The League of Women Voters of Florida, etc. v. Ken Detzner Opinion

Supreme Court of Florida
____________
No. SC14-1905
____________
THE LEAGUE OF WOMEN VOTERS OF FLORIDA, etc., et al.,
Appellants/Cross–Appellees,
vs.
KEN DETZNER, et al.,
Appellees/Cross–Appellants.
[July 9, 2015]
PARIENTE, J.
In this appeal involving legal issues of first impression, we review a trial
court’s finding that the 2012 “redistricting process” and the “resulting map”
apportioning Florida’s twenty-seven congressional districts were “taint[ed]” by
unconstitutional intent to favor the Republican Party and incumbent lawmakers.1
1. This Court previously considered two issues arising out of the pre-trial
discovery process—one concerning the legislative privilege and the other
concerning the discovery of documents in the possession of non-party political
consultants—and released three opinions while the litigation was pending. See
League of Women Voters of Fla. v. Fla. House of Representatives (Apportionment
IV), 132 So. 3d 135, 138 (Fla. 2013) (addressing and largely rejecting claims of
legislative privilege); League of Women Voters of Fla. v. Data Targeting, Inc.
(Apportionment V), 140 So. 3d 510, 514 (Fla. 2014) (permitting the use during
trial of evidence obtained from non-party political consultants, pending further
Cognizant that this Court’s role is not to select a redistricting map that performs
better for one political party or another, but is instead to uphold the purposes of the
constitutional provision approved by Florida voters to outlaw partisan intent in
redistricting, the crux of what we must decide is whether the trial court gave the
appropriate legal effect to its finding that the Florida Legislature drew the state’s
congressional districts in violation of the Florida Constitution.
Added to the Florida Constitution in 2010, the Fair Districts Amendment
sought to eliminate the age-old practice of partisan political gerrymandering—
where the political party and representatives in power manipulate the district
boundaries to their advantage—by forbidding the Florida Legislature from drawing
a redistricting plan or an individual district with the “intent to favor or disfavor a
political party or an incumbent.” Art. III, § 20(a), Fla. Const. “The desire of a
political party to provide its representatives with an advantage in reapportionment
is not a Republican or Democratic tenet, but applies equally to both parties.” In re
Senate Joint Resolution of Legislative Apportionment 1176 (Apportionment I), 83
So. 3d 597, 615 (Fla. 2012). As observed when a three-judge panel of a federal
district court examined Florida’s last decennial congressional redistricting plan in
appellate review); Bainter v. League of Women Voters of Fla. (Apportionment
VI), 150 So. 3d 1115, 1117 (Fla. 2014) (upholding trial court ruling ordering
production of documents in the possession of non-party political consultants).
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2002, the “raw exercise of majority legislative power does not seem to be the best
way of conducting a critical task like redistricting, but it does seem to be an
unfortunate fact of political life around the country.” Martinez v. Bush, 234 F.
Supp. 2d 1275, 1297 (S.D. Fla. 2002).
With the voters’ approval of the Fair Districts Amendment, that unfortunate
fact of political life was banned in Florida. Our citizens declared that the
Legislature must “redistrict in a manner that prohibits favoritism or
discrimination.” Apportionment I, 83 So. 3d at 632. And the Eleventh Circuit
Court of Appeals similarly declared that “[f]ar from dictat[ing] electoral outcomes,
the provision seeks to maximize electoral possibilities by leveling the playing
field.” Brown v. Sec’y of State of Fla., 668 F.3d 1271, 1285 (11th Cir. 2012)
(internal quotation marks omitted).
Like the voters of Arizona, who adopted an independent redistricting
commission recently upheld by the United States Supreme Court as consistent with
the “fundamental premise that all political power flows from the people,” the
Florida voters endeavored “to address the problem of partisan gerrymandering—
the drawing of legislative district lines to subordinate adherents of one political
party and entrench a rival party in power.” Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, No. 13-1314, 2015 WL 2473452, at *4, 21 (U.S. June 29,
2015). As the United States Supreme Court has recognized, “partisan
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gerrymanders . . . [are incompatible] with democratic principles.” Id. at *4
(alteration in original) (quoting Vieth v. Jubelirer, 541 U.S. 267, 292 (2004)
(plurality opinion)). In short, the Fair Districts Amendment was designed “to
restore ‘the core principle of republican government,’ namely, ‘that the voters
should choose their representatives, not the other way around.’ ” Id. at *21
(quoting Mitchell N. Berman, Managing Gerrymandering, 83 Texas L. Rev. 781,
781 (2005)).2
Presented in this case with a first-of-its-kind challenge under the Fair
Districts Amendment, the trial court found that the Legislature’s 2012
congressional redistricting plan was drawn in violation of the Florida
Constitution’s prohibition on partisan intent. We affirm that finding. We
2. We reject the Legislature’s federal constitutional challenge to the Fair
Districts Amendment. The Supreme Court’s recent opinion in the Arizona case
confirms that neither the “Elections Clause” of the United States Constitution, U.S.
Const. art. I, § 4, cl. 1, nor federal law, 2 U.S.C. § 2a(c), prohibits the people of a
state, through the citizen initiative process, from directing the way in which its
congressional district boundaries are drawn. As the Supreme Court explained,
“[b]anning lawmaking by initiative to direct a State’s method of apportioning
congressional districts” would “stymie attempts to curb partisan gerrymandering,
by which the majority in the legislature draws district lines to their party’s
advantage.” Ariz. State Legislature, 2015 WL 2473452, at *20; see also Brown,
668 F.3d at 1280 (rejecting a federal constitutional challenge to the Fair Districts
Amendment based on reasoning wholly consistent with the Supreme Court’s
reasoning in Arizona State Legislature).
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conclude, however, that the trial court failed to give proper legal effect to its
determination that the Fair Districts Amendment was violated.
In reaching this conclusion, we recognize that the trial court had scant
precedent to guide it in approaching the legal issues presented. And, we commend
the trial court for the tremendous effort that was expended in deciding this novel
challenge under the Fair Districts Amendment.
Nevertheless, we conclude that two legal errors significantly affected the
trial court’s determination of the appropriate legal effect of its finding of
unconstitutional intent. First, the trial court erred in determining that there was no
distinction between a challenge to the “plan as a whole”—a challenge, in effect, to
the map produced from the unconstitutional “process”—and a challenge to
individual districts. Second, the trial court erred in the standard of review it
applied, which was improperly deferential to the Legislature’s decisions after
finding a violation of the Fair Districts Amendment’s prohibition on partisan
intent. Although it found the existence of unconstitutional intent, the trial court
relied solely on objective “tier-two” constitutional indicators, such as compactness
and the use of political or geographical boundaries, rather than on the direct and
circumstantial evidence of “tier-one” unconstitutional intent presented at trial.
In other words, the trial court analyzed the Legislature’s map as if it had not
found the existence of unconstitutional intent, affording deference to the
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Legislature where no deference was due. Once a direct violation of the Florida
Constitution’s prohibition on partisan intent in redistricting was found, the burden
should have shifted to the Legislature to justify its decisions in drawing the
congressional district lines.
Relying on the finding of unconstitutional intent, the challengers have urged
that the entire plan should be redrawn. Certain factors support this approach,
which would require the Legislature to begin the redistricting process anew on a
blank slate. For example, we are aware that the starting point for drawing the 2012
congressional redistricting map was the 2002 map, which was drawn prior to the
Fair Districts Amendment with, at that time, legally permissible partisan intent. In
fact, the Legislature itself had, in defending against a racial gerrymandering claim
directed at the 2002 map, “stipulated” that its intent “was to draw the congressional
districts in a way that advantages Republican incumbents and potential
candidates.” Martinez, 234 F. Supp. 2d at 1340. We also acknowledge that a
three-judge federal district court panel concluded that the Florida Legislature’s
“overriding goal with respect to congressional reapportionment” in 2002 was to
“maximize the number of districts likely to perform for Republicans.” Id. at 1300-
01. These are considerations now explicitly outlawed by the Florida Constitution’s
prohibition on partisan political gerrymandering.
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Based on the findings and evidence in this case, however, we ultimately
reject the challengers’ request that the entire plan must be redrawn or that this
Court should, at this time, perform the task of redrawing the districts. Although we
conclude that the trial court’s finding of unconstitutional intent required the burden
to shift to the Legislature to justify its decisions regarding where to draw the lines,
we also conclude that the challengers still must identify some problem with the
Legislature’s chosen configuration. They did so in this case with respect to
Districts 5, 13, 14, 26, and 27—showing a nexus between the unconstitutional
intent and the district—as well as for Districts 21, 22, and 25, which they
contended were problematic either for “tier-two” reasons or because the
Legislature unjustifiably rejected a less favorable configuration.
Accordingly, while we affirm the trial court’s finding that the Legislature’s
enacted map was “taint[ed]” by unconstitutional intent, we reverse the trial court’s
order upholding the Legislature’s remedial redistricting plan. We relinquish this
case to the trial court for a period of 100 days from the date of this opinion, with
directions that it require the Legislature to redraw, on an expedited basis,
Congressional Districts 5, 13, 14, 21, 22, 25, 26, 27, and all other districts affected
by the redrawing, pursuant to the guidelines set forth in this opinion. We
emphasize the time-sensitive nature of these proceedings, with candidate
qualifying for the 2016 congressional elections now less than a year away, and
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make clear that we take seriously our obligation to provide certainty to candidates
and voters regarding the legality of the state’s congressional districts. Upon the
completion of the redrawing of the map, the trial court shall hold a hearing where
both sides shall have an opportunity to present their arguments and any evidence
for or against the redrawn map, and the trial court shall then enter an order either
recommending approval or disapproval of the redrawn map.
We commend both parties for their professionalism in presenting the case to
this Court and now proceed to discuss in detail the legal issues that have been
raised on appeal, the background of this case, the evidence presented, and our legal
reasoning.
I. CHALLENGE TO TRIAL COURT’S FINDINGS
On appeal in this Court, the challengers seek affirmance of the trial court’s
finding of unconstitutional partisan intent in drawing the state’s congressional
districts—a finding that was based on both direct and circumstantial evidence.
Their primary contention of error, however, is that the trial court applied an unduly
deferential standard of review, thereby precluding it from imposing a more
meaningful remedy for its finding of unconstitutional intent to favor the
Republican Party and incumbents.3
3. The issues raised on appeal by the challengers are: (1) the trial court erred
in requiring only two districts to be redrawn after finding constitutionally improper
intent in the enacted congressional redistricting plan; (2) Congressional Districts 5,
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The Legislature, while seeking affirmance of the trial court’s approval of the
remedial redistricting plan, nevertheless takes issue with the trial court’s finding of
unconstitutional intent.4 In particular, the Legislature contests, first, the trial
court’s finding of a connection between the evidence and the Legislature itself,
13, 14, 21, 22, 25, 26, and 27 are independently unconstitutional; (3) this Court
should craft a meaningful remedy, either by adopting a constitutionally valid plan
or assisting the Legislature so that it can adopt a plan that complies with the
Florida Constitution; and (4) the trial court erred in rejecting the challengers’
attempt to re-open the evidence to introduce additional allegations of improper
partisan intent.
We summarily reject the challengers’ claim regarding the trial court’s denial
of their motion to re-open the evidence. Although the e-mail the challengers
sought to introduce after the close of evidence did provide some additional
circumstantial support for their claim of improper intent, the challengers
themselves have conceded that it was cumulative to other evidence. Thus, while it
may have been relevant evidence and properly introduced during the trial if the
challengers had been able to obtain it sooner, the trial court did not abuse its
discretion in denying the motion to re-open the case, and the challengers were not,
in any event, prejudiced since the trial court found the existence of unconstitutional
intent.
4. The Legislature also raises the following three issues on cross-appeal: (1)
the trial court’s order improperly discourages public participation in the
redistricting process; (2) under the Florida Constitution, the controlling intent is the
intent of the Legislature as a collective body; and (3) article III, section 20, of the
Florida Constitution is invalid because it violates the United States Constitution.
As to the claim regarding public participation, we clarify that we do not read
the trial court’s order as discouraging public input in redistricting. There is
nothing inherently in violation of the law or the Florida Constitution for an
individual to anonymously submit a map to the Legislature for consideration or to
submit a map through a third party. We conclude that any comments by the trial
court to the contrary were made in the specific context of the facts and
circumstances of this case and do not amount to error.
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including the trial court’s decision to ascribe the intent of a few individuals to the
Legislature as a collective body. Second, the Legislature asserts that, even
assuming the existence of unconstitutional intent, the trial court’s finding pertains
solely to the two invalidated districts and not to the broader process or map as a
whole. Accordingly, the Legislature argues that any remedy that may have been
necessary has already been provided through the enactment of the remedial
redistricting plan.
We address these issues in the following way. After setting forth a
comprehensive overview of the factual and legal background of the case, including
a review of the evidence relied on by the trial court in finding unconstitutional
intent, our analysis begins by considering the “intent” standard and the trial court’s
application of that standard in this case. Upon determining that the trial court
appropriately framed the “intent” inquiry, we turn to the legal sufficiency of the
trial court’s finding of unconstitutional intent. We conclude that competent,
substantial evidence supports the trial court’s finding and that this finding pertains
to the plan as a whole and not solely to the two invalidated districts. We then
proceed to consider the proper legal effect of this finding as we review each
challenged district. Finally, we address the remedy.5
5. We conclude—as agreed by both parties—that amici curiae LatinoJustice
PRLDEF, Florida New Majority, and Mi Familia Vota lack standing to challenge
the validity of Congressional District 9. Amici curiae did not appear in the trial
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II. THE FLORIDA CONSTITUTION’S PROHIBITION ON PARTISAN
POLITICAL GERRYMANDERING
In February 2012, “the Florida Legislature approved the decennial plan
apportioning Florida’s twenty-seven congressional districts, based on population
data derived from the 2010 United States Census.” League of Women Voters of
Fla. v. Fla. House of Representatives (Apportionment IV), 132 So. 3d 135, 139
(Fla. 2013). After the adoption of the Legislature’s 2012 congressional
redistricting plan, two separate groups of plaintiffs (“the challengers”)6 filed civil
complaints in the Second Judicial Circuit Court in and for Leon County,
challenging the validity of the plan under new state constitutional redistricting
court to raise this claim, and it is well-settled that amici are not permitted to raise
new issues. See Riechmann v. State, 966 So. 2d 298, 304 n.8 (Fla. 2007).
6. We use the term “challengers,” which has been used by this Court in
prior opinions during the course of this litigation, to refer collectively to the
plaintiffs in the trial court, who are the Appellants/Cross–Appellees in this Court.
These litigants that challenged the constitutionality of the congressional
redistricting plan enacted in 2012 include two separate groups, which have
described themselves as the “Coalition plaintiffs” and the “Romo plaintiffs.” The
“Coalition plaintiffs” consist of the League of Women Voters of Florida, Common
Cause, and four individually named parties. The National Council of La Raza was
formerly a member of the “Coalition plaintiffs” but later voluntarily dismissed all
claims and withdrew as a party in the case prior to the trial. The “Romo plaintiffs”
consist of lead plaintiff Rene Romo and six other individually named parties.
