By BRUCE COLLIER
The Florida Supreme Court has declared the revised state Senate Joint Resolution apportioning Florida’s Senate districts to be constitutionally valid. In Re: Senate Joint Resolution of Legislative Apportionment 2-B, No. SC12-460, dated April 27, concludes the second phase of the state’s constitutionally mandated decennial legislative apportionment process. The court’s opinion, 57 pages in length, includes the holding opinion (33 pages), a 17-page concurring opinion, and a five-page partial dissent.
The court’s review is required by the constitution. and the case was originally decided on March 9, 2012. In that decision, the court declared the original Senate plan to be invalid and directed the Legislature to adopt a new resolution “conforming to the judgment of the supreme court.” The House plan, reviewed by the court at the same time, was determined to be constitutionally valid and was not before the court this time.
A special legislative session was convened and the Senate revision was adopted March 27. The court was once again petitioned to make a determination of validity on the revision. In reaching its decision, the court took under advisement briefs in opposition submitted by the League of Women Voters of Florida, the National Council of La Raza, Common Cause Florida, Florida Democratic Party, and the Florida State Conference of NAACP Branches. Comments were also filed by the City of Lakeland, Florida State Association of Supervisors of Elections, and the Secretary of State. Two of these parties submitted alternative plans of their own, which the court considered.
Standards governing legislative apportionment in Florida’s districts were “greatly expanded” (per the court) following voter approval of Amendment 5 (Fair Districts Amendment) in 2010 (the amendment has been codified in the Florida constitution as Article III, section 21). The purpose of the amendment, said the court, is to “require the Legislature to redistrict in a manner that prohibits favoritism or discrimination, while respecting geographic considerations….” Districts are to follow “existing community lines so that districts are logically drawn, and bizarrely-shaped districts…are avoided.”
The new standards require a two-tiered set of requirements, with three necessary elements in each tier. Prohibited are (1) drawing districts with the intent to “favor or disfavor” a political party or incumbent, or (2) to deny or abridge racial or language minorities’ opportunities to participate in the political process or diminish their ability to elect candidates of their choice; also, (3) districts must consist of contiguous territory. Districts must, as far as practicable, (4) be nearly equal in population, (5) be compact, and (6) use “existing political and geographical boundaries.”
The revision of the invalid plan redrew eight invalid districts – 1, 3, 6, 9, 10, 29, 30 and 34. As a result of this redrawing, the boundaries of “multiple other districts” were changed, affecting 26 of the original 40 Senate districts. The state’s 40 Senate districts were renumbered, adopting a random lottery method. The City of Lakeland’s request to be kept wholly in one Senate district was granted.
In rejecting the challenges made by the various parties opposing, the court made a distinction between “ensuring compliance with constitutional requirements” and “select[ing] the best plan.” The latter, said the court, was not its duty.
The court rejected a claim by the NAACP that there was a risk of diminished ability of minority voters in several districts as simply speculation. The court also rejected several other challenges made, holding that they were barred because they could have been made in the prior proceeding, but were not.
On the issue of Districts 1 and 3 (now redrawn 1 and 2), the court had previously invalidated them. The Legislature had drawn them to create one rural and one coastal district, which the court held violated the requirements of compactness and the use of existing political and geographical lines. The redrawn districts followed municipal and county boundaries. There was no challenge to that revision. The opinion also addresses in detail individual district challenges in other parts of the state.
In its conclusion, the court held that “the opponents have failed to demonstrate that the revised Senate plan as a whole or with respect to any individual district violated Florida’s constitutional requirements.”
The concurrence made two comments, on time and on the reapportionment process itself. The concurrence characterized the time limits – in which the Legislature must make its apportionment plans (following the census) and the court must review them for constitutionality – as “limited,” adding “time is not on our side” in making a “meaningful review.” The concurrence urged the Legislature, in 2018, to consider adopting a longer time frame for a “more orderly approach.”
Considering the process of reviewing and making reapportionment, the concurrence suggests “that changes must be made to the process to ensure that the purpose of the [Fair Districts] amendment – to take politics out of the apportionment equation – can be fully realized.” The concurrence also suggests that there be a serious examination of adopting “an independent apportionment commission to oversee this inherently political task.” Other states have adopted such a system, and the idea has been advanced in Florida in the past as well.
The concurrence ends with a discussion of the difficulty of determining “impermissible intent” in apportionment plans.
The court’s ruling states that “no motion for rehearing shall be entertained.”