Doing Redistricting Over

Doing Redistricting Over

This week will witness a rather unusual event in Florida government: an August special legislative session.

A memo issued Monday announces that the Florida House and Senate are calling themselves into special session to address what Speaker Weatherford and President Gaetz called “the Court’s limited concerns” about the congressional district map produced by the Legislature after the 2010 census.

Well, yes, limited in the sense that only two congressional districts were found to be unconstitutional (under the state constitution) out of the 23 we have. If this was an assignment for my class, at 91.4% success, I’d give it an AB . . . maybe even an A.

Except . . . that’s the grade the product would earn. But process also matters.

I have a very strict standard when it comes to what in higher ed is called “academic integrity.” I expect my students to do their own work unless I expressly authorize collaboration (which I do at times). I expect my students to disclose the sources of their information and ideas, giving credit where credit is due, according to certain standards established in the field. Those are basic, and obvious, expectations of integrity.

According to Judge Lewis, some of those basic, and obvious, expectations with regard to redistricting were violated by the Florida Legislature in the crafting of the current congressional district map.

The best possible outcome for a student who had committed such offenses in my classroom would be a “do-over” with strict additional requirements to ensure the process, as well as the product, was appropriate to the task.

To the Legislature’s credit, this appears to be precisely the approach the leadership has adopted (now that Judge Lewis has compelled them to redo the maps). Official directives have gone to every House and Senate member about records preservation. The list is exhaustive . . . but nothing any elected municipal official hasn’t been expected to do for at least a few years.

The Legislature’s challenge is a complicated one. It is likely that many (most?) legislators will wish to fix the problem with the minimum of effect on other districts. But any effect will throw the elections for those districts into disarray as well. Given the criticisms leveled by Judge Lewis against these two districts, I find it highly improbable that their defects can be remedied without changing other district lines. The more districts at risk, the more personal ambitions that will be affected, and the greater the difficulty of resolving the controversy.

That makes the August 15deadline all the more daunting. Meeting that deadline will demand of House and Senate members tremendous focus and a willingness to seek the best viable solution rather than pursue any particular personal agendas (which was, after all, the point of the Fair Districts Amendment in the first place).

Either that, or it will require the exercise of considerable political “clout” by the powers that be.

When and how the actual elections will take place for these congressional districts remains unclear. Everyone agrees that there isn’t an obvious “best” solution. Every alternative does harm in some way to the integrity of a voting process that should ensure equal rights for all citizens.

Which is a variation of the lesson I try to teach my students when they stray into the realm of unethical conduct.

We ought to want to do what’s right because . . . well, because it’s the right thing to do.

But if we don’t make the effort to do it right, we’ll have to figure out how to do it over

2 Responses to Doing Redistricting Over

  • Jim Frishe

    A few points to consider.
    “;…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;”

    This is the text of the Florida Constitution that was a top priority of the redistricting committee. It is a lawyers delight because, if you increase or decrease a protected minority population, you open yourself up to charges of violating the constitution. This takes precedence over political subdivision boundaries and compactness. Everyone wants neat districts that ignore racial or language minority population concentrations, but the Florida Constitution requires that they be considered. Voting patterns must be ignored. The flaw in the constitution is that it requires a judge to determine intent If the Legislature protects a racial minority, that just happens to vote 95% for one party, was their intent to protect the racial minority or effect the outcome of future elections? If they had been dispersed among neighboring districts, the Legislature would have been accused of failing to protect them , as required by the Florida Constitution as well as the Federal Voting Rights Act.

    Everywhere public hearings were held, minority groups urged the Legislators to protect their communities. “Give them a chance to elect one of their own” was heard more than a few times. Others wanted them dispersed to be reliable votes for neighboring districts but not have enough voting strength to elect one of their own.

    The judge apparently determined, based on the involvement of political consultants input, that there was some intent to favor a party or incumbent in two districts. Interestingly enough, the Legislature asked for input from EVERYONE, including the plaintiffs, who regularly refused to supply any. Last I checked, political consultants do not surrender their rights to participate because of their chosen profession.

    The last point that will have to be considered is the Federal Voting Rights Act (VRA). Judge Lewis ruled on the basis of the Florida Constitution. The VRA however, has a phrase regarding majority minority districts that trumps that: Redistricting “..may not retrogress” from the current representation. In short, if the Legislature dispersed Rep. Brown’s constituents into neighboring districts and she had no majority minority seat to seek, they would have violated the VRA and the plan would have been rejected by the Justice Department.

    Frustrating, isn’t it. One level of government says one thing and a higher level says another. The press has a field day because you are wrong no matter which path you take. And of course, the lawyers make a lot of money trying to win in court what they cannot win at the ballot box.

    Are there safe districts? Of course there are. But, unless you disperse the concentrations of one voting block among the others, it cannot be avoided. That is one reason Fair Districts supporters can not achieve their goals. They want to effect the outcome of elections. The amendment they champion specifically forbids that type of redistricting.

    • Dr. Scott Paine


      The language with regard to racial and language minorities does not prohibit a change in the percentage of a particular district that is of a particular racial or language minority. What it prohibits is the diminution of the ability of that minority to elect a representative of its choice.

      The ‘retrogression’ standard, as explained by the U.S. Department of Justice (which has the duty of pursuing investigations on this point) “does not rely on any predetermined or fixed demographic percentages at any point in the assessment.” In other words, merely changing the percentage of a particular minority in a particular district does not constitute a violation. Nor does preserving a district that is a minority access district violate the standard, even if a majority minority district could be formed. DOJ performs a “functional analysis of the electoral behavior” of voters in the proposed district to determine whether the new redistricting plan retrogresses minority opportunities. It seems at least reasonable to suggest that an incumbent member of the US House who is a member of a racial minority and who was elected in a minority access district gives good evidence that the district is functionally one in which a racial minority can elect a representative of its choosing. As long as the district remains minority access in character and is not otherwise profoundly altered, it would seem unnecessary to add minority residents to the district to meet the federal standard (or the state standard, which echoes the federal on this point). So the argument that the Florida legislature was preoccupied with concerns about this standard seems somewhat questionable. Obviously, Judge Lewis thought it was, based on the evidence before him.

      None of which denies your fundamental observation that the whole process of redistricting is a lawyer’s field of play. Legislatures will be challenged on their redistricting maps almost without regard to what they do. The important question is, will those challenges be successful? In this case, the answer was yes.

      Thanks for your comments!


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