There has rarely been a need to distinguish between the two groups for purposes of
the issues to come before this Court, and the circuit court consolidated the two
lawsuits filed by these groups that challenged the Legislature’s 2012 congressional
redistricting plan.
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standards approved by the Florida voters in 2010 and now enumerated in article
III, section 20, of the Florida Constitution. “Those standards, governing the
congressional reapportionment process, appeared on the 2010 general election
ballot as ‘Amendment 6’ and, together with their identical counterparts that apply
to legislative reapportionment (‘Amendment 5’), were generally referred to as the
‘Fair Districts’ amendments.” Id.7 As this Court has previously noted, “[t]here is
no question that the goal of minimizing opportunities for political favoritism was
the driving force behind the passage of the Fair Districts Amendment.”
Apportionment I, 83 So. 3d at 639.
In Apportionment I, during this Court’s first review involving the new
constitutional standards, we commended the Legislature for what it claimed at that
time to be an unprecedented transparent redistricting process, in which the
Legislature engaged in twenty-six public hearings around the state and obtained
public input as it went about its task of redistricting. See 83 So. 3d at 637 n.35,
664. In truth, public input in redistricting was not unique to the 2012 process. The
Legislature held thirty-three public hearings during the 1992 redistricting and
7. “Amendment 5 is now codified in article III, section 21, of the Florida
Constitution. The standards in article III, section 20—governing congressional
reapportionment—and those in article III, section 21—governing legislative
reapportionment—are identical.” Id. at 139 n.1.
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twenty-four public hearings prior to the enactment of the 2002 map. See Martinez,
234 F. Supp. 2d at 1288.
Based on the new constitutional standards that applied for the first time to
the 2012 process, transparency became legally significant under the Florida
Constitution. This Court explained that “if evidence exists to demonstrate that
there was an entirely different, separate process that was undertaken contrary to the
transparent effort in an attempt to favor a political party or an incumbent in
violation of the Florida Constitution, clearly that would be important evidence in
support of the claim that the Legislature thwarted the constitutional mandate.”
Apportionment IV, 132 So. 3d at 149. Indeed, the challengers’ principal claim in
this litigation challenging the constitutional validity of the Legislature’s 2012
congressional redistricting plan involved evidence of the type of “entirely different,
separate process” this Court warned would be “important evidence” of a
constitutional violation.
Specifically, the challengers argued that the Legislature cooperated and
collaborated with partisan political operatives aligned with the Republican Party to
produce a redistricting plan that was drawn in contravention of article III, section
20, with the intent to favor incumbents and the Republican Party, which was the
controlling political party in the Legislature at the time of the 2012 redistricting.
Before the approval of the Fair Districts Amendment, this Court had previously
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acknowledged, in 1992, that there was “little doubt that politics played a large
part” in the adoption of prior redistricting plans in this state, explaining that the
protection of incumbents and favoritism of one party over another was inevitable—
and certainly “not illegal.” In re Senate Joint Resolution 2G, Special
Apportionment Session 1992 (In re Apportionment Law—1992), 597 So. 2d 276,
285 (Fla. 1992). But at that time, such partisan intent was not legally prohibited.
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.
Specifically, article III, section 20, of the Florida Constitution, provides in
its entirety as follows:
In establishing congressional district boundaries:
(a) No apportionment plan or individual district shall be drawn
with the intent to favor or disfavor a political party or an incumbent;
and districts shall not be drawn with the intent or result of denying or
abridging the equal opportunity of racial or language minorities to
participate in the political process or to diminish their ability to elect
representatives of their choice; and districts shall consist of
contiguous territory.
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(b) Unless compliance with the standards in this subsection
conflicts with the standards in subsection (a) or with federal law,
districts shall be as nearly equal in population as is practicable;
districts shall be compact; and districts shall, where feasible, utilize
existing political and geographical boundaries.
(c) The order in which the standards within subsections (a) and
(b) of this section are set forth shall not be read to establish any
priority of one standard over the other within that subsection.
Art. III, § 20, Fla. Const.
Under article III, section 20, “there is no acceptable level of improper
intent.” Apportionment I, 83 So. 3d at 617. The prohibition on improper partisan
intent in redistricting applies, “by its express terms,” to “both the apportionment
plan as a whole and to each district individually” and does not “require a showing
of malevolent or evil purpose.” Id. A finding of partisan intent therefore renders
the Legislature’s redistricting plan constitutionally invalid, as the Florida
Constitution expressly “outlaw[s] partisan political gerrymandering.”
Apportionment IV, 132 So. 3d at 137. As we explained in Apportionment I:
The Florida Constitution now expressly prohibits what the
United States Supreme Court has in the past termed a proper, and
inevitable, consideration in the apportionment process.
Florida’s express constitutional standard, however, differs from
equal protection political gerrymandering claims under either the
United States or Florida Constitutions. Political gerrymandering
claims under the Equal Protection Clause of the United States
Constitution focus on determining when partisan districting as a
permissible exercise “has gone too far,” so as to “degrade a voter’s or
a group of voters’ influence on the political process as a whole.”
In contrast to the federal equal protection standard applied to
political gerrymandering, the Florida Constitution prohibits drawing a
plan or district with the intent to favor or disfavor a political party or
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incumbent; there is no acceptable level of improper intent. It does not
reference the word “invidious” as the term has been used by the
United States Supreme Court in equal protection discrimination cases,
and Florida’s provision should not be read to require a showing of
malevolent or evil purpose.
83 So. 3d at 616-17 (citations omitted).
“Florida’s constitutional provision prohibits intent, not effect,” which is to
say that a map that has the effect or result of favoring one political party over
another is not per se unconstitutional in the absence of improper intent. Id. at 617.
“Thus, the focus of the analysis must be on both direct and circumstantial evidence
of intent.” Id. “One piece of evidence in isolation may not indicate intent, but a
review of all of the evidence together may lead this Court to the conclusion that the
plan was drawn for a prohibited purpose.” Id. at 618. The relevant inquiry for
discerning improper partisan intent “focuses on whether the plan or district was
drawn with this purpose in mind.” Id.A. TRIAL COURT’S FINDING OF UNCONSTITUTIONAL INTENT
The challengers’ claim of unconstitutional intent in the enacted
congressional redistricting plan was that the Legislature communicated and
collaborated with partisan political operatives, in the shadow of the Legislature’s
purportedly open and transparent redistricting process, to produce a map favoring
Republicans and incumbents. After hearing all the evidence presented during a
twelve-day bench trial held from late May to early June 2014, and evaluating the
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credibility of all the witnesses, the trial court found that the challengers had proven
their case and concluded that the Florida Legislature’s enacted 2012 congressional
redistricting plan was drawn in violation of article III, section 20.
The introductory paragraph of the trial court’s judgment stated that “districts
5 and 10 were drawn in contravention of the constitutional mandates of Article III,
Section 20,” but, in its discussion throughout the course of its forty-one-page order,
the trial court more generally referred to and found that a group of partisan
political operatives “conspire[d] to manipulate and influence the redistricting
process” and succeeded in “infiltrat[ing] and influenc[ing] the Legislature, to
obtain the necessary cooperation and collaboration” to “taint the redistricting
process and the resulting map with improper partisan intent.” (Emphasis supplied.)
Specifically, the trial court stated, in pertinent part, as follows:
[The challengers’] theory of the case regarding improper intent
is that Republican leadership in the House and the Senate, their key
staff members, and a small group of Republican political consultants
conspired to avoid the effective application of the Fair District
Amendments to the redistricting process and thereby successfully
fashioned a congressional map that favors the Republican Party and
its incumbents. The strategy they came up with, according to the
[challengers], was to present to the public a redistricting process that
was transparent and open to the public, and free from partisan
influences, but to hide from the public another secretive process. In
this secretive process, the political consultants would make
suggestions and submit their own partisan maps to the Legislature
through that public process, but conceal their actions by using proxies,
third persons who would be viewed as “concerned citizens,” to speak
at public forums from scripts written by the consultants and to submit
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proposed maps in their names to the Legislature, which were drawn
by the consultants.
What is clear to me from the evidence, as described in more
detail below, is that this group of Republican political consultants or
operatives did in fact conspire to manipulate and influence the
redistricting process. They accomplished this by writing scripts for
and organizing groups of people to attend the public hearings to
advocate for adoption of certain components or characteristics in the
maps, and by submitting maps and partial maps through the public
process, all with the intention of obtaining enacted maps for the State
House and Senate and for Congress that would favor the Republican
Party.
They made a mockery of the Legislature’s proclaimed
transparent and open process of redistricting by doing all of this in the
shadow of that process, utilizing the access it gave them to the
decision makers, but going to great lengths to conceal from the public
their plan and their participation in it. They were successful in their
efforts to influence the redistricting process and the congressional
plan under review here. And they might have successfully concealed
their scheme and their actions from the public had it not been for the
[challengers’] determined efforts to uncover it in this case.
The closer question is whether the Legislature in general, or the
leadership and staff principally involved in drawing the maps,
knowingly joined in this plan, or were duped by the operatives in the
same way as the general public. The Defendants argue that if such a
conspiracy existed, there is no proof that anyone in the Legislature
was a part of it. If portions of the operatives’ maps found their way
into the enacted maps, they say, it was not because leadership or staff
were told or knew they came from this group, but rather because the
staff, unaware of their origins, saw the proposals as improving the
draft maps they were working on.
The most compelling evidence in support of this contention of
the Defendants is the testimony of the staff members who did the bulk
of the actual map drawing for the Legislature. I had the ability to
judge the demeanor of Alex Kelly, John Guthrie and Jason Poreda at
trial and found each to be frank, straightforward and credible. I
conclude that they were not a part of the conspiracy, nor directly
aware of it, and that significant efforts were made by them and their
bosses to insulate them from direct partisan influence. I accept that
their motivation in drawing draft maps for consideration of the
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Legislature was to produce a final map which would comply with all
the requirements of the Fair District Amendments, as their superiors
had directed them.
That being said, the circumstantial evidence introduced at trial
convinces me that the political operatives managed to find other
avenues, other ways to infiltrate and influence the Legislature, to
obtain the necessary cooperation and collaboration to ensure that their
plan was realized, at least in part. They managed to taint the
redistricting process and the resulting map with improper partisan
intent. There is just too much circumstantial evidence of it, too many
coincidences, for me to conclude otherwise.
(Emphasis supplied.)
Having reviewed the trial court’s factual findings and the record, and
viewing the evidence in the light most favorable to the trial court’s finding of
unconstitutional intent, we set forth the following relevant factual background of
the case. See Berges v. Infinity Ins. Co., 896 So. 2d 665, 676 (Fla. 2004)
(explaining that it “is not the function of this Court to substitute its judgment for
that of the trier of fact”); Markham v. Fogg, 458 So. 2d 1122, 1126 (Fla. 1984)
(stating that an appellate court “should not substitute its judgment for that of the
trier of fact” as long as there is competent, substantial evidence to support the
findings, and concluding upon review of conflicting evidence that there was
“ample credible evidence adduced at the trial to sustain the trial judge’s findings”);
see also Hausdorff v. Hausdorff, 913 So. 2d 1267, 1268 (Fla. 4th DCA 2005)
(viewing the evidence in the light most favorable to the challenged judgment in
evaluating whether competent, substantial evidence supported the trial court’s
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rulings); Mesick v. Loeser, 311 So. 2d 132, 136 (Fla. 2d DCA 1975) (findings by
the lower court as a trier of fact come to the appellate court “clothed with a heavy
presumption of correctness and where there is substantial competent evidence to
sustain the actions of the trial court,” the appellate court cannot substitute its own
opinion on the evidence but “must indulge every fact and inference in support of
that judgment,” which is the equivalent of a jury verdict). We note, given the
nature of the challengers’ claim, that circumstantial evidence is often essential in
proving a conspiracy—and indeed may be the only type of evidence available. See
Anheuser-Busch, Inc. v. Campbell, 306 So. 2d 198, 199 (Fla. 1st DCA 1975) (“It is
a well settled rule that circumstantial evidence is admissible in civil conspiracy
cases.”); see also Resnick v. State, 287 So. 2d 24, 26 (Fla. 1973) (holding that a
criminal conspiracy need not be proved by only direct evidence).
As we recount the facts, we emphasize that not every meeting held or every
communication made was improper, illegal, or even violative of the letter of the
Fair Districts Amendment. We set forth the pertinent facts in the record because,
collectively, the evidence that the challengers were able to uncover after a
protracted discovery process demonstrates a different scenario than the entirely
open and transparent process touted by the Legislature when this Court considered
the original apportionment challenges to the state Senate and House maps in
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Apportionment I. This is, indeed, what the trial court—which heard and
considered all this evidence—found.
We also emphasize that since many of the e-mails were deleted or destroyed,
we still may have only a partial picture of the behind-the-scenes political tactics.
As the trial court found, “the Legislators and the political operatives systematically
deleted almost all of their e-mails and other documentation relating to
redistricting.” The Legislature did so even though it had acknowledged that
litigation over the redistricting plan was “a moral certainty.” Indeed, if not for the
production of some documents from the political consultants, including Marc
Reichelderfer and Pat Bainter, there would be no record of the separate process
undertaken by the consultants and no way to establish whether or not this process
involved the collusion of the Legislature and ultimately affected the enacted map,
as the trial court concluded.
We further understand that “taking the politics out of politics” is itself a
difficult challenge, considering that partisan political gerrymandering was the
norm for both political parties during prior redistricting processes in this state.
Nevertheless, the facts that we recount provide the backdrop as to why we reject
the Legislature’s defense—which focuses on the political consultants’ efforts to
“influence the redistricting process” and “make themselves relevant” despite their
“exclusion from the decision-making process”—that depicts the political
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consultants and a few errant staffers as independent, self-motivated culprits,
individuals who did not have the ability to and did not, in fact, influence the
Legislature’s decisions regarding where to draw the lines. And, finally, we
emphasize that a finding of unconstitutional intent to favor a political party or
incumbent does not necessarily mean that those who made the decisions acted with
“malevolent or evil purpose,” which is not required for a finding of
unconstitutional intent under the Fair Districts Amendment. Apportionment I, 83
So. 3d at 617.
B. EVIDENCE OF UNCONSTITUTIONAL INTENT
A month after the Florida voters approved the Fair Districts Amendment
during the November 2010 general election, then-Speaker of the House Dean
Cannon authorized a meeting in December 2010 at the headquarters of the
Republican Party of Florida, involving Republican political consultants and
legislative staffers, to discuss the upcoming redistricting process. This gathering
was described by one of the consultants at trial as a meeting of “people that, prior
to passage of the [new constitutional standards], would have generally been
involved in the redistricting process.”
The four key political consultants in attendance, who became major figures
in the redistricting trial, were (1) Rich Heffley, (2) Frank Terraferma, (3) Marc
Reichelderfer, and (4) Pat Bainter. Heffley is a consultant who has worked with
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many Republican legislators and candidates for public office, including Senator
Don Gaetz, the Chairman of the 2012 Senate Committee on Reapportionment.
