Bradenton.  The district is compact, and it has a substantial minority population.

[jimrtex]

Technically, of course, the issue is with FL 9 and 11 rather than 10 and 11. The 10th would have to be changed to rectify it though.
Unnecessary double county split with very very poor excuses beyond political gerrymandering. Certainly does reduce compactness.
And yeah, they jutted into Manatee as well. I don't need to verify that on a map with better color choices - I know a Manatee and Sarasota district needs to shed a tiny bit of territory, and they drew it well into Charlotte. Again, very easily avoidable, by switching around areas with the 12th, which btw is an exceedingly odd district - something does need to give around there, though.

I would like to share this document; take note especially of which options it does not pursue.

Placing one or more districts entirely in a county and having parts of 2 districts extending into other counties does not always respect county boundaries in the best way possible.  States like Ohio and Texas have formal provisions for drawing lines like you suggest, and they don't always work so well.  It seems like a good idea, but it isn't necessarily so.

Let's imagine the districts were drawn in the way you appear to want.  You slide the Pinellas peninsular district to the tip.  You have to then have the next district overlap in Hillsborough and probably chop an arbitrary piece of Tampa.  You still end up with an extra piece of Hilsborough.

And remember, the Florida Constitution says that racial gerrymandering is more important than compactness or recognizing political boundaries.

[jimrtex]

The amendment wasn't designed to reform redistricting. It was designed to spawn litigation with the purpose of moving redistricting to the Courts.

I haven't done any research on the amendment's background so I don't know if you're correct regarding its designed purpose (I wouldn't be surprised, rather, if the amendment's backers were just a bunch of well-intentioned idiots) but given how badly that amendment is written, I think you're right regarding the end result. I don't see how the Florida Supreme Court won't end up drawing the map.

The backers were the LWV, which would qualify as well-meaning; and several racial advocacy groups including the Florida NAACP, and Democracia Ahora (Democracy Now).  

When showing what they considered were bad districts, they avoided showing CD-3 or the districts along the Gold Coast.   Voters probably thought of those districts, but didn't realize that the amendment would do nothing to eliminate them.

When the legislative committee announced their statewide hearing tour last summer, these groups including the ACLU, launched a publicity campaign for the legislature to "show us your map" apparently in an attempt to build a legal case on "intent of the legislature", and accused the committee of muzzling legislators.  What actually happened was that they were interested in listening to the general public.

The Florida Constitution requires redistricting be done in the -2 year.  The legislature did deliberately call a special redistricting session in January 2012; and the Florida Constitution permits prefiling of legislation and committee hearings before a session, which is why the plans have just now been pre-released.   Any map proposed by a legislator last summer would have been idle musing of individual legislators.

The newspaper articles included quotes from Gerald Hebert (Hee-Burt, not Eh-Bear) of the "Campaign Legal Center" that hearings were dog and pony shows.  Hebert is a frequent lawyer for Democrats in redistricting cases and used to work for the USDOJ.  In 2000, he was working for Martin Frost going around to hearings in Texas pointing out how the legislature back in the 1960s had made Joe Pool run statewide in order to protect incumbents such as Sam Rayburn and Wright Patman.  This was all to establish a state policy of protecting incumbents if the court had to draw the districts.

Joe Pool had run for Congress from a district and lost.  This was quite remarkable, since he was the only Democrat to lose in Texas.  Moreover, he received as many votes as Rayburn and Patman combined.   Joe Pool was from Dallas, and at that time Dallas County was a single district, the most populous in the country at the time according to a footnote in Wesberry v Sanders with 960,000 persons.   After the 1960 census, when Texas gained two districts, rather than add districts, they were elected at large, and Joe Pool ran and won.  There is no evidence that the State of Texas forced him to run at large.

(George HW) Bush v Martin was in the courts requiring equal population congressional districts.  It was only a matter of timing that the SCOTUS ruled on Wesberry first.  So Hebert was arguing on behalf of Frost on incumbent protection, but based on the Democrats really denying voters in urban areas the right to vote, because they would vote for a Republican.  After Texas did provide equal population districts, Texas had 3 Republican Congressmen.

You can bet that Hebert will be a lawyer in the Florida case after the legislature finalizes its map and Scott signs it.

The whole purpose of the initiative was to have the Florida Supreme Court draw the map.  The LWV might have been useful idiots.

[jimrtex]

Hispanics are an ethnic minority, not a racial minority. If you recall, on the census forms this year, they even explicitly stated that "Hispanic origins are not a race." The census this year also didn't ask any data about language, so there's not even any simple quantitative way to determine anything about "language minorities."

Does this mean that Hispanics aren't covered under the FDA, unless they can figure out a way to accurately guestimate the number and locations of native Spanish speakers who speak English poorly enough to be considered a "language minority"?

Furthermore, wouldn't this mean that the state legislature somehow has to prove that "no incumbent or party was intended to benefit" from the heavily Republican and incumbent-friendly Cuban districts in Miami-Dade, since under the FRA that requirement has higher priority than abiding by the VRA?

Oh boy, it's the highway to litigation hell!

The VRA is to enforce the 14th and 15th amendments.  Congress would claim that they were ensuring "equal protection" for an identifiable class of persons (ethnic minority) against discrimination (failure to racially gerrymander) on the basis of that identification.  Since "race" and "color" are actually rather meaningless classifications, it could be argued that the 15th Amendment is really about protecting ethnic minorities, whose identity may only partially be based on race.

