Trimming the Serpent’s Tail

Trimming the Serpent’s Tail

On day one of the Legislature’s special session to redraw the congressional district map for Florida, identical draft maps were presented to both chambers. Next step: committee hearings.

I don’t believe there is anything nefarious about the swift emergence of the new districting plans. The leadership of the Florida House and Senate knew that there was a very real possibility that they would be compelled to redraw the maps. I suspect that they also knew where the vulnerabilities lay in the contested districts; they probably had a plan for revising the other districts that had been attacked by plaintiffs, in case those, too, were rejected.

As things have turned out, the Legislature only needs to fix two districts. The proposed map does so by making modest changes in them and in five other districts. Because, after all, this is a zero-sum game. If one district sheds a neighborhood, another district has to pick it up. Populations need to be held relatively equal across all districts. A cascade effect is, to some extent, inevitable.

On balance, the changes are being described as small . . . “tweaks,” the Associated Press story called them.

This is precisely where things get interesting.

Judge Terry Lewis’s opinion in support of his decision to send the map back to the Legislature for swift action was scathing, but much of that heat was devoted to the process. That only two districts ended up being found to violate the Florida Constitution’s Fair Districts provisions might even suggest that the map wasn’t as bad as it might have been . . . just bad enough to require a little corrective action.

If that reading is correct, then a “tweaked” map will do.

On the other hand, so much of the discussion has focused on Representative Corrine Brown’s serpentine 5th district (described by some as a “poster child” for gerrymandering, by others as an important step toward ensuring adequate representation of African-Americans in the Florida congressional delegation) that one must pause at the thought that it will continue to slither its way through multiple counties . . . just one less than before.

The watershed in legislative redistricting occurred in the 1960s with a series of U.S. Supreme Court decisions (most notably Baker v Carr) that compelled the states to live by the implicit meaning of the 14th Amendment’s “equal protection” clause.

(Interestingly, these decisions also compelled states to live by the explicit language of nearly all state constitutions at the time, which required decennial redistricting . . . something almost all state legislatures had ignored for decades).

Once the courts entered into the fray, insisting that the way legislative districts were drawn affected the constitutional rights of citizens, the previously entirely political process also became a judicial process.

Not only did we as a society (through legislation as well as judicial decision) conclude that each person’s vote should weigh equally, we also insisted that groups of citizens’ votes ought to weigh proportionally in the process. That not only meant relatively equal populations for districts; it also meant that “communities of interest” (e.g., minority groups) had to be given the opportunity to be represented by individuals from their community. Hence the emergence of “minority access” districts.

The politics of the process never was removed from the process. District lines affect the fate of individuals and the chances of parties for power.

In Florida as elsewhere, the political realities created odd bedfellows. The present controversy of District 5, for example, unites nonpartisan groups like the League of Women Voters and the Florida League of Cities (two of the groups that advanced the Fair District amendments in the first place) with very partisan Democratic organizations. On the opposing side are the Florida House and Senate (both overwhelmingly Republican, of course) united with the NAACP.

If you haven’t been following all this closely, you can be forgiven a look of stunned surprise.

As the 2012 presidential election made abundantly clear, nearly every major ethnic minority group leans toward the Democratic Party. In order to create minority access districts, one reasonably would draw lines that concentrate members of a particular minority in particular districts, giving them a plurality or even a majority of the registered voters.

Along the way, it typically isn’t difficult to create districts that are filled with Democrats, well in excess of a majority, all in the name of ensuring minority representation in the U.S. House. It’s called “packing,” and it works. Pack the Democrats in a few districts, and one creates many more Republican “access” districts. The strategy is at least partially responsible for the overwhelming Republican majority in the state Legislature today, as well as the large majority in our U.S. House delegation.

The question that will come back to Judge Lewis in a few days is this:

Can District 5 be legitimately defended as necessary for minority representation, even if/when it seems clear that its particular contours create a more favorable environment for Republicans in multiple adjacent districts? Was the fundamental problem more one of process than product, and a “tweak” to District 5, a trim of the serpent’s tail, is sufficient to restore the proper order under the Florida Constitution?

I’m jumping the gun a bit here, of course. The Florida Legislature has to approve the new map before Judge Lewis gets to review it. But given the way our Legislature operates, given the tight time frame, and given the legal hurdles ahead, I think the map’s passage is a foregone conclusion.

What is less clear is what happens after that.

2 Responses to Trimming the Serpent’s Tail

  • Jim Frishe

    Scott:

    You still miss a very important point – Under the “Fair Districts” amendments, the electoral results of redistricting may not be considered EXCEPT in the case of minority districts. To consider the voting makeup of a district other than a minority access district is to violate the constitution. The impact on neighboring districts may not be considered in terms of potential electoral outcomes. Every time one of the plaintiffs raises that issue, they completely destroy their credibility in regards to the constitution. The amendments forbid favoring one political party over another.
    The only thing that can be considered along those lines is when a minority access district is considered. Even then, the party of the minority is irrelevant to the constitution. Only the ability of the minority to elect a member of their community can be considered.

    Talking in terms of partisan impact is exactly what the “Fair Districts” amendments were designed to stop. We went through extensive legal briefings on the language of the amendments. The record is clear that partisan electoral effects were never allowed to be considered in the decisions that were made. That is why members of the Legislature ended up in the same districts in some areas.

    Judge Lewis may not like the electoral outcomes, but his decision has to be based on the law itself. Because of the failure of the media to properly present this issue, there will, most likely, be anguished cries and gnashing of teeth, but the Florida Constitution is clear. Electoral impact may not be considered.

    You should probably file this under: Be careful what you wish for…….. Because now that it is in the Florida Constitution, it will be hard to change.

    • Dr. Scott Paine

      I don’t think it is correct to say that partisan composition and electoral outcomes cannot be considered except in the case of minority rights concerns. If it is established that the legislature intended a partisan/incumbent advantage/disadvantage, the map must be redrawn. It would seem at least plausible, at this juncture, that the judge, having ruled that the Legislature’s intentions were in violation before, might require a manifest demonstration of more equitable intent in the actual configuration of the districts and their likely electoral outcome. It’s a little like being under surveillance (a monitor anklet, for example) as a condition of one’s freedom when one has been convicted of a crime. One’s criminal intent no longer has to be proven; it is sufficient that one is in the wrong place at the wrong time.

      In short, I think Judge Lewis is on solid ground in applying a likely electoral outcome standard, now that inappropriate intent has been established.

      Scott

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