Heffley had been involved in prior redistricting processes in Florida in 1992 and
2002 and, by the summer of 2011, was being paid $10,000 per month by the
Republican Party of Florida for unspecified redistricting services. Terraferma is
also a consultant who has worked for a number of Republican legislators and
candidates, including Representative Will Weatherford, the Chairman of the 2012
House Redistricting Committee. Terraferma had previously been hired by Heffley
to work for the Republican Party of Florida and went back to work for the party as
Director of House campaigns in 2011. He was described by employees of a
national Republican organization, in an invitation for a meeting held in
Washington, D.C., in June 2011 with key individuals involved in the redistricting
process, as a “genius map drawer.” Reichelderfer is another consultant who has
worked with several Republican legislators and candidates, including former
Speaker Dean Cannon. Reichelderfer is also one of Cannon’s longtime personal
friends, dating back over twenty years to their days together as Young
Republicans. He was, at the time of the 2012 redistricting, considered part of
Cannon’s “inner circle,” and he had a good working relationship with Heffley.
Bainter is the owner of a Gainesville, Florida, based political consulting firm
known as Data Targeting, Inc., which has as one of its largest clients the
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Republican Party of Florida. Between January of 2011 and November of 2012, the
Republican Party of Florida paid Data Targeting, Inc., almost $3 million for
consulting, polling, and direct mail services.
These four consultants, along with employees of the Republican Party of
Florida, met in the initial December 2010 meeting with Alex Kelly, the staff
director for the House Redistricting Committee; Chris Clark, the chief legislative
aide for Senator Gaetz; and attorneys for the Legislature. At a second meeting the
following month, in January 2011, the consultants met with Senator Gaetz,
Representative Weatherford, Alex Kelly, and Kelly’s Senate counterpart, John
Guthrie.
These meetings were not open to the public and there is no record of what
was discussed. As the trial court stated, “[n]o one who testified at trial about [the
meetings] seemed to be able to remember much about what was discussed, though
all seemed to agree that the political consultants were told that they would not have
a ‘seat at the table’ in the redistricting process,” as they had during redistricting in
years past. According to the trial court, “[n]o one clearly articulated what that
meant exactly, but there was testimony that they were told that they could still
participate in redistricting through the public process ‘just like any other citizen.’ ”
Reichelderfer, the consultant who has worked with then-Speaker Cannon,
testified that one topic of discussion at the meetings, as the trial court noted, was
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“whether a privilege could be identified to prevent disclosure of redistricting-
related communications among political consultants, legislators, and legislative
staff members.” The conclusion reached at the meetings, according to the trial
court, was “that no privilege would apply.” After the first meeting, in December
2010, Reichelderfer prepared a memorandum that included the following question:
“Communication with outside non-lawyers—how can we make that work?”
Another question included in the Reichelderfer memorandum was,
“Evolution of maps—Should they start less compliant and evolve through the
process—or—should the first map be as near as compliant as possible and change
very little?” Reichelderfer acknowledged at trial that it was “possible” he
discussed with Speaker Cannon the issues identified in this initial memo he
prepared. The trial court would later reference Reichelderfer’s memo in rejecting
part of the Legislature’s argument that there could be “no improper partisan intent
in the drafting of the maps” because, the Legislature asserted, “as things
progressed, each succeeding map that was drawn was an improvement over the one
before it in terms of compactness, leaving cities and counties intact and following
geographical boundaries.” “Coincidentally,” the trial court stated, “that
corresponds with a strategy suggested from Reichelderfer’s notes, i.e., start with
less compliant maps and work toward a more compliant map.”
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The trial court found that there was “no reason to convene two meetings just
to tell active political partisans of the Republican Party that they would not ‘have a
seat at the table.’ ” The trial court also noted “a few curious things about these
meetings and their connection to subsequent events that are troubling.”
Specifically, even though the consultants supposedly had no “seat at the
table,” the trial court found that they continued to be involved in the process. In
June 2011, an e-mail was sent from Senator Gaetz’s e-mail address to legislators to
provide information about upcoming public hearings regarding redistricting. A
“blind copy” of this e-mail was sent to Heffley, the consultant under contract with
the Republican Party of Florida, and to Terraferma, the “genius map drawer.” The
trial court found that this was evidence that either Senator Gaetz or “someone in
his office” was “keeping these operatives in the loop.”
Another e-mail, sent in October 2011 from Terraferma to Representative
Weatherford, reported that Kirk Pepper, the Deputy Chief of Staff for then-Speaker
Cannon, was “huddled on a computer” at the Republican Party of Florida’s
headquarters, working with consultant Heffley on “[c]ongressional redistricting if I
had to guess?” Pepper acknowledged at trial that he must have been speaking with
Heffley at the Republican Party of Florida’s headquarters at the time, but stated
that he “never met with Rich Heffley about redistricting.” He had no explanation
as to why Terraferma, whom Pepper had previously worked with at the Republican
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Party of Florida, would have thought otherwise. The trial court found that it was
“possible that Terraferma was mistaken or simply speculating without any basis,”
but this communication caused the trial court to “wonder why [Terraferma] would
make this assumption if Pepper really had nothing to do with the redistricting
process.”
As it turned out, Pepper acted as a conduit between the consultants and the
Legislature. According to testimony relied on by the trial court, Cannon staffer
Pepper “regularly” provided advance, non-public copies of draft redistricting maps
to consultant Reichelderfer. The evidence, which came from document production
by Reichelderfer since, as the trial court noted, neither Pepper nor Speaker Cannon
preserved any records, demonstrated that between November 2011 and January
2012, Pepper transmitted to Reichelderfer—through his personal e-mail account, a
“Dropbox” account he later deleted, and a thumb drive—at least twenty-four draft
congressional redistricting maps prepared by the Legislature, mostly before they
were released to the public. In some instances, Pepper sent Reichelderfer maps the
Legislature prepared but never released to the public.
Although Pepper testified at trial that he acted “without Speaker Cannon’s
approval” and, in retrospect, considered his decision to provide Reichelderfer with
maps to have been “a mistake,” Pepper was later hired by Cannon’s private firm
after Cannon left office. Cannon described Pepper as “a loyal employee,” but
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testified that he did not know about Pepper’s transmission of maps to Reichelderfer
until it was reported in the media during the litigation in this case.
While they denied doing so, the trial court found that Pepper and
Reichelderfer “communicate[d] about the political performance of the maps.” In
one instance, after Reichelderfer expressed concerns that the draft of a Central
Florida district occupied by incumbent Republican Representative Daniel Webster
was “a bit messed up,” Pepper asked Reichelderfer, “[p]erformance or
geography?” Reichelderfer acknowledged during testimony at trial that
“performance” in that context would “[g]enerally” refer to the political
performance of the district, although there is no record of his response to Pepper.
Reichelderfer testified that he could not recall whether or how he answered that
question. He spoke on the phone “regularly” with Pepper but denied having
“specific conversations about political performance.”
Despite asking, “[p]erformance or geography?” Pepper testified at trial that
he did not want to know from Reichelderfer if there was a problem with the
political performance of that particular district. Instead, he provided a lengthy
explanation that his question was a “sarcastic” response to remind Reichelderfer
“to be quiet,” because they were not supposed to talk about redistricting or the
political implications of certain maps. Pepper stated of his question, “[i]t’s like if
you were talking to someone that you knew very well and had known for a long
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period of time, you could say something in writing that other people might take
differently than you meant it.” The trial court discredited Pepper’s explanation as
“very unusual and illogical.”
After receiving maps from Cannon staffer Pepper, Reichelderfer modified
the maps to increase the Republican performance of the districts, and he and the
other consultants traded numerous maps back and forth with each other. Of
significance, the trial court found that some of Reichelderfer’s modifications
corresponded to the actual decisions the Legislature ultimately made.
In one graphic example, cited by the trial court, Reichelderfer’s revisions
changed the performance of Districts 5, 7, 9, and 10 from four Democratic
performing or leaning seats to two Democratic and two Republican performing
seats, as eventually reflected in the actual map enacted by the Legislature. Another
map, which was known to have been drawn by Terraferma, shared eleven identical
districts with a map submitted through the public process by an individual named
Alex Posada, who denied ever creating or submitting the map and stated that he
had not authorized anyone to submit a map using his name.
For his part, Reichelderfer described his interest in the Legislature’s maps as
important to him “professionally” to “know the lay of the land,” similar to
Bainter’s explanation that his interest was an “after-the-fact” one merely for the
sake of his own “[k]nowledge”—even though the evidence presented at trial
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demonstrated that the consultants spent considerable time, including weekends,
early mornings, and late nights, making revisions to draft maps, and even though
communications between these consultants regarding the maps referred to having
“a job to do,” wanting to “spread” the maps “around,” and “[h]ead[ing] up” to
Tallahassee to “[t]ell[] folks to look at” certain maps.
The trial court found that the consultants “did their best to evade answering
direct questions” at trial, “often using semantic distinctions to avoid admitting
what they had done.” As this Court previously noted with respect to documents
produced by Bainter that included communications among the consultants
regarding maps, “the documents support[ed] the challengers’ claim that Bainter
was not just drawing maps out of casual ‘after-the-fact interest,’ but was actively
engaged in an extensive process to draw maps favorable to a particular political
party or incumbent and facilitate the submission of those maps to the Legislature
through ‘shell people’ without any indication that the maps were drawn by the
political consultants.” Apportionment VI, 150 So. 3d at 1129. For instance, one e-
mail produced by Bainter stated that a Republican activist in Gainesville was
“getting” him “10 more people at least,” while another e-mail indicated that if one
of the consultants could “think of a more secure and failsafe way to engage our
people, please do it.”
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The trial court found that the Bainter documents “evidenced a conspiracy to
influence and manipulate the Legislature into a violation of its constitutional duty”
to redistrict in a neutral, non-partisan fashion, and explained that those documents
were “very helpful” in demonstrating not only that the consultants “were
submitting maps to the legislature” through third parties, but “how extensive and
organized that effort was, and what lengths they went to in order to conceal what
they were doing.” The trial court also found it “hard to imagine” that the
legislative leaders and staffers who allegedly told these consultants that they could
not be involved, other than through the public process, “would not have expected
active participation in the public redistricting process by those political consultants
at the meetings” and would not have questioned both why the consultants were not
in attendance at the public hearings and why none of the maps coming from the
public had any of the consultants’ names on them. “I would think,” the trial court
opined, “that the staff and legislative leaders would find [this lack of public
participation by the consultants] extremely strange, that they might even ask why
not. But they didn’t.”
According to the trial court, however, the consultants had no need to
publicly participate in order to influence the Legislature’s redistricting plan.
Throughout the process, Reichelderfer was in direct contact with Speaker Cannon.
In one late November 2011 e-mail from Cannon to Reichelderfer, which copied
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Pepper, Cannon commented that “we are in fine shape” as long as “the Senate
accommodates the concerns that you [Reichelderfer] and Rich [Heffley] identified
in the map that they put out tomorrow.”
Cannon testified at trial that these “concerns” he was referring to were that
the House and Senate “not roll out maps that were either completely inconsistent
with one another or designed to show some inadequacy in terms of either minority
representation or defect in [the House’s] maps,” so that reconciliation between the
two chambers would be difficult. The trial court found Cannon’s explanation to be
“a stretch given the language used.”
The evidence also revealed that Cannon asked Reichelderfer and Heffley,
who was described as being “close” to Senator Gaetz, to serve, as the trial court put
it, “as go betweens for leadership of the two chambers regarding the redistricting
process.” According to testimony relied on by the trial court, the asserted reason
for Reichelderfer’s and Heffley’s involvement was “purportedly because of a lack
of a good working relationship between the Speaker of the House and the President
of the Senate.”
The trial court was skeptical of that explanation, however, stating that “by
all accounts, the actual staff members of each chamber who were working on the
maps got along well with each other, as did the chairmen of the redistricting
committees.” The trial court actually found the staff members who testified at trial
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to be “straightforward and credible” and “not a part of the conspiracy.” In any
event, the trial court specifically found that “in their insider roles, Heffley and
Reichelderfer did not have to speak directly to staff map drawers, or even
leadership, to infect and manipulate the map drawing and adoption process.”
At trial, Reichelderfer admitted to discussing “global” redistricting concerns
with Speaker Cannon, but denied talking to Cannon “specifically about individual
maps.” Reichelderfer lived near Cannon, their families spent time together,
Reichelderfer saw Cannon on the weekends, and Reichelderfer met with Cannon to
discuss issues he was dealing with as Speaker.
Reichelderfer also correctly informed other consultants about which of the
Legislature’s draft maps was most “relevant,” meaning which was most likely to
advance in the process. Among the seven congressional maps released to the
public by the House on December 6, 2011, the map identified by Reichelderfer as
the map most likely to advance was the map that was revised to become the
House’s final proposed congressional map. At trial, Reichelderfer could not
“recall specifically” how he knew that map to be the most likely to advance in the
process, simply stating that if he “had that information for sure,” he wouldn’t have
used the qualifier “I think” in his response. He testified that he “could have” just
thought it “was the easiest to pair up with the Senate version of the map.”
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Communications among the consultants revealed particular emphasis on
certain areas of the map. For instance, in one e-mail referencing a configuration in
a draft map that kept District 14 contained entirely within Hillsborough County—a
configuration less favorable to Republicans than the configuration ultimately
enacted, which crossed Tampa Bay to pick up voters from Pinellas County in
District 14—Terraferma noted to Heffley that “Tampa is far from perfect.” The
enacted configuration of Districts 13 and 14—where District 14 includes a portion
of Pinellas County, rather than being strictly within Hillsborough—produced one
safe Democratic seat and one seat that either party could win, rather than two
naturally-occurring seats favorable to Democrats. This was the configuration
preferred by the consultants.
In another e-mail between Terraferma, Heffley, and Reichelderfer sent on
the same day the Senate released a public map that did not divide the City of
Homestead—a division considered by the consultants to be important to favor
Republicans—Terraferma noted that District 26 was “pretty weak.” Heffley
responded, “The [H]ouse needs to fix a few of these,” and Terraferma, copying
Reichelderfer, responded, “yes.” The enacted configuration did, indeed, split the
City of Homestead between Districts 26 and 27, which turned one Republican
district and one Democratic district into two Republican-leaning districts.
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The decision to split Homestead was one of several key decisions made in a
non-public meeting between Senator Gaetz, Representative Weatherford, and the
two staff directors of the respective redistricting committees. While the meeting of
two legislators in private does not result in a violation of article III, section 4(e), of
the Florida Constitution—which requires all meetings between “more than two
members” of the Legislature to be open to the public—the lengths to which the
legislators went to avoid triggering the requirements for a public meeting in the
final stages of negotiating and making changes to the districts raises questions as to
the motivation of the Republican leadership. It also stands in stark contrast to
statements from that leadership proclaiming that the 2012 redistricting process
would be the most open and transparent in Florida’s history. And, it can be readily
distinguished from other legislative decisions where private negotiations are
undertaken, since redistricting involves “a constitutional restraint on the
Legislature’s actions.” Apportionment IV, 132 So. 3d at 147.
