When the U.S. Supreme Court ventured into the briar patch of legislative redistricting in 1962, Justice Frankfurter, dissenting, warned of “the futility of judicial intervention in the essentially political conflict of forces” that historically have driven the legislative redistricting process.
The subsequent decades have revealed that judicial intervention has been problematic. Litigation is triggered by each successive cycle of redistricting. The resolution of legal claims against districting maps has been complex, frustrating, and often unsatisfactory to all parties.
But there also have been substantial changes in the ways that districts have been drawn. One could argue, based on progress in the degree of minority representation (modest) and the degree to which population and representation align (substantial), that, for all the difficulties and ambiguities of judicial oversight of legislative districting, it has proven a worthwhile venture, especially given the reality that no other remedy of a more satisfactory character has been found.
Such a conviction inspired those, like our own League of Cities, to work to garner public support for two constitutional amendments, the Fair District amendments. The fruits of those amendments already were evident when the Florida Supreme Court threw out the first Senate district map approved by the Legislature in 2012 as patently designed to favor certain partisan and individual legislator interests.
It may be that the original adopted Senate map (which gave clear advantage to certain sitting senators by, among other things, giving them the realistic likelihood of serving 10, rather than only eight, years) simply reflected a lack of appreciation of the problem. Or it may have been a collection of individual efforts that, together, made for an obvious effort to aid incumbents. In any event, the problem was evident on a review of the map itself; intent was easily established by the numbers and lines on the page.
The true force of the amendments, if they were to be a meaningful guide to fair districting and a substantive constraint on political gerrymandering, lies in the ability to establish intent. That hurdle was overcome in this most recent round of cases, where the courts, including the state Supreme Court, determined that access to records (like emails) was both properly sought and necessary to the enforcement of the amendments’ mandates of a fair districting process.
Yesterday, the Florida Supreme Court made clear that intent mattered, and that clear evidence of intent to benefit either party or any particular incumbents or candidates would in fact invalidate a district map. In a 5-2 decision that was more courageous and more sweeping than the lower court decision (by which I do not mean serious criticism of the lower court; they were treading very new and difficult ground), the justices ordered the Legislature to draw a new congressional district map in the next 100 days.
This is what we fought for. And now, we can see that it truly was worth it.
My joy at this victory isn’t about Democratic or Republican gains or losses. Nor is it about individual members of Congress whose districts have been found to favor them unconstitutionally. My joy is neither partisan nor personal.
The citizens of Florida told the Legislature in 2010 that they wanted districts that respected them, their interests, their communities, their diversity. They made as clear as constitutional amendment language could make it that it was appropriate representation of citizens, not of the interests of elected officials and political parties, that was to be the guiding principle in redistricting. The Florida Supreme Court, by yesterday’s ruling, ensured that the force of law that should have followed that expression of citizen intent will, in fact, carry the day.