The ACS does include questions about language and citizenship, and is statistically reliable over a 5-year period for small areas, census tracts and block groups.  It has definitely been used in Texas for determining the HCVAP and will likely be used in Florida, especially since some groups such as Haitian Creoles and non-Cuban and non-Puerto Rican Hispanics will have extremely low citizenship rates.

[jimrtex]

Is 21 a Collier or a Dade district?

Dade.
442k Dade, 88% Hispanic, 56.8% McCain
157k Collier, 53% Anglo, 36% Hispanic, 57.8% McCain
76k Broward, 50% Hispanic, 23% Black, 18% Anglo, 35.3% McCain
19k Hendry, 54% Hispanic, 41% White, 59.9% McCain

Though they did have to pick up a pretty good (population) chunk of Collier.  

[jimrtex]

In the legally mandated Florida Supreme Court review of the finalized map, what sort of precedent/authority do they have? If they don't approve the legislature's map, can they draw it themselves, or send it back to the legislature with a list of needed changes, or what?

Florida Constitution, See Article III, Section 16

This part of the apportionment procedure was already in place.  You will notice that it specifies that reapportionment begin in the XXX2 year.   After the legislature passes a plan, the AG has to present if to the Supreme Court (in effect it works somewhat like Section 5 preclearance), if the court finds that it doesn't comply with the constitution, it gets kicked back down to the legislature for a 2nd try in which "the legislature shall adopt a joint resolution of apportionment conforming to the judgment of the supreme court".  If the supreme court doesn't like the 2nd plan they can draw their own.

The Florida Supreme Court is still part of Florida, so this final plan will still have to be precleared by the USDOJ (some counties in Florida are subject to Section 5 preclearance)

This section was only added in 1998, and while it provides some incentives to force reapportionment, it doesn't have any much in the way of standards.  It would be subject to equal protection and VRA standards, but it would require a pretty aggressive court to complain about too much deviation from the population equality, and then the legislature could just do a more extreme gerrymander.

The proponents of the redistricting amendments wanted to create an independent redistricting commission, but found that would violate a ban on constitutional amendments concerning two different subject matters (ie both reapportionment standards; and reapportionment procedures).

So what they ended up with is a set of standards that would like those that would be placed on a redistricting commission.   If it were a redistricting commission, you would try to salt the commission with persons who are susceptible to your version of fairness, and then get the staff lawyers to emphasize certain points, and keep sending in witnesses to testify about their "community" interests.

Since in Florida the legislature will be doing the reapportionment, they added "intent" standards.  When the plan goes before the Supreme Court, the lawyers for the challengers will argue for a "wisp of a possibility of an inference of intent" standard, while the state will argue for a "beyond a reasonable doubt standard".  The Supreme Court will get to determine what the People meant when they passed the measure.   The People probably thought they were getting rid of districts like FL-3 and the ridiculous districts on the Gold Coast.  But the Democrats will argue that is obviously not the case, since the People also included the race-based criteria.

Last summer, the legislature was holding hearings on redistricting throughout Florida.  Remember it was unconstitutional for the legislature to even consider actual legislation.   "Citizens" would show up and demand that the legislature "show us your plans".  Unless the lady from the ACLU was desperate and hoping one of the legislators would bring her up to his hotel room to "see my redistricting plans", they were basically building their case for proving what the "intent" of the legislature was.

[jimrtex]

Florida Congressional map precleared.

http://atr.rollcall.com/justice-department-pre-clears-florida-congressional-map/

And supported by a judge.

http://www.tampabay.com/blogs/the-buzz-florida-politics/content/judge-rejects-dems-attempt-put-congressional-map-hold-during-trial

He said that absent a determination that the map is unconstitutional "I do not have the authority to replace it with another map while the case is pending." Absent that, he said the result would be that the 2002 map would remain in effect -- a map, he said "was admittedly drawn to favor the Republican Party and incumbents."

I think "supported by a judge" is a fairly strong overstatement since he clearly believes the map is in violation of the new redistricting requirements.  I think the Dems only lost this one on a technicality.  Although it is certainly not great for the Dems this year, we'll have to wait and see how things go with the actual arguments over the map's constitutionality.

It is not clear at all from his opinion that he believes the map is in violation of the new redistricting requirements.

[jimrtex]

Florida has a comparable black population to Georgia, which of course has 4 black districts.  Or Texas, which also has 4 black districts. Or New York, which also has 4 black districts. It would be quite curious to see the legislature thus create a Florida map with only 2 black districts.

How concentrated a minority population is also has an impact on how easy it is to draw minority-majority districts.

Exactly. Without Section 5 the question of compactness for a VRA district looms large. When a minority only exists in a number of disconnected urban centers does Section 2 mandate the creation of a district where that minority can elect a representative of choice? If so, how much of a stretch is permitted to have a mandated minority district? If the Louisiana suit moves forward it may well provide an answer.

Whether is it mandated is separate from whether it is justified as a permissible choice made by a legislature. This is especially so when Florida has fewer districts of this type than other states.


A proposed New York State map drew a district connecting Harlem to areas in Westchester County in order to preserve the 4th black district. Harlem and Westchester County might be geographically closer than Jacksonville and Orlando but are certainly quite distinct.

A legislature can endeavor to do that and as long as they show that race was a factor but not the predominant factor for the district then it should be permissible. If the district is strangely shaped connecting disparate areas and race is the predominant factor then it would likely be thrown out like the NC-12 districts of the 1990s.

The Florida Constitution reiterates the federal VRA (rather than weaseling out and simply saying that federal law must be adhered to).  To diminish the ability to elect candidates of choice is the equivalent of the Section V standard.  Not diminishing the ability to elect presumably is a viable standard regardless whether maps must be precleared by the federal government or not.

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