Indeed, many final revisions that affected numerous districts in some way—
such as the decision to push the Black Voting Age Population (BVAP) of District 5
over 50%, add an appendage to District 10, split Homestead, and increase the
Hispanic Voting Age Population (HVAP) of Districts 9 and 14—were made in this
non-public meeting that occurred after the House and Senate had each passed their
versions of the congressional map. The decisions regarding District 5 and District
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10 specifically contributed to the trial court’s decision to invalidate those two
districts.
There was, in general, either conflicting or vague testimony as to why
certain decisions were made in this meeting, including that the decisions were
necessary to comply with the federal Voting Rights Act or some other policy
concern. Because the meeting was not public, however, there is no official record
of the reason for these decisions, which ultimately benefitted the Republican Party.
One example of a key decision made during this non-public meeting was the
decision to push the BVAP of District 5 over 50%. Although he could not recall
specifics, Representative Weatherford testified that making District 5 a majority-
minority district was “important to the Senate” and that the Senate made a
“compelling case” for raising the BVAP of the district over 50%. The highest
BVAP for District 5 in any of the House’s draft maps was slightly over 48%.
Senator Gaetz testified that the Senate believed it was important to increase the
BVAP to over 50% to protect against a federal Voting Rights Act challenge, and
that he also favored keeping the City of Sanford in the district, which the House’s
version of the map did not do.
Before Representative Weatherford met with Senator Gaetz, Speaker
Cannon met separately with Representative Weatherford and staff in another non-
public meeting. Speaker Cannon anticipated that the Senate would ask to make
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District 5 a majority-minority district and apparently instructed the House during
this non-public meeting to agree to the Senate’s request. Ensuring that the BVAP
of District 5 ended up over 50% was of particular concern to Reichelderfer, the
consultant who was part of Speaker Cannon’s “inner circle.”
At trial, Reichelderfer testified, without specificity, that he believed pushing
the BVAP of District 5 over 50% was important “to comply with the Federal
Voters Rights Act,” based on a general recollection of discussions with lawyers
whose names he could not recall. He thought it would be “politically damaging” if
the map was invalidated because of a successful Voting Rights Act challenge, even
though the 2002 version of District 5 did not have a BVAP of over 50% and was
not invalidated during Voting Rights Act litigation. See Martinez, 234 F. Supp. 2d
at 1307 (noting that the BVAP of the 2002 version of District 5 was “only” 46.9%,
but that the district “will afford black voters a reasonable opportunity to elect
candidates of choice and probably will in fact perform for black candidates of
choice”). At the same time, increasing the BVAP of District 5—as occurred from
early versions of the Legislature’s draft maps to the enacted version—decreased
the Democratic performance of surrounding districts.
The trial court found the Legislature’s justification for making District 5 a
majority-minority district to be “not compelling” and invalidated the enacted
version of District 5. The Legislature’s decision—made in a non-public meeting,
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after Cannon’s instruction in a separate non-public meeting, consistent with a
concern Reichelderfer had long expressed—is therefore circumstantial evidence of
collusion between the Legislature and the consultants, particularly where the trial
court found there to have been no showing that it was legally necessary to create a
majority-minority district.
There is no record from the time many of these key decisions were made to
explain the Legislature’s reasoning. This is, of course, partly because the final
decisions were made in a non-public meeting. But it is also because the
Legislature, as the trial court found, deleted almost all e-mails and documentation
related to redistricting.
Former Speaker Cannon testified that his e-mails were automatically deleted
after six months unless specifically saved as having “significant archival or legal
significance.” If that were the case, then exchanges between Speaker Cannon and
consultant Reichelderfer that occurred in late November 2011—discovered from
document production by Reichelderfer—would not have been deleted until May
2012 unless they were intentionally deleted before that time. But May 2012 was
several months after the lawsuit was filed in this case, naming Cannon as a party
and making a reality what the Legislature itself had previously acknowledged, as
far back as December 2012, to have been “a moral certainty” from “start to finish”
during the redistricting process—that records related to redistricting would be
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sought by the challengers and relevant to adjudicating the constitutionality of the
Legislature’s redistricting plan.
Ultimately, based on the evidence the challengers uncovered and presented
at trial, the trial court found that there was “just too much circumstantial evidence”
and “too many coincidences” to reach any conclusion other than that the political
operatives had “infiltrate[d] and influence[d] the Legislature” in order to “obtain
the necessary cooperation and collaboration” to “taint the redistricting process and
the resulting map with improper partisan intent.” While it is sometimes said that it
is “hard to believe in coincidence,” the trial court determined in this case that, as
the saying goes, it was “even harder to believe in anything else.” After reviewing
all the evidence, both direct and circumstantial, the trial court thus concluded that
the plan was drawn with improper partisan intent.
C. STEPS AFTER FINDING UNCONSTITUTIONAL INTENT
Despite its finding of unconstitutional partisan intent, however, the trial
court invalidated only Districts 5 and 10, rejecting challenges to seven other
individual districts. The trial court determined that there was no “distinction”
between a challenge to the plan as a whole and a challenge to specific districts, and
therefore “focused on those portions of the map” that it found to be “in need of
corrective action in order to bring the entire plan into compliance with the
constitution.”
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Its finding of unconstitutional intent notwithstanding, the trial court applied
a deferential standard of review in analyzing each challenged district, “deferring to
the Legislature’s decision to draw a district in a certain way, so long as that
decision does not violate the constitutional requirements.” Believing that the
“more reliable” indicators of whether the plan was drawn with the intent to favor a
political party or incumbent were the tier-two constitutional measures, the trial
court “first examine[d] the map for apparent failure to comply with tier-two
requirements of compactness and utilization of political and geographical
boundaries where feasible, then consider[ed] any additional evidence that supports
the inference that such districts are also in violation of tier-one requirements.”
Applying this analysis as to District 5, the trial court noted that the decision
to increase the BVAP of District 5 over 50% was made at a non-public meeting at
the end of the redistricting process and ultimately found that there was no showing
“that it was legally necessary to create a majority-minority district.” The trial court
therefore concluded that the challengers had proved “that District 5 unnecessarily
subjugates tier-two principles of compactness” and that “portions of District 5 were
drawn to benefit the Republican Party, in violation of tier-one.”
As to District 10, the trial court noted an “odd-shaped appendage” and found
that the challengers had “shown that the district could be drawn in a more compact
fashion, avoiding this appendage.” The trial court therefore concluded, based in
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part on an inference it drew from the existence of the odd-shaped appendage that
had no legal justification, that District 10 was drawn to benefit the Republican
Party and the incumbent.
Accordingly, the trial court required Districts 5, 10, and “any other districts
affected thereby” to be redrawn. But the trial court rejected the challenges to
Districts 13, 14, 21, 22, 25, 26, and 27, concluding that the challengers had not met
their burden to demonstrate unconstitutionality and had not shown more than “de
minimis” tier-two violations.
As a remedy, the challengers urged the trial court to adopt one of their
remedial plans, draw its own remedial plan, or hire an independent expert to draw
a remedial plan. After a hearing, the trial court declined the challengers’
suggestions and determined that the Legislature should redraw the plan.
The Legislature held a special session in August 2014 to enact a remedial
redistricting plan. During this session, the chairs of the respective redistricting
committees again conducted non-public meetings with staff and counsel to
negotiate the features of the revised plan. The Legislature made modest changes to
correct the specific tier-two deficiencies identified in Districts 5 and 10,8 and, after
8. In redrawing Districts 5 and 10, the Legislature’s remedial redistricting
plan also slightly altered the boundaries of five other congressional districts—
Districts 6, 7, 9, 11, and 17. All of the remaining districts were unchanged from
the configuration enacted in the Legislature’s 2012 redistricting plan.
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the plan was signed into law, the trial court held another hearing to consider the
validity of the revised plan and whether it could be implemented in time for the
2014 elections.
Concluding that the challengers’ objections to the validity of the remedial
plan were without merit, the trial court approved the Legislature’s remedial
redistricting plan and ordered the then-impending 2014 elections to proceed under
the unconstitutional 2012 plan due to time constraints, with the remedial plan to
take effect for the 2016 elections. The 2016 effective date for the remedial plan
has not been challenged.
The challengers appealed the trial court’s initial order containing its factual
findings and legal conclusions, as well as its subsequent order approving the
remedial redistricting plan, and the Legislature cross-appealed, attacking certain
aspects of the trial court’s judgment but ultimately seeking affirmance of the order
approving the remedial plan. The First District Court of Appeal then certified the
trial court’s judgment for direct review by this Court. See League of Women
Voters of Fla. v. Detzner, No. 1D14-3953, 2014 WL 4851707, at *2 (Fla. 1st DCA
Oct. 1, 2014). We accepted jurisdiction under article V, section 3(b)(5), of the
Florida Constitution, and heard oral argument. See League of Women Voters of
Fla. v. Detzner, No. SC14-1905, 2014 WL 5502409, at *1 (Fla. Sup. Ct. order filed
Oct. 23, 2014).
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III. ISSUES OF “INTENT”
Having set forth this comprehensive background, we now turn to the legal
issues pertaining to the trial court’s finding of unconstitutional intent. First, we
consider the “intent” standard itself and whether the trial court correctly applied
the standard in this case. Then, we review the legal sufficiency of the trial court’s
finding.
A. THE “INTENT” STANDARD
Article III, section 20, of the Florida Constitution, prohibits an
apportionment plan or individual district from being “drawn” with the “intent to
favor or disfavor a political party or an incumbent.” Art. III, § 20(a), Fla. Const.
All parties in the litigation, the trial court stated, “agreed that it is the Legislature’s
intent”—not the intent of, for instance, one rogue “staff member charged with
actually drawing the map,” or of political consultants with no influence on the
Legislature—“that is at issue.” But how to determine the Legislature’s intent in
this unique context, where the Florida Constitution contains an explicit prohibition
on certain improper legislative intent in “draw[ing]” the redistricting plan, is a
much more difficult proposition.
In Apportionment I, 83 So. 3d at 617, this Court explained that “the Florida
Constitution prohibits drawing a plan or district with the intent to favor or disfavor
a political party or incumbent.” (Emphasis supplied.) There is, this Court held,
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“no acceptable level of improper intent.” Id. The “intent” standard “applies to
both the apportionment plan as a whole and to each district individually.” Id.(emphasis supplied). This Court’s precedent discussing the “intent” standard in the
course of prior cases during this litigation has demonstrated this principle—that
improper intent, particularly if “part of a broader process to develop portions of the
map,” may “directly relate to whether the plan as a whole or any specific districts
were drawn with unconstitutional intent.” Apportionment IV, 132 So. 3d at 150(emphasis supplied).
In a traditional lawsuit involving a challenge to a statutory enactment, courts
determine legislative intent through statutory construction, looking to the actual
language used and any other tools—such as the history of legislative changes and
any appropriate interpretive canons—to assist in discerning the Legislature’s intent
in enacting the law. See, e.g., Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189,
198-99 (Fla. 2007) (setting forth the general principle of statutory interpretation
that “legislative intent is determined primarily from the statute’s text” and applying
rules of statutory construction “to determine the legislative intent behind the
provision,” including reading related statutory provisions together to achieve a
consistent whole and avoiding readings that would render part of a statute
meaningless). As this Court has previously explained, however, determining
whether the Legislature acted with the type of improper “intent” that is prohibited
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by the “specific constitutional mandate of article III, section 20(a), is entirely
different than a traditional lawsuit that seeks to determine legislative intent through
statutory construction.” Apportionment IV, 132 So. 3d at 150.
Specifically, this Court held in largely rejecting claims of legislative
privilege in Apportionment IV that, because the decision-making process itself is
the case, “the communications of individual legislators or legislative staff
members, if part of a broader process to develop portions of the map, could
directly relate to whether the plan as a whole or any specific districts were drawn
with unconstitutional intent.” Id. This Court further stated that the “existence of a
separate process to draw the maps with the intent to favor or disfavor a political
party or an incumbent is precisely what the Florida Constitution now prohibits,”
and that evidence of this separate process would “clearly” be “important” to help
support a “claim that the Legislature thwarted the constitutional mandate.” Id. at
149.
Following this Court’s precedent, which “emphasize[s] that this case is
wholly unlike the traditional lawsuit challenging a statutory enactment,” id. at 151,
the trial court framed the “intent” inquiry as determining “the motive in drawing”
the districts. We agree that this was the correct approach. Under this framework,
the trial court appropriately concluded that “the actions and statements of
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legislators and staff, especially those directly involved in the map drawing
process[,] would be relevant on the issue of intent.”
Case law supports the trial court’s conclusion, which is consistent with our
decision in Apportionment IV, that the intent of individual legislators and
legislative staff members involved in the drawing of the redistricting plan is
relevant in evaluating legislative intent. The United States Supreme Court, for
example, has recognized that the actions of individual legislators and staff
members may be relevant in discerning legislative intent in the context of
redistricting.
In Easley v. Cromartie, 532 U.S. 234, 254 (2001), the Supreme Court
reviewed “direct” evidence, relied on by a federal district court evaluating a claim
of racial predominance in North Carolina’s congressional redistricting plan,
involving an e-mail sent from “a legislative staff member responsible for drafting
districting plans” to two state senators. The Supreme Court noted that the e-mail’s
“reference to race” offered “some support” for the district court’s conclusion that
the North Carolina Legislature used race as the “predominant factor” in drawing
the boundaries of a particular district. Id.; see also Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977) (stating that the “specific
sequence of events leading up to the challenged decision also may shed some light
on the decisionmaker’s purposes” and that “[d]epartures from the normal
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procedural sequence also might afford evidence that improper purposes are playing
a role”).
Other redistricting cases have confirmed this principle. In Texas v. United
States, 887 F. Supp. 2d 133, 165 (D.D.C. 2012),9 cited by the trial court, a three-
judge federal district court panel stated that its “skepticism about the legislative
process that created [a challenged district] [wa]s further fueled by an email sent
between staff members on the eve of the Senate Redistricting Committee’s markup
of the proposed map.” See also Smith v. Beasley, 946 F. Supp. 1174, 1210 (D.S.C.
1996) (stating that “the evidence [wa]s clear that the Reapportionment
Subcommittee delegated to its staff . . . the responsibility of drawing the district
lines,” and subsequently evaluating the actions of those staff members). In other
words, the federal district court looked to the actions of legislative staff members
directly involved in the redistricting process to assist in evaluating whether the
Legislature was acting with improper intent. Whether the actions of individual
legislators or staffers ultimately signify constitutionally improper intent—as the
trial court concluded in this case, despite finding the professional staff to be
9. The federal district court’s opinion in Texas was subsequently vacated on
other grounds by the United States Supreme Court after that Court issued its recent
decision in Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), holding a
portion of the Voting Rights Act unconstitutional. See Texas v. United States, 133
S. Ct. 2885 (2013).
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credible—is a separate question from whether their intent is relevant, in the first
place, to evaluating the intent of the Legislature in drawing the redistricting plan.
