The Florida Legislature this week began its special session to redraw our state’s congressional district boundaries, responding to the decision of the state Supreme Court last month that eight of the districts’ boundaries had been drawn in violation of the state constitution. As has been discussed previously here and elsewhere, what empowered the court and compels the Legislature to take remedial action is the Fair Districts amendment that forbids drawing districts that ignore natural and political boundaries, as well as forbidding drawing districts with the intent to advantage individuals or particular political parties.
At the end of a long “day” of lawsuits, procedural motions, trials and deliberations (not to mention an $8 million price tag coming out of taxpayers’ pockets, and that’s just the attorneys’ fees to defend the maps), the maps will change. And with the maps, it is likely there also will be changes in Florida’s congressional delegation, both in terms of individuals and in terms of the partisan mix.
It’s easy to understand how individuals might be affected. Incumbents could end up in the same district and have to run against each other. Alternatively, an incumbent could be drawn out of a district that had favored his/her personal background and connections into one where most citizens would be unfamiliar with him/her. Lots of possibilities.
But on the partisan side, it is less clear why we should expect the partisan balance to change . . . unless, of course, the lines actually were drawn (as the court concluded) to favor one party, as well as individual incumbents of both parties.
Which, of course, they were. The evidence of partisan manipulation was so blatant that a super-majority of the justices not only ruled the map unconstitutional, but did so with a blistering majority opinion.
In explaining their decision, the majority opinion states:
The acceptability of partisan political gerrymandering in this state dramatically changed in 2010. With “fairness” as its “focus,” the Fair Districts Amendment now “expressly prohibits” redistricting “practices that have been acceptable in the past, such as crafting a plan or district with the intent to favor a political party or an incumbent.” Apportionment I, 83 So. 3d at 605, 607, 616. These “express new standards” thus afford Florida citizens “explicit constitutional protection” under article III, section 20, of the Florida Constitution, “against partisan political gerrymandering.” Apportionment IV, 132 So. 3d at 138-39.
Gerrymandering is nothing new. The name itself goes back to the earliest days of our Republic.
But with increasingly sophisticated tools and increasingly rich sources of data, it has become quite possible to design maps that vastly enhance the influence of a particular party (in Florida, that would be the Republican Party, but Democrats are equally guilty of these practices where they have more power). With increasingly polarized parties, the traditional remedies of voting out the offending legislators simply lack the potency required to cure the contemporary disease.
Which is why Floridians amended the state constitution to mandate a notion of fairness in districting that respected existing boundaries (natural and political) and that prohibited explicitly crafting districts in the interest of a party or individual.
The court’s inquiry into the inner workings of the Legislature on redistricting is perhaps the element of these cases that has been found to be most troubling. But a general principle of legal interpretation is that one must give force to every word and phrase, assuming that, if it is the law, it is there for a reason. Only when terms cannot be reconciled, when the law is inherently self-contradictory, may one set aside one portion in favor of another.
No such ambiguity is present in the Fair Districts clauses to the Florida Constitution. They speak explicitly of “intent” when it comes to partisan maneuvering. Indeed, the explicit and exclusive use of intent (as opposed to “effect,” language which does appear for protection of the rights of minorities) compels the courts to examine what was said as well as what was done. Hence the inquiry into emails and memos and the directive to conduct the current process in the open.
On the face of the map alone, it is true, intent was not hard to discern. What the correspondence revealed was the lengths to which the Legislature was willing to go to achieve its intentions while claiming to be honoring the will of the people.
Of necessity, the new map produced will have the effect of benefiting some incumbents and hurting others. Of necessity, it will have the effect of improving the chances of a particular party’s candidate in a particular part of the state, and diminishing the chances of other parties’ candidates. That cannot be avoided.
Nor can we expect that legislators will be entirely oblivious to these effects. They are, after all, politicians. Politics is their art; many are truly master craftpersons.
What our state constitution now guarantees us is that there must be good reasons for drawing the lines the way they are drawn that are not partisan or personal in character. That’s the best we can hope for . . . and it is proving enough to begin to forge a new era of representation in Florida.