Legislative Failure and Legislative Retention: Why We Need Fair Districts

Legislative Failure and Legislative Retention: Why We Need Fair Districts

The Florida House and Senate begin meeting today for their third special session this year. All three are a result, to be blunt, of the failure of the Legislature to do its job.

The first special session, in June, was to pass a budget, a constitutionally mandated task. The regular 60-day session of the Legislature is designed to be sufficient for this purpose. But the Legislature couldn’t . . . or wouldn’t . . . get it done. So they had to come back for a special session to avoid a government shutdown.

In August, the Legislature met to draft and adopt a new congressional district map, after their previously-adopted map was rejected by the Florida Supreme Court. The court rejected that map because the process by which it was created flagrantly violated the Florida Constitution’s Fair Districts provisions. Even then, they failed to get the job done.

Now they are meeting to redraw the state Senate map. This redrawing is necessary because, as the Florida Senate has conceded, the current map also was drawn in violation of provisions of the state Constitution.

Any bets on the likelihood that they’ll complete this constitutionally mandated task?

Perhaps only in legislative politics can one fail consistently to do the job for which one was hired and be confident of retaining one’s employment.

Imagine, if you will, a team of ordinary employees tasked with a critically important assignment. Imagine that they fail to complete that assignment in a timely manner. Yet, against all logic, this team is able to dictate to the boss that they get overtime pay and extended deadlines for their work. Given another critical task, they fail again, this time completely; the task has to be turned over to another team.

Despite these critical failures, the vast majority of the team is rewarded by a renewal of their employment. Indeed, some of these team members receive promotions!

That’s precisely what is likely to happen with our Florida Legislature.

While government, in important respects, actually cannot run like a business, government certainly can learn from business. And in business, such persistent failure to complete critical tasks would be grounds for dismissal.

It doesn’t matter how much one dislikes other members of the team, or folks in another department with whom one is compelled to work.

It doesn’t matter that other team members or folks in that other department are rivals for positions one hopes to rise to in the future.

It doesn’t even matter if, in all honesty, the conflict with another department is about fundamental convictions about the best way to get the job done. Tasked with a responsibility and assigned to a team, one gets the job done. And if one cannot, one expects to be looking for a new job.

The reason that our legislators can fail to complete their constitutionally mandated tasks with impunity is the same reason we need (and need to defend) the Fair Districts provisions of the Florida Constitution.

Legislators can fail to fulfill their responsibilities because their districts are not competitive. Generally speaking, leaders come from safe seats . . . and there are plenty of safe seats to be found in both houses. This is not by accident, and it isn’t just for the majority party. Members of both parties benefit personally from a system designed to create districts they can win and hold. The majority party’s particular benefit is derived from making the minority party’s few safe seats very, very safe, creating more majority-leaning and majority-safe seats with somewhat smaller, but still substantial, margins of security.

Designing a map to serve one’s own interests, and those of one’s party, is what one would expect of self-interested individuals (and aren’t all of us, not just our legislators, self-interested?). Indeed, one even could argue that legislators committed to particular policies or a particular party’s philosophy, rather than to their own self-interest, would seek to adopt such maps in order to advance those good causes.

Only if the majority of legislators actually is more committed to fair representation than to anything else will the maps not be crafted to advantage certain legislators and a certain party.

Knowing ourselves, we know we need rules and boundaries to help us behave as we ought. The Fair Districts provisions do just that . . . imperfectly, to be sure, but far better than anything else we have found in the last 50 years of struggle over redistricting in this country.

This is just the first season of their effect. Most of the changes they have wrought have been wrung out of the Legislature through litigation.

I hope, however, that the next round, in 2022, will reveal that everyone has learned some valuable lessons about fairness and the force of law. I hope that the lines will be drawn in a manner that reasonably reflects the expectations of the people of Florida articulated by the Fair Districts amendments.

If that happens, I’ll be happy to see that Legislature rehired. I’d even consider giving them a bonus!


2 Responses to Legislative Failure and Legislative Retention: Why We Need Fair Districts

  • jimfrishe

    Dr. Paine:
    The software to draw the districts has been available to the general public and the media for a very long time. I challenge you to download the software and draw districts that comply with all the Florida Constitutional requirements and meet the Federal requirements of the Voting Rights Act.
    Let me know when you are done.

    Now I know you won’t do this. Neither will any of the media. The reason is it cannot be done. There will always be something that you can point to when all you have to do is find fault. For instance, Judge Lewis has ruled that the Legislature drew the Congressional lines with partisan intent. He then submitted a map to the Supreme Court whose authors admitted that it was drawn by a Democrat consulting firm and favored Democrats, thereby, violating the Fair Districts Amendment.
    By the way, who gets to define “Fair”? Beyond one man, one vote, what would you include in the definition?

    • Dr. Scott Paine

      Thanks for the reminder that we, too, can take a crack at this.

      Your criticism of critics is unfair. We don’t demand that citizens or reporters actually work through the entire budget process before they are permitted to criticize the budget, nor that they have an alternative plan fleshed out (in detail) before criticizing the Affordable Care Act.

      The standard is not, “can you do better?”, but “can you see a problem you’d like your elected officials and professional staff to address?” Our representatives and our professional civil employees are elected or hired to do this work. If they have done it well, they can justify their decisions. And we, if we are fair-minded, can appreciate their justification. In the case of the Congressional and Senate redistricting processes, our elected officials could not provide such a well-reasoned justification.

      In the case of the Congressional and the Senate district maps, moreover, the standard that was violated was one of intention, not simply result. The Fair Districts amendments do not require that the maps be drawn so that they do not have the effect of favoring individuals or parties (which would be impossible), but that they not be designed with the intent to do so. What was demonstrated quite convincingly in court was that such illicit intentions played a significant role in the redistricting process.

      Can that standard be met? Of course it can.