In support of its contrary argument that “[c]ourts across the country . . .
refuse to impute the personal motivations of individual legislators to the legislative
body as a collective whole,” the Legislature offers a catalogue of citations to cases
from other jurisdictions. But, as the challengers have pointed out, these cases and
the arguments made by the Legislature in this case closely mirror the exact cases
and arguments this Court distinguished and rejected for the same basic principle in
Apportionment IV.
In that case, this Court specifically stated that “this case is completely
distinguishable from the various circuit court orders and cases outside the
reapportionment context from other jurisdictions cited by the Legislature that have
quashed subpoenas of legislators or legislative staff members where the testimony
of an individual member of the Legislature was not directly relevant to any issue in
the case.” Apportionment IV, 132 So. 3d at 150. Indeed, in Apportionment IV, we
determined that the actions of the individual legislators and legislative staff
members involved in the drawing of the redistricting plan were directly relevant to
assessing whether the plan itself was drawn with improper intent. See id. at 137(“[T]he issue presented to the Court is whether Florida state legislators and
legislative staff members have an absolute privilege against testifying as to issues
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directly relevant to whether the Legislature drew the 2012 congressional
apportionment plan with unconstitutional partisan or discriminatory ‘intent.’ ”).
Accordingly, we hold that the trial court correctly framed the “intent”
inquiry and reject the Legislature’s assertion that the finding of unconstitutional
intent could not be ascribed to the Legislature as a whole. Having reached the
conclusion that the trial court did not err in evaluating the actions of legislators and
legislative staff members in finding unconstitutional “intent,” as prohibited by
article III, section 20, we turn next to the legal sufficiency of the trial court’s
finding.
B. LEGAL SUFFICIENCY OF UNCONSTITUTIONAL INTENT
Our review of the trial court’s finding of unconstitutional intent in the
congressional redistricting plan takes place against the backdrop of the trial court’s
specific finding that the Legislature “systematically deleted almost all of their e-
mails and other documentation relating to redistricting.” The Legislature did so
despite knowledge that litigation over the constitutionality of its redistricting plan
was inevitable.
In fact, as far back as 2008, the Legislature argued to this Court that
“litigation challenging reapportionment under the new standards” would increase
as a result of the Fair Districts Amendment. See Advisory Op. to Att’y Gen. re
Standards for Establishing Legislative Dist. Boundaries, 2 So. 3d 161, 165 (Fla.
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2009). And, the Legislature informed the trial court in this case that litigation “was
‘imminent’ long before the days preceding the filing of” the challengers’ lawsuit.
From “start to finish,” the Legislature asserted, the 2012 redistricting process,
“more than any other, was conducted in an atmosphere charged with litigation.”
To be sure, the Legislature did preserve some records related to
redistricting—documents showing, for instance, the time and location of public
meetings or other generally benign details of the process. But the Legislature
saved virtually no communications among legislators and staff and none of the
communications—which, as a result of this case, we now know to have occurred—
involving the outside political consultants.
The Legislature had no specific policy requiring it to preserve
communications regarding redistricting, even though it knew litigation was certain
to occur, and admits that its record-retention policies applied in the same manner to
redistricting as they applied to all types of legislative business. The House’s
policy, for example, specified that “records that are no longer needed for any
purpose and that do not have sufficient administrative, legal, or fiscal significance
to warrant their retention shall be disposed of systematically.” Fla. H.R. Rule
14.2(b) (2010-2012).
To the extent the Legislature argues that it had no reason to know it needed
to preserve these records because it could not have anticipated this Court’s
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decision in Apportionment IV rejecting its broad claim of legislative privilege over
communications related to redistricting, the Legislature had, according to
testimony at trial, determined as early as January 2011 that no privilege would
apply to any of its communications with outside political consultants. In other
words, the Legislature clearly knew that communications between, for instance,
Speaker Cannon and consultant Reichelderfer would not be privileged, that they
would be sought in litigation, and that litigation was certain to occur. Yet, Speaker
Cannon did not preserve these records—and the only reason we now know these
communications occurred is because records were produced during the litigation
by Reichelderfer. The same is true of non-public draft redistricting maps sent to
Reichelderfer by legislative staffer Kirk Pepper, using a personal e-mail account
and a since-deleted “Dropbox” account.
The trial court stated that there was “no legal duty on the part of the
Legislature to preserve these records, but you have to wonder why they didn’t,”
given that litigation was certain to occur. Although the Legislature’s failure to
preserve records apparently did not violate a specific rule of legislative procedure
regarding records retention—even though at least some of these records likely did
have sufficient legal significance to have warranted their retention—Florida courts
have, in any event, found a duty to preserve evidence in other circumstances when
a party should reasonably foresee litigation. See Am. Hospitality Mgmt. Co. of
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Minn. v. Hettiger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005) (noting holdings that
“a defendant could be charged with a duty to preserve evidence where it could
reasonably have foreseen the claim”). And this Court, in rejecting the
Legislature’s broad claim of legislative privilege in Apportionment IV, clearly held
that the “purpose behind the voters’ enactment of the article III, section 20(a),
standards will be undermined” if “the Legislature alone is responsible for
determining what aspects of the reapportionment process are shielded from
discovery.” 132 So. 3d at 149.
Even in the absence of a legal duty, though, the spoliation of evidence
results in an adverse inference against the party that discarded or destroyed the
evidence. As this Court explained in Martino v. Wal-Mart Stores, Inc., 908 So. 2d
342, 346 (Fla. 2005), Florida courts may impose sanctions, including striking
pleadings, against a party that intentionally lost, misplaced, or destroyed evidence,
and a jury could infer under such circumstances that the evidence would have
contained indications of liability. If the evidence was negligently destroyed, a
rebuttable presumption of liability may arise. Id. at 347. In other words, as
recognized by the Fourth District Court of Appeal, “an adverse inference may arise
in any situation where potentially self-damaging evidence is in the possession of a
party and that party either loses or destroys the evidence.” Golden Yachts, Inc. v.
Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006) (quoting Martino v. Wal-Mart
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Stores, Inc., 835 So. 2d 1251, 1257 (Fla. 4th DCA 2003), approved, 908 So. 2d
342); see also Nationwide Lift Trucks, Inc. v. Smith, 832 So. 2d 824, 826 (Fla. 4th
DCA 2002) (stating that “[c]ases in which evidence has been destroyed, either
inadvertently or intentionally, are discovery violations” that may be subject to
sanctions).
The trial court was, therefore, justified in drawing an adverse inference
against the Legislature in adjudicating the challengers’ claim of unconstitutional
partisan intent. And we too must consider the Legislature’s “systematic[]
delet[ion]” of redistricting records in evaluating whether the trial court’s finding is
supported by competent, substantial evidence.
Turning to the merits of the trial court’s finding, we have little trouble
concluding that competent, substantial evidence of unconstitutional intent exists in
the record. The Legislature asserts that the trial court did not find improper intent
in the plan as a whole and, in particular, contends that there was no collaboration
between partisan operatives and the Legislature in drawing the congressional
redistricting plan. While acknowledging that partisan operatives “sought to
influence the redistricting process,” the Legislature states that “at no time did the
Legislature participate in their efforts.” If features from the operative-created maps
made it into the enacted map, the Legislature says, it is simply because those
features were obvious or the similarities “superficial,” and not because the
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operatives’ “frenetic efforts to make themselves relevant” were successful. In
other words, the Legislature argues that it “did not conspire with the operatives,
despite the operatives’ efforts.”
We reject the Legislature’s attempt to water down the trial court’s findings
and the inferences the trial court drew from the circumstantial evidence presented
by pointing to an alleged lack of connection between the “parallel” process and the
Legislature. The trial court found that it was “convince[d]” by the “circumstantial
evidence introduced at trial” that the political operatives “obtain[ed] the necessary
cooperation and collaboration” from the Legislature to ensure that the
“redistricting process and the resulting map” were “taint[ed]” with “improper
partisan intent.” Indeed, the trial court specifically found that the operatives “were
successful in their efforts to influence the redistricting process and the
congressional plan under review.”
Nevertheless, the Legislature asserts that any conclusion that the whole plan
was motivated by partisan intent “assumes the complicity of professional staff,”
which is an “assumption” it claims the trial court rejected. While the trial court did
find the professional staff to be “credible” and not to have been “part of the
conspiracy,” the trial court immediately dismissed the Legislature’s argument
about the effect of the staff having been insulated from the improper intent—which
it called the “most compelling evidence in support” of the Legislature’s defense—
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by stating that the “political operatives managed to find other avenues, other ways
to infiltrate and influence the Legislature, to obtain the necessary cooperation and
collaboration” to “taint the redistricting process and the resulting map with
improper partisan intent.” And while the trial court made no explicit credibility
determinations regarding any of the legislators who testified, the trial court did
specifically reject the innocuous explanations provided by former Speaker Cannon
and his staffer, Pepper, for their communications with the political consultants.
There is also no doubt that the trial court’s finding of unconstitutional intent
pertained to the “process” of redistricting and the “enacted map” as a whole—to
use the trial court’s own words—rather than solely to the two specifically
invalidated districts as the Legislature contends. In finding “too much
circumstantial evidence” to reach any conclusion other than that the “redistricting
process” and the “resulting map” were “taint[ed]” by “improper partisan intent,”
the trial court pointed specifically to the following evidence: the Legislature’s
destruction of “almost all” e-mails and “other documentation relating to
redistricting”; early meetings between legislative leaders and staff with political
consultants regarding the “redistricting process”; and the “continued involvement”
of political consultants in the “redistricting process.” None of this evidence relied
on by the trial court was district-specific. The dissent’s contrary interpretation of
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the trial court’s finding of unconstitutional intent renders meaningless the trial
court’s extensive discussion of—and critical findings related to—this evidence.
We also reject the Legislature’s suggestion that the trial court’s
determination, in its order approving the remedial redistricting plan, that the
Legislature had corrected the identified deficiencies in the map is dispositive in
evaluating the scope of its finding of unconstitutional intent. Instead, as detailed in
the next sections, the trial court’s decision to approve the Legislature’s remedial
redistricting plan flowed from the legal errors made in its original judgment.
Accordingly, for all these reasons, we affirm the trial court’s finding of
unconstitutional intent. We turn next to the trial court’s two legal errors, which
significantly affected its determination of the proper effect of its finding that the
Legislature violated the Florida Constitution.
IV. TRIAL COURT’S FIRST LEGAL ERROR: FAILING TO PROPERLY
ANALYZE THE CHALLENGE TO THE PLAN “AS A WHOLE”
The first legal error committed by the trial court was its determination that
there was no distinction between a challenge to the redistricting plan “as a whole”
and a challenge to individual districts. This error led to the trial court’s failure to
give any independent legal significance to its finding of unconstitutional intent
when examining the challenges to individual districts.
Specifically, the evidence presented and considered by the trial court—
evidence that actually led the trial court to find the existence of constitutionally
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improper partisan intent—included evidence pertaining both to the plan “as a
whole” and to “specific districts.” Indeed, the trial court explicitly noted this,
stating that “[o]ne of [the challengers’] claims is that the entire redistricting
process was infected by improper intent.” (Emphasis supplied.)
Yet, despite its findings that partisan political consultants had “made a
mockery” of the process and “managed to taint the redistricting process and the
resulting map with improper partisan intent,” the trial court rejected the
challengers’ distinction between their challenge to improper intent in the
redistricting plan “as a whole”—a challenge, in effect, to the map that was
produced from the process—and their challenge to “individual districts,” stating as
follows:
[The challengers] distinguish between their challenge to the
redistricting plan as a whole, as being drawn with the intent generally
to favor the Republican Party, and their challenge to several
individual districts, as being specifically drawn with such intent. I
find this to be a false dichotomy, a distinction without difference. The
redistricting plan is the result of a single act of legislation. If one or
more districts do not meet constitutional muster, then the entire act is
unconstitutional. The districts are part of an integrated indivisible
whole. So in that sense, if there is a problem with a part of the map,
there is a problem with the entire plan. [FN 5]
[FN 5] This is consistent with the approach taken by
[this] Court in Apportionment I. The Court invalidated
the entire Senate plan but gave specific instructions as to
which districts required corrective action. Id. at 684-686.
That does not mean, however, that portions of the map not
affected by those individual districts found to be improperly drawn
would need to be changed in a redrawn map, even if a general intent
to favor or disfavor a political party or incumbents was proven. What
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would be the point if the other districts are otherwise in compliance?
Such a remedy would go far beyond correcting the effect of such
noncompliance, but rather would require a useless act that would
encourage continued litigation. Therefore, I have focused on those
portions of the map that I find are in need of corrective action in order
to bring the entire plan into compliance with the constitution.
(Emphasis supplied.)
The dissent asserts that “[a]t no point does the trial court indicate that it
would permit some level of unconstitutional intent in the drawing of any district.”
Dissenting op. at 114. But the trial court specifically concluded that districts could
be “in compliance” with the constitutional standards “even if a general intent to
favor or disfavor a political party or incumbents was proven.” This statement
clearly indicates that the trial court considered a general improper intent to lack
any independent legal significance unless it was accompanied by another
constitutional violation, which is an interpretation that simply does not square with
the Florida Constitution or this Court’s precedent.
This Court has held that “the Florida Constitution prohibits drawing a plan”
with improper intent. Apportionment I, 83 So. 3d at 617. This Court has also held
that “there is no acceptable level of improper intent.” Id. And, this Court has held
that the “intent” standard “applies to . . . the apportionment plan as a whole.” Id.Accordingly, under these holdings, the trial court’s “general” finding of improper
intent in the “process” must have some independent legal significance.
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The trial court, however, failed to give effect to that finding of improper
intent, in part because it never separately considered the challenge to the plan as a
whole and, critically, never gave any weight to the general improper intent in
analyzing the individual district challenges. The challengers correctly note that the
trial court’s finding of improper intent was based extensively on the existence of a
“different, separate process that was undertaken contrary to the [Legislature’s
public] transparent [redistricting] effort in an attempt to favor a political party or an
incumbent.” Apportionment IV, 132 So. 3d at 149. And, as this Court stated in
Apportionment IV, the existence of such a “parallel” process is “important
evidence in support of the claim that the Legislature thwarted the constitutional
mandate.” Id.In error, the trial court gave no legal weight to the existence of this separate
process. The trial court’s decision to invalidate District 5 was supported by
numerous factors distinct from the “parallel” process, including that the district as
enacted was “not compact,” was “bizarrely shaped,” and did not “follow traditional
political boundaries as it winds from Jacksonville to Orlando,” narrowing at one
point to the width of a highway. The trial court found improper intent to benefit
the Republican Party as to District 5 based on “the decision to increase the district
to majority BVAP, which was accomplished in large part by creating [a] finger-
like appendage jutting into District 7.” Then, the trial court simply “buttressed”
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this “inference” of improper intent, based on the existence of the “oddly shaped
appendage[],” through “the evidence of improper intent in the redistricting process
generally, and as specifically related to the drawing of District 5,” but did not
independently rely on the “general” improper intent in any legally significant way.
In other words, aside from referencing the increase in the BVAP of District
5 over 50% during a non-public meeting at the end of the redistricting process, the
trial court’s decision to invalidate District 5 was based solely on blatant tier-two
violations. While this Court had to resort to evaluating tier-two violations as a
means to infer improper intent when considering the challenges to the Senate and
House maps in Apportionment I, as we emphasized at that time, we were
constrained because we had no factual record and no direct evidence of improper
intent. Exactly the opposite was true in this case.
The trial court’s decision to invalidate District 10 is analogous. Noting an
“odd-shaped appendage which wraps under and around District 5, running between
District 5 and 9,” the trial court stated that the challengers had “shown that the
district could be drawn in a more compact fashion, avoiding this appendage.” The
trial court’s conclusion that District 10 “was drawn to benefit the Republican Party
and the incumbent” was “based in part on the inference that the Florida Supreme
Court suggested [in Apportionment I] could be drawn from oddly shaped
appendages that had no legal justification”—an “inference” that, as with District 5,
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was simply “buttressed by the general evidence of improper intent” in the process
and by objective indicators relied on by this Court in Apportionment I.
In rejecting challenges to seven other individual districts, the trial court
never referred to the “general evidence of improper intent” that it found to exist in
the “process.” Rejecting the challenge to Districts 13 and 14, in the Tampa Bay
area, the trial court stated that, “[u]nlike Districts 5 and 10, there are no flagrant
tier-two deviations” from which the trial court could “infer” improper intent.
“[U]nlike changes made to District 5 by the [legislative] leaders during conference
committee”—the “evidence of partisan intent specifically related to District 5,”
where the House agreed with the Senate’s request to push the BVAP over 50%—
the trial court determined that it could not conclude, “on partisan effect alone,” that
certain decisions were made in drawing Districts 13 and 14 “with the intent to
benefit the Republican Party or the incumbent member of Congress.”
Likewise rejecting the challenge to Districts 21 and 22, the trial court
concluded that the challengers had “not met their burden of showing unnecessary
deviation from tier-two requirements,” nor had they “shown that improper intent
led to the adoption of Districts 21 and 22.” Similarly, with respect to Districts 25,
26, and 27, the trial court determined that the challengers had “not proved
invalidity” because the “totality of the evidence” did not establish that the
“configuration” of these districts “was based on unlawful partisan intent.” At no
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point in addressing the validity of any of these districts—in which the trial court
rejected the challengers’ contention that the districts were drawn with improper
partisan intent—did the trial court address any effect of its findings regarding how
the “process” had been “taint[ed]” with “improper partisan intent.”
In determining that there was no distinction between a challenge to the
“whole map” and a challenge to individual districts, the trial court relied on this
Court’s prior decision to invalidate the entire state Senate plan in Apportionment I.
Citing this Court’s decision as support, the trial court stated that this Court
“invalidated the entire Senate plan but gave specific instructions as to which
districts required corrective action.”
The trial court was correct that this Court invalidated the whole Senate plan,
to the extent that it determined the plan did “not pass constitutional muster” for the
purposes of this Court’s article III, section 16, declaratory judgment review.
Apportionment I, 83 So. 3d at 683. But, unlike here, this Court in Apportionment I
did not find a general improper intent in the state Senate plan, aside from the
district numbering system that was manipulated to favor incumbents. Nor could
we have, based on the nature of the limited record before us.
In Apportionment I, we expressed our conclusion regarding the Senate plan
as follows:
We have held that Senate Districts 1, 3, 6, 9, 10, 29, 30, and 34
are constitutionally invalid. The Legislature should remedy the
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constitutional problems with respect to these districts, redrawing these
districts and any affected districts in accordance with the standards as
defined by this Court, and should conduct the appropriate functional
analysis to ensure compliance with the Florida minority voting
protection provision as well as the tier-two standards of equal
population, compactness, and utilization of existing political and
geographical boundaries. As to the City of Lakeland, the Legislature
should determine whether it is feasible to utilize the municipal
boundaries of Lakeland after applying the standards as defined by this
Court. In redrawing the apportionment plan, the Legislature is by no
means required to adopt the Coalition’s alternative Senate plan.
Finally, we have held that the numbering scheme of the Senate plan is
invalid. Accordingly, the Legislature should renumber the districts in
an incumbent-neutral manner.
Id. at 686.
In other words, this Court identified very specific deficiencies in the Senate
plan—eight individual districts that were invalid, the failure to conduct a
functional analysis, and the district numbering scheme. This Court did not
conclude that the whole plan was unconstitutional because of improper intent in
the whole plan, and this Court did not analyze—and could not have analyzed—the
plan in that manner. Therefore, in relying on Apportionment I in this way, the trial
court failed to give any actual effect to its finding in this case that the “whole plan”
challenge had been proven through the direct and circumstantial evidence of
improper partisan intent presented at trial.
Accordingly, for all these reasons, we conclude that the trial court erred in
failing to recognize any distinction between a challenge to the redistricting plan “as
a whole” and a challenge to individual districts. This error significantly affected
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the trial court’s determination of the proper scope and legal effect of its finding of
unconstitutional intent, particularly with regard to its analysis of the challenges to
individual districts, and ultimately contributed to its decision to approve a remedy
that was effectively no different than the remedy if there had been no finding of
unconstitutional intent.
V. TRIAL COURT’S SECOND LEGAL ERROR: APPLYING A
DEFERENTIAL STANDARD OF REVIEW
The trial court’s error in failing to properly analyze the challenge to the plan
“as a whole” was compounded by its error in the deferential standard of review it
applied after finding the existence of unconstitutional intent. Certainly, we
recognize the difficult task the trial court faced, considering numerous issues of
first impression and attempting to be faithful to this Court’s redistricting decisions.
And we commend the trial court for the superb and professional manner in which it
handled this difficult litigation.
But, we conclude nevertheless that the trial court failed to recognize the
critical differences between this Court’s “facial” review of the state legislative
redistricting plans in Apportionment I and the nature of the fact-based claims
presented in this case. This legal error in the standard of review, as with the legal
error in not recognizing the independent significance of the challenge to the plan
“as a whole,” led to the trial court’s failure to give any independent legal
significance to its finding of unconstitutional intent when examining the challenges
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to individual districts. Once the trial court found unconstitutional intent, there was
no longer any basis to apply a deferential standard of review; instead, the trial court
should have shifted the burden to the Legislature to justify its decisions in drawing
the congressional district lines.
The trial court’s error as to the standard of review can be traced to its
analysis in evaluating the challengers’ claims, which it set forth as follows:
It seems that the more reliable focus in such an inquiry would be on
what was actually produced by the Legislature, the enacted map.
Specifically, an analysis of the extent to which the plan does or does
not comply with tier two requirements is a good place to start. Can
one draw a map that meets tier-two requirements but nonetheless
favors a political party or an incumbent? Sure, but it is more difficult.
Furthermore, a failure to comply with tier-two requirements not
only supports an inference of improper intent, it is an independent
ground for finding a map unconstitutional. See Apportionment I, 83
So. 3d [at] 640-641. Additional direct and circumstantial evidence of
intent may serve to strengthen or weaken this inference of improper
intent. Therefore, I first examine the map for apparent failure to
comply with tier-two requirements of compactness and utilization of
political and geographical boundaries where feasible, then consider
any additional evidence that supports the inference that such districts
are also in violation of tier-one requirements.
(Emphasis supplied.) In other words, the trial court began by asking whether there
was any tier-two violation—whether the district was compact, and whether it
followed existing political and geographical boundaries where feasible. Then, the
trial court considered the direct and circumstantial evidence of tier-one improper
intent only as “additional evidence” to “strengthen or weaken” an “inference of
improper intent” that was identifiable from tier-two deficiencies. The trial court
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did so despite finding that the direct and circumstantial evidence itself had
established a violation of the tier-one constitutional standards.
Although the trial court relied on Apportionment I as support for the
standard of review it applied, the standard from that case—a facial review based on
purely objective, undisputed evidence in the limited record before the Court—does
not directly translate to this one—a fact-intensive challenge based on direct and
circumstantial evidence developed during an adversarial trial. Discerning which
aspects of the standard set forth in Apportionment I apply and which do not is thus
of critical importance.
In Apportionment I, this Court rejected the arguments of the Attorney
General and the House of Representatives “that a challenger must prove facial
invalidity beyond a reasonable doubt,” as is generally considered to be the standard
applied to a typical lawsuit challenging the constitutionality of a legislative
enactment outside the context of redistricting. 83 So. 3d at 607. This Court
considered the “beyond a reasonable doubt” standard to be both “a departure from
[its] precedent in legislative apportionment jurisprudence” and “ill-suited” to the
nature of its review. Id. “Unlike a legislative act promulgated separate and apart
from an express constitutional mandate,” this Court stated, “the Legislature adopts
a joint resolution of legislative apportionment solely pursuant to the ‘instructions’
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of the citizens as expressed in specific requirements of the Florida Constitution
governing this process.” Id. at 607-08.
Although the legislative redistricting plan comes before this Court “with an
initial presumption of validity,” this Court explained that “the operation of this
Court’s process in apportionment cases is far different than the Court’s review of
ordinary legislative acts,” including “a commensurate difference in [its]
obligations.” Id. at 606. Noting that the “new requirements” of the Fair Districts
Amendment “dramatically alter[ed] the landscape with respect to redistricting,”
this Court held that its scope of review had “plainly increased, requiring a
commensurately more expanded judicial analysis of legislative compliance.” Id. at
607. As this Court would later reason, “the framers and voters” of the Fair
Districts Amendment “clearly desired more judicial scrutiny” of the Legislature’s
decisions in redistricting. Fla. House of Representatives v. League of Women
Voters of Fla. (Apportionment III), 118 So. 3d 198, 205 (Fla. 2013).
“It is this Court’s duty, given to it by the citizens of Florida, to enforce
adherence to the constitutional requirements and to declare a redistricting plan that
does not comply with those standards constitutionally invalid.” Apportionment I,
83 So. 3d at 607. However, this Court acknowledged in the context of its review in
Apportionment I that it would “defer to the Legislature’s decision to draw a district
in a certain way, so long as that decision does not violate the constitutional
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requirements.” Id. at 608. This Court emphasized that its “responsibility [wa]s
limited to ensuring compliance with constitutional requirements.” Id.“[E]ndeavoring to be respectful to the critically important role of the Legislature,”
this Court stated that its duty was “not to select the best plan, but rather to decide
whether the one adopted by the legislature is valid.” Id. (quoting In re
Apportionment Law—1992, 597 So. 2d at 285).
Echoing this Court’s language in Apportionment I, the trial court
determined—based on “the nature of the legislation and the nature of what is
reviewed”—that it should apply the same standard to the challenge presented in
this case. Therefore, reciting the principles from Apportionment I, the trial court
set forth the standard for its review as follows:
I will therefore, in this case, apply the standard of review
articulated in Apportionment I, deferring to the Legislature’s decision
to draw a district in a certain way, so long as that decision does not
violate the constitutional requirements, with an understanding of my
limited role in this process and the important role of the Legislature.
My duty “is not to select the best plan” but to determine whether [the
challengers] have proved the plan invalid. Apportionment I, 83 So. 3d
597 at 608.
The trial court then cited this standard, and its deferential review, in rejecting
challenges to certain individual districts.
We conclude that the trial court was correct, initially, in rejecting the
“beyond a reasonable doubt” standard, as this Court did in Apportionment I. As
this Court stated, “[u]nlike a legislative act promulgated separate and apart from an
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express constitutional mandate, the Legislature adopts a joint resolution of
legislative apportionment solely pursuant to the ‘instructions’ of the citizens as
expressed in specific requirements of the Florida Constitution governing this
process.” Apportionment I, 83 So. 3d at 607-08. Just as there is a difference in
evaluating legislative intent with respect to the specific constitutional mandate
outlawing improper partisan intent in redistricting, so too is there “a difference
between the Court’s role in reviewing a legislative apportionment plan to
determine compliance with constitutionally mandated criteria and the Court’s role
in interpreting statutes.” Id. at 607 n.5. The “reason for the different standard,”
the trial court correctly noted, is that “the inquiry is into the process, the end result,
and the motive behind the legislation”—not “a question of searching for a
reasonable interpretation of a statute which would make it constitutional.”
In this respect, the trial court was right to rely on Apportionment I in
concluding that the nature of the legislation and the specific constitutional mandate
outlawing partisan political gerrymandering require a different standard of review
than applied in traditional cases challenging legislative enactments. Where the
trial court erred, however, was in discounting the differences between
Apportionment I and this case to conclude that the same standard must apply, even
though this case involved direct and circumstantial evidence of tier-one
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constitutional violations that this Court had no ability to review in Apportionment
I.
As this Court has explained, its review in Apportionment I was quite
different than the challenge presented in this case. Unlike the fact-intensive
challenge here, in which the parties had an opportunity to present extensive
evidence during an adversarial trial pertaining to whether the plan and individual
districts were drawn with improper intent, this Court’s review in Apportionment I
was “a facial review based on objective, undisputed evidence in the limited record
before the Court.” Apportionment III, 118 So. 3d at 200.
In Apportionment I, 83 So. 3d at 634, this Court looked to objective
measures and tier-two requirements—such as the existence of “bizarre shape[s]”
and “appendages”—in an effort to discern whether the map was drawn with
improper intent. As this Court stated, “in the context of Florida’s constitutional
provision, a disregard for the constitutional requirements set forth in tier two is
indicative of improper intent, which Florida prohibits by absolute terms.” Id. at
640.
The evidence of improper intent in this case, to the contrary, involved direct
and circumstantial evidence of tier-one violations of the constitutional intent
standard. Yet, despite the existence of testimony and fact-based claims regarding
improper intent from a voluminous record that extended far beyond the legislative
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record to which this Court was constrained in Apportionment I, the trial court still
determined that tier-two requirements—compactness and the use of political and
geographical boundaries where feasible—were the “more reliable” indicators of
improper intent, explaining that “a failure to comply with tier-two requirements”
would “support[] an inference of improper intent,” and that “[a]dditional direct and
circumstantial evidence of intent may serve to strengthen or weaken this inference
of improper intent.” Based on this assumption, the trial court proceeded to “first
examine the map for apparent failure to comply with tier-two requirements of
compactness and utilization of political and geographical boundaries where
feasible, [and] then consider[ed] any additional evidence that supports the
inference that such districts are also in violation of tier-one requirements.”
Not surprisingly under this framework of analysis, only where the trial court
found a tier-two violation—the appendages in Districts 5 and 10—did the trial
court conclude that a district had been drawn with improper intent to favor a
political party or incumbent. The independent finding that the “redistricting
process” and the “resulting map” were “taint[ed]” with “improper partisan intent”
was relegated to “buttress[ing]” the “inference” of improper intent based on the
tier-two violation.
We conclude that the trial court erred in focusing first on tier-two violations
at the expense of the evidence of tier-one violations—violations it specifically
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found based on the evidence presented. The trial court’s error was then
exacerbated by its decision to apply an unduly deferential standard to its review of
the map, even after finding the existence of unconstitutional partisan intent.
Certainly, this Court explained in Apportionment I that the judiciary’s role
in reviewing an apportionment plan enacted by the Legislature is “not to select the
best plan, but rather to decide whether the one adopted by the legislature is valid.”
Apportionment I, 83 So. 3d at 608 (quoting In re Apportionment Law—1992, 597
So. 2d at 285). At that time, this Court stated the general principle that it would
“defer to the Legislature’s decision to draw a district in a certain way, so long as
that decision does not violate the constitutional requirements.” Id.But, in Apportionment I, this Court was conducting a “facial” review of the
legislative apportionment plan, without fact-finding, to determine whether any
improper intent existed in the plan. Unlike that context, here, the trial court found
the existence of improper intent, based on evidence presented during an adversarial
trial, yet still applied a deferential standard of review. That was error.
The trial court conducted its review as if it were premature to directly
address the impact of the tier-one violations the trial court itself specifically found.
In particular, the trial court found that the Legislature had “cooperat[ed]” and
“collaborat[ed]” with partisan political operatives to draft an apportionment plan
favoring the Republican Party and incumbents—in other words, a finding of a tier-
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one constitutional violation. While the Legislature is generally entitled to
deference as a result of its role in the redistricting process, that deference applies
only “so long as [its redistricting] decision[s] do[] not violate the constitutional
requirements.” Apportionment I, 83 So. 3d at 608.
Once a tier-one violation of the constitutional intent standard is found, there
is no basis to continue to afford deference to the Legislature. To do so is to offer a
presumption of constitutionality to decisions that have been found to have been
influenced by unconstitutional considerations. The existence of unconstitutional
partisan intent is contrary to the very purpose of the Fair Districts Amendment and
to this Court’s pronouncements regarding the state constitutional prohibition on
partisan political gerrymandering.
Accordingly, after reaching the conclusion that the “redistricting process”
and the “resulting map” had been “taint[ed]” by unconstitutional intent, the burden
should have shifted to the Legislature to justify its decisions, and no deference
should have been afforded to the Legislature’s decisions regarding the drawing of
the districts. In other contexts, states have placed the burden on their legislatures
to justify the validity of a redistricting plan when the plan has “raised sufficient
issues” with respect to state constitutional requirements. In re Legislative
Districting of State, 805 A.2d 292, 325 (Md. 2002).
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Because there are many ways in which to draw a district that complies with,
for example, the constitutional requirement of compactness, which party bears the
burden of establishing why a decision was made to accept or reject a particular
configuration can ultimately be determinative. This can be seen in reviewing the
seven maps initially released to the public by the House.
All of these maps were considered by the Legislature to be maps that
complied with the tier-two constitutional standards. But, in one of the maps,
designated as H000C9001, there were as few as 14 Republican districts based on
2008 presidential election data and 15 Republican districts based on 2012
presidential data. In the map chosen by the House to move forward in the process,
designated as H000C9011, there were 16 Republican districts under both the 2012
and 2008 presidential results. And, after additional revisions, the Legislature’s
enacted map performed with 17 Republican districts under the 2008 data and 16
using the 2012 data—actually more favorable to Republicans than the performance
of the admittedly gerrymandered 2002 districts under the same data.10 This
consistent improvement in the Republican performance of the map—even when
10. The 2002 benchmark plan performed with 15 Republican districts under
the 2008 presidential data and 14 Republican districts under the 2012 data, though
there were only twenty-five total districts in that map, as compared to twenty-seven
total districts in the 2012 map after Florida gained two districts based on the results
of the 2010 Census.
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comparing maps the Legislature itself produced and considered tier-two
compliant—reveals that there are many ways to draw constitutionally compliant
districts that may have different political implications.
Since the trial court found that the Legislature’s intent was to draw a plan
that benefitted the Republican Party, the burden should have been placed on the
Legislature to demonstrate that its decision to choose one compact district over
another compact district, or one tier-two compliant map over another tier-two
compliant map, was not motivated by this improper intent. This is particularly true
where the challengers presented evidence that the Legislature’s choices ultimately
benefitted the Republican Party and also showed alternative maps that performed
more fairly.11 Unlike in Apportionment I, where this Court remained deferential to
the Legislature’s decisions in the absence of a finding of improper intent, there is
11. The Legislature has strongly disputed the relevance of these alternative
maps, going so far as to assert that this Court should not consider the alternative
maps at all because they were either drawn by partisan operatives aligned with the
Democratic Party or of unknown origin. But alternative maps are not on trial
themselves, as is the Legislature’s map, and they can provide “relevant proof that
the Legislature’s apportionment plans consist of district configurations that are not
explained other than by the Legislature considering impermissible factors, such as
intentionally favoring a political party or an incumbent”—as the trial court found
the Legislature to have done in this case. Apportionment I, 83 So. 3d at 611.
Nevertheless, we have reviewed only the alternative maps actually introduced into
evidence during the trial and remedial proceedings, rather than any of the
summary-judgment maps, and have relied on those maps only insomuch as they
show alternate ways—not necessarily the best or legally required way—to
configure the districts.
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no longer any basis for this Court to be deferential to the Legislature in fulfilling its
own “solemn obligation to ensure that the constitutional rights of its citizens are
not violated and that the explicit constitutional mandate to outlaw partisan political
gerrymandering . . . in redistricting is effectively enforced.” Apportionment IV,
132 So. 3d at 137.
VI. LEGAL EFFECT OF FINDING UNCONSTITUTIONAL INTENT
Having now concluded that the trial court erred in the standard of review it
applied, we proceed to consider the legal effect of the trial court’s finding of
unconstitutional intent under the appropriate standard. In so doing, we reject the
dissent’s view that we have “transgressed the boundaries of proper appellate
review” and “abandon[ed]” the “restraints of the appellate process.” Dissenting
op. at 122, 124. The Legislature vigorously defended the challenged districts.
Rather than foster additional delay and risk another election under unconstitutional
districts, we have all the record evidence necessary to evaluate now whether the
Legislature’s justifications can withstand legal scrutiny.
A. DISTRICT 5
We begin with District 5, which has been a focal point of the challenge to
the Legislature’s redistricting plan. Initially, the trial court invalidated District 5 as
“visually not compact, bizarrely shaped,” and in contravention of “traditional
political boundaries as it winds from Jacksonville to Orlando,” narrowing at one
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point to the width of a highway. After the Legislature removed an appendage from
Seminole County and widened the district, however, the trial court upheld the
remedial version of District 5, concluding that while still “not a model of
compactness,” the revised district is “much improved.” Deferring to the
Legislature, the trial court summarily rejected the challengers’ proposed East-West
configuration of the district, determining that although this configuration was
“somewhat more compliant” with the constitutional standards, there were
“legitimate non-partisan policy reasons for preferring a North-South configuration
for this district over an East-West configuration.”
The trial court did not elaborate as to what any of these “non-partisan policy
reasons” were. The only legal justification offered by the Legislature, with the
support of the Florida State Conference of NAACP Branches, for preferring a
North-South configuration to an East-West orientation is to comply with the
minority voting protection requirements of the Florida Constitution and the federal
Voting Rights Act—specifically, that a North-South configuration is necessary to
avoid diminishing the ability of black voters to elect a candidate of their choice.
The challengers contend, though, that the North-South configuration of this
district is a linchpin to the Legislature’s efforts to draw a map that favors the
Republican Party. They allege that the North-South configuration overpacks
Democratic-leaning black voters into the district—that is, places more black voters
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in the district than is necessary to ensure that they can elect a candidate of choice—
thereby diluting the influence of Democratic minorities in surrounding districts.
The challengers rely in part on a trilogy of cases in federal court that trace the
unique history of this district, culminating in a 2002 decision from a three-judge
panel finding that the Legislature’s “overriding goal with respect to congressional
reapportionment” was to adopt a plan that “would maximize the number of
districts likely to perform for Republicans.” Martinez, 234 F. Supp. 2d at 1300-01;
see also DeGrandy v. Wetherell, 794 F. Supp. 1076, 1087-88, 1090 (N.D. Fla.
1992) (adopting a redistricting plan drawn by an independent expert, which created
the predecessor to District 5 as a black majority-minority district); Johnson v.
Mortham, 926 F. Supp. 1460, 1466-67, 1472, 1495 (N.D. Fla. 1996) (noting that
the prior version of District 5 split every one of the fourteen counties that made up
the district, and even split individual precincts, and declaring that the district was
“racially gerrymandered” in violation of the Equal Protection Clause).
Even as redrawn by the Legislature and approved by the trial court, District
5 clearly does not strictly adhere to the Florida Constitution’s tier-two
requirements of compactness and the utilization of political or geographical
boundaries where feasible. It splits seven counties and has numerical compactness
scores of .127 on the Reock measure and .417 on the Convex Hull measure, where
1 is the best score. The critical determination, then, is whether the North-South
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configuration of this district, which extends from Jacksonville to Orlando, is
necessary to comply with either the federal Voting Rights Act or the tier-one state
constitutional requirement that no district shall be drawn in such a way as to
diminish the ability of black voters to elect a representative of their choice—the
justifications offered by the Legislature.
Having reviewed the arguments of the parties in detail and studied the
unique nature of this district, we conclude that the Legislature has failed to meet its
burden to demonstrate that District 5, even as revised, passes constitutional muster.
We further conclude that, because the trial court found that District 5 was a key
component of the Legislature’s unconstitutional intent in the drawing of the
congressional redistricting plan, the trial court erred in conducting only a cursory
review of the remedial district and deferring to the Legislature’s North-South
configuration on the basis of unstated “non-partisan policy reasons.”
Since the Legislature cannot prove that the North-South configuration is
necessary to avoid diminishing the ability of black voters to elect a candidate of
their choice, we hold that District 5 must be redrawn in an East-West manner.
While the dissent suggests that this holding displaces the Legislature’s chosen
configuration with a configuration drawn by operatives aligned with the
Democratic Party, see dissenting op. at 121, the argument for an East-West
orientation of this district is not exclusive to the Democratic Party. In fact, an
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East-West orientation is the only alternative option, and one that the Legislature’s
own map drawers—insulated, the dissent itself states, from partisan influence—
considered during the redistricting process.
We reach our conclusion as to the continued unconstitutionality of District 5
for several reasons. First, the Legislature’s configuration was entitled to no
deference in light of the trial court’s finding of unconstitutional intent. The trial
court clearly found that the Legislature’s intent in drawing the congressional
redistricting plan generally, and District 5 specifically, was to benefit the
Republican Party. The Legislature’s configuration also had the effect of
benefitting the long-time incumbent of the district, Congresswoman Corrine
Brown, who previously joined with leading Republicans in actively opposing the
Fair Districts Amendment and redistricting reform. See Brown, 668 F.3d 1271.
Indeed, the remedial version of District 5 still retains approximately 80% of its
2002 benchmark—a redistricting map that was admittedly gerrymandered to favor
the Republican Party and incumbents. See Martinez, 234 F. Supp. 2d at 1340.
Retaining the same basic shape, while merely tweaking a few aspects of the
district, does not erase its history or undo the improper intent that the trial court
found. The trial court’s decision to defer to the Legislature’s configuration is
contrary to the proper standard that should have applied—shifting the burden to the
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Legislature to justify its enacted configuration—particularly where the trial court
itself continued to acknowledge that the district is “not a model of compactness.”
We conclude that the Legislature cannot justify its enacted configuration.
Despite the Legislature’s repeated contentions that a North-South orientation of the
district is the only option and is essential to avoid diminishing the ability of black
voters to elect a candidate of their choice, there is simply insufficient evidence to
support that assertion. Indeed, legislative staffer Alex Kelly initially drew an East-
West version of the district, with a BVAP of 44.96%, and concluded that such a
configuration would be constitutionally compliant. The Legislature relies on the
trial court’s finding that Kelly was straightforward and credible elsewhere, but
offers no persuasive explanation as to why this version of District 5 was rejected or
why Kelly’s assessment in this circumstance was incorrect.
During the trial, the Legislature argued that it had increased the BVAP of
District 5 over 50%—a decision made during a non-public meeting at the end of
the redistricting process—in order to prevent vote dilution and avoid retrogression.
The trial court specifically found that argument to be “not supported by the
evidence” and there to have been no showing that a majority-minority district was
“legally necessary.”
After redrawing the district, the BVAP of remedial District 5 is 48.11%.
The Legislature continues to argue that any additional diminishment in the BVAP
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would prevent black voters from electing a candidate of their choice. But neither
the evidence, nor the case law, bears this out.
As of 1996, following the decision in Johnson that required the predecessor
district to be redrawn, the predecessor to District 5 had a total black population of
47.0% and a total BVAP of 42.7%. Martinez, 234 F. Supp. 2d at 1308. By 2000,
the benchmark district had a total black population of 50.8% and a total BVAP of
46.7%. Id. The district performed for the black candidate of choice in every
election from 1992 through 2000. Id.In 2002, the total black population of the district was 51.4%. Id. at 1307.
The total BVAP was 46.9%. Id. The federal court in Martinez determined that the
BVAP of 46.9% “will afford black voters a reasonable opportunity to elect
candidates of choice and probably will in fact perform for black candidates of
choice.” Id. The actual election results show this to be true—the district has
continued to perform for the black candidate of choice in every election from 2000
through the present.
The challengers’ proposed East-West configuration of the district has a
BVAP of 45.12%—higher than the BVAP in the initial draft district drawn by
Alex Kelly. This is well within the range of the 42.7%, 46.7%, and 46.9% BVAP
percentages that were addressed by the federal court in Martinez and considered to
be sufficient to “afford black voters a reasonable opportunity to elect candidates of
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choice” and to “in fact perform for black candidates of choice.”12 Id. “This is so
in part because,” the federal court in Martinez stated,
blacks constitute 61.3% of registered Democrats in [the predecessor to
District 5], and Democrats constitute 63.8% of registered voters.
Republicans constitute only 22.7% of registered voters. Actual voting
also is strongly Democratic; in the 2000 presidential election, voters
in [the predecessor to District 5] voted 63.7% for Mr. Gore and 34.2%
for Mr. Bush. The black candidate of choice is likely to win a
contested Democratic primary, and the Democratic nominee is likely
to win the general election.
Id. at 1308.
The same logic applies to an East-West configuration of the district. Black
voters constitute 66.1% of registered Democrats under this configuration, and
Democrats constitute 61.1% of registered voters. Republicans, by contrast,
constitute only 23.0% of registered voters. This compares very favorably to the
same respective numbers in the 2002 district upheld by the federal court in
Martinez.
12. Although the dissent states that our review of minority voting strength
as to the East-West configuration of District 5 ultimately amounts to “we know
retrogression when we see it,” dissenting op. at 121, we clearly rely on long-
standing precedent applied by the three-judge federal district court panel in
Martinez—the last time this exact district was challenged. Our conclusion that a
BVAP of 45.12% does not diminish the ability of black voters to elect a candidate
of choice—a BVAP percentage squarely within the range of prior BVAP
percentages that precedent has established not to diminish the ability of black
voters to elect a candidate of choice—is hardly subjective or arbitrary.
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Thus, in an East-West orientation of the district, the black candidate of
choice is still likely to win a contested Democratic primary, since black voters
constitute 66.1% of registered Democrats. And the Democratic candidate is still
likely to win the general election, since Democratic voters outnumber Republicans
61.1% to 23.0%. In other words, just as noted in Martinez as a basis for
concluding that the prior version of District 5 afforded black voters a reasonable
opportunity to elect a candidate of choice, “[t]he black candidate of choice is likely
to win a contested Democratic primary, and the Democratic nominee is likely to
win the general election.”13 Martinez, 234 F. Supp. 2d at 1308.
The Legislature’s contrary argument rests entirely on the premise that the
BVAP of the district cannot be decreased from 48.11% to 45.12%. Of course, the
trial court already rejected the Legislature’s argument, based on the same asserted
interest in protecting black voters, that the BVAP needed to be over 50%, and in
urging this Court to uphold the revised district, the Legislature has now tacitly
conceded that 48.11% is sufficient.
13. Contrary to the dissent’s accusation that we fail to apply any objective
standard to our retrogression review of the minority voting strength of an East-
West district, see dissenting op. at 120-21, our analysis is consistent with the
standard set forth by this Court in Apportionment I: “To undertake a retrogression
evaluation requires an inquiry into whether a district is likely to perform for
minority candidates of choice.” 83 So. 3d at 625. This is precisely what we have
done with respect to a proposed East-West orientation of District 5.
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But, beyond that, the United States Supreme Court has recently articulated—
in a case with a similar claim of overpacking black voters to maintain the
continued political dominance of the Republican Party in surrounding districts—
that the BVAP itself cannot be viewed in a vacuum. In Alabama Legislative Black
Caucus v. Alabama, 135 S. Ct. 1257, 1272 (2015), the Supreme Court emphasized
that it is the “ability to elect a preferred candidate of choice,” not “a particular
numerical minority percentage,” that is the pertinent point of reference.
The language of the Voting Rights Act that protects against adopting a
redistricting plan that “has the purpose of or will have the effect of diminishing the
ability of [the minority group] to elect their preferred candidates of choice”—
language incorporated into our tier-one state constitutional standards—“does not
require maintaining the same population percentages.” Id. at 1272-73. Instead, the
Supreme Court has told us, this requirement “is satisfied if minority voters retain
the ability to elect their preferred candidates.” Id. at 1273. Providing an example,
the Supreme Court stated that “it would seem highly unlikely that a redistricting
plan that, while increasing the numerical size of the district, reduced the percentage
of the black population from, say, 70% to 65% would have a significant impact on
the black voters’ ability to elect their preferred candidate.” Id.Accordingly, we reject the Legislature’s argument that an East-West version
of the district would diminish the ability of black voters to elect a candidate of their
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choice. We also reject the dissent’s contention that an East-West district causes
the redistricting map to become significantly less compact. See dissenting op. at
118-20. There is no doubt, as noted by the dissent, that the East-West orientation
is longer, with a correspondingly greater perimeter and area. But length is just one
factor to consider in evaluating compactness.
As this Court stated in Apportionment I, “the object of the compactness
criterion is that a district should not yield ‘bizarre designs.’ ” 83 So. 3d at 634.
And as the Supreme Court of Washington has recognized, in a decision cited
favorably by this Court in Apportionment I, “the phrase ‘as compact as possible’
does not mean ‘as small in size as possible,’ but rather ‘as regular in shape as
possible.’ ” Kilbury v. Franklin Cnty. ex rel. Bd. of Cnty. Comm’rs, 90 P.3d 1071,
1077 (Wash. 2004).
There is no doubt that an East-West version of District 5 is visually less
“unusual” and “bizarre” than the meandering North-South version enacted by the
Legislature. Apportionment I, 83 So. 3d at 634. There is also no doubt that the
numerical compactness scores actually favor the East-West orientation: the
different configurations have essentially the same Reock score (.12 for a proposed
East-West version of the district, and .13 for the Legislature’s North-South, where
1 is the most compact), while an East-West district fares significantly better on the
Convex Hull measure (.71 for the East-West as compared to .42 for the North-
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South, where 1 is again the most compact). Further, an East-West orientation
allows for fewer incorporated city and county splits than the Legislature’s North-
South district—another consideration in determining tier-two compliance.
The reality is that neither the North-South nor the East-West version of the
district is a “model of compactness,” as the trial court stated. Other factors account
for this phenomenon, “including geography and abiding by other constitutional
requirements such as ensuring that the apportionment plan does not deny the equal
opportunity of racial or language minorities to participate in the political process or
diminish their ability to elect representatives of their choice.” Id. at 635. And
while the dissent cherry-picks a favorable statistic to highlight the supposed
decrease in the compactness of District 2 under an East-West version of District 5,
see dissenting op. at 120, the challengers have demonstrated that the decrease in
the compactness of District 2 is an outlier; in fact, as few as four and as many as
seven other districts can be drawn in a more compact manner by drawing District 5
from East to West.
The bottom line is that none of the Legislature’s justifications for its
gerrymandered version of District 5, and none of its complaints about an
alternative East-West configuration, can withstand legal scrutiny. Because the trial
court erred in deferring to the Legislature’s enacted North-South configuration, and
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because the Legislature cannot justify this configuration, District 5 must be
redrawn in an East-West orientation.
B. DISTRICTS 13 & 14
We turn next to Districts 13 and 14, in the Tampa Bay area, which the
challengers contended were drawn in violation of the constitutional requirements.
In addition to relying on the trial court’s finding that the entire map was tainted by
unconstitutional intent, the challengers asserted specifically that the Legislature’s
configuration of Districts 13 and 14 mirrored the configuration known to have
been favored by political operatives, in which District 14 was drawn to cross
Tampa Bay from Hillsborough County, splitting Pinellas County and the City of
St. Petersburg to move a portion of the black population from District 13 into
District 14. In support, the challengers pointed to an e-mail communication from
consultant Frank Terraferma to consultant Rich Heffley and an employee of the
Republican Party of Florida, which described this region as “far from perfect” in a
draft map where District 14 did not cross Tampa Bay.
The enacted configuration of these two districts, which crossed Tampa Bay,
added more Democratic voters to an already safely Democratic District 14, while
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ensuring that District 13 was more favorable to the Republican Party.14 The
challengers thus contended that the Legislature’s configuration of these districts
was directly connected to the trial court’s finding that the enacted map was
unconstitutionally drawn to favor the Republican Party.
The trial court denied the challenge to these districts, reasoning that there
were “no flagrant tier-two deviations from which” to “infer unlawful intent.” The
trial court stated that it “simply” could not “conclude, on partisan effect alone, that
the decision to incorporate portions of South St. Petersburg into District 14 was
done with the intent to benefit the Republican Party or the incumbent member of
Congress.”
We conclude that the trial court erred in rejecting the challenge to these
districts. The trial court erroneously required a “flagrant tier-two deviation” in
order to “infer unlawful intent,” rather than viewing the configuration of these
districts through the lens of the direct and circumstantial evidence of improper
intent presented at trial. Once the trial court found unconstitutional intent, the
Legislature’s enacted configuration was no longer entitled to deference, and it
14. Indeed, although District 13 still leans Democratic under the elections
data relied on by the parties, it actually elected Republican Representative David
Jolly over Democrat Alex Sink in a close election in 2014.
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becomes the Legislature’s burden to justify its decision to draw the districts in a
certain way.
The Legislature’s asserted justification for picking up voters from Pinellas
County in District 14 was to increase minority voting strength in that district,
which the Legislature considered to be preferable—though not required—from a
state constitutional tier-one and federal Voting Rights Act perspective. The trial
court did not, however, make any findings that it was necessary to add black voters
from Pinellas County to District 14 in order to avoid diminishing the ability of
black voters to elect a representative of their choice.15
During trial, the challengers showed that it is possible not to cross Tampa
Bay and still maintain tier-two compliance. In fact, as the charts below indicate,16
following the county boundary significantly increases the numerical compactness
scores of District 13, although it does cause a decrease in the scores of surrounding
districts.
15. District 14 was, prior to 2012, and still is, under the 2012 map,
represented by Kathy Castor, a white Democratic congresswoman.
16. We use graphical depictions of maps that were included in the
challengers’ brief because those maps show the particular areas of concern. The
Legislature did not contest the accuracy of these graphics. In any event, we
include them only as visual aids and have, in our analysis, relied solely on the data
and maps introduced into evidence during the trial.
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Reock Score17 Convex Hull Score18
Enacted Plan Romo Alternative Enacted Plan Romo Alternative
(H000C9047) (Romo A) (H000C9047) (Romo A)
CD12 0.40 0.38 0.81 0.79
CD13 0.46 0.57 0.82 0.91
CD14 0.36 0.28 0.69 0.60
CD15 0.44 0.33 0.75 0.67
CD16 0.42 0.32 0.81 0.80
CD17 0.64 0.39 0.83 0.68
AVG. 0.45 0.38 0.79 0.74
17. The Reock, or circle-dispersion, method of quantifying compactness
“measures the ratio between the area of the district and the area of the smallest
circle that can fit around the district.” Apportionment I, 83 So. 3d at 635. “This
measure ranges from 0 to 1, with a score of 1 representing the highest level of
compactness as to its scale.” Id.
18. The Area/Convex Hull method, which “measures the ratio between the
area of the district and the area of the minimum convex bounding polygon that can
enclose the district,” also ranges from 0 to 1, “with a score of 1 representing the
highest level of compactness.” Apportionment I, 83 So. 3d at 635. “A circle,
square, or any other shape with only convex angles has a score of 1” under this
measure. Id.- 91 -
In rejecting the challenge to these districts, the trial court emphasized the
decrease in the overall compactness scores in the region, ultimately determining
that the Legislature “was not required to make this tradeoff in compactness to
avoid splitting Pinellas County.” However, as this Court has recognized, following
county lines may result in a reduction in compactness scores. See Apportionment
I, 83 So. 3d at 635 (explaining that the compactness of the districts “cannot be
considered in isolation” because other factors influence a district’s compactness,
including the “Legislature’s desire to follow political or geographical boundaries
or to keep municipalities wholly intact”).
The trial court’s decision to defer to the Legislature’s configuration was
contrary to the proper standard that should have applied once the trial court found
that the Legislature’s intent in drawing the congressional redistricting plan was to
benefit the Republican Party. Because the Legislature cannot justify its enacted
configuration of these districts based on race—the only justification that was
offered—the trial court should have invalidated these districts. Accordingly,
Districts 13 and 14 must be redrawn to avoid crossing Tampa Bay.
C. DISTRICTS 26 & 27
The challengers also mounted an individual attack against the validity of
Districts 26 and 27, claiming that the enacted configuration of these two districts
needlessly divided the City of Homestead to Republican gain—turning one
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Republican district and one Democratic district into two Republican-leaning
districts.19 In support, the challengers relied on the general evidence of improper
intent in the plan as a whole, as well as specifically on an e-mail chain between
consultants Heffley, Terraferma, and Reichelderfer that took place after the Senate
released a draft map that did not split Homestead. In this e-mail chain, the
operatives stated that the configuration of these districts was “pretty weak” and
that the House “need[ed] to fix” it. The Senate’s draft version, not splitting
Homestead, is shown on the left below, with the enacted map on the right.
The trial court denied the challenge to these two districts, stating that any
tier-two differences between the enacted map and an alternative map introduced
19. The two districts are actually represented by members of the Republican
Party. The performance data relied on by the parties shows that these two districts
are Republican under the 2008 presidential and 2010 gubernatorial elections but
Democratic under the 2012 presidential election.
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into evidence during trial by the challengers were de minimis since the enacted and
alternative plans split about the same number of counties and cities in the region.
The trial court stated that it would have been “selecting a plan that [it] found
subjectively better rather than determining if [the challengers] have proved the
enacted plan invalid,” if it were to invalidate the enacted configuration of these
districts “based on the objective tier-two evidence” presented. The trial court also
summarily concluded that it did not find the enacted configuration to have been
“based on unlawful partisan intent.”
We conclude that the trial court erred in rejecting the challenge to these
districts. Based on the trial court’s finding of unconstitutional intent to benefit the
Republican Party, the burden should have shifted to the Legislature to justify its
configuration of these districts. Thus, instead of deferring to the Legislature’s
configuration and refraining from “selecting a plan [it] found subjectively better,”
the trial court should have required the Legislature to demonstrate that the decision
to split Homestead between Districts 25 and 26 was not done to benefit the
Republican Party. Because the Legislature’s asserted justification for its
configuration of these districts—to protect minority voting rights—simply cannot
be justified, these districts must be redrawn to avoid splitting Homestead.
D. DISTRICT 25
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Along with the individual challenge to Districts 26 and 27 based on the split
of Homestead, the challengers also argued that nearby District 25 needlessly
divided Hendry County, in violation of the constitutional requirements. The trial
court summarily rejected this challenge, considering it in conjunction with the
challenge to Districts 26 and 27 and concluding simply that the challengers had not
proved invalidity because they had not demonstrated more than “de minimis” tier-
two deficiencies.
This was error. Having found improper intent in the adoption of the
redistricting plan, the trial court should not have deferred to the Legislature’s
configuration but should have, instead, shifted the burden to the Legislature to
justify its decision to divide Hendry County.
The decision to adopt a configuration of District 25 that split Hendry
County—as the Senate’s map had done but the House’s had not—was made in a
non-public meeting at the end of the redistricting process. There is thus no record
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from the time this decision was made to explain why the Legislature chose the
Senate’s configuration of this district over the House’s, even though the Senate’s
configuration rendered the district less numerically compact while splitting a
county boundary and without improving the compactness of the adjacent district,
District 20.
The Legislature’s asserted justification at trial and on appeal in this Court for
splitting Hendry County is chiefly based on concerns related to preclearance
requirements under Section 5 of the Voting Rights Act, since Hendry County was a
“covered” jurisdiction to which Section 5 applied—that is, a county for which the
state had to obtain federal permission prior to enacting any law related to voting in
that county. The Legislature argues that, if it had placed Hendry County entirely
within District 25, the Department of Justice would have denied preclearance.
We reject the Legislature’s justification for its decision to split Hendry
County for at least two reasons. First, the House itself had drawn District 25 with
Hendry County almost entirely included in the district, and the House considered
its map to be constitutionally compliant. The Legislature’s concerns about
preclearance thus appear to be post-hoc rationalizations for the enacted
configuration.
Second, to the extent preclearance is offered as a justification, preclearance
concerns are no longer applicable after the United States Supreme Court’s decision
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in Shelby County v. Holder, 133 S. Ct. 2612 (2013). In that case, the Supreme
Court invalidated the “coverage formula” in Section 4 of the Voting Rights Act,
thereby effectively invalidating the preclearance process established by Section 5
of the Act unless and until Congress creates another formula. Id. at 2631.
Although the Legislature could not have anticipated the Supreme Court’s decision
at the time of the 2012 redistricting, Hendry County was not subject to
preclearance at the time the Legislature enacted the remedial plan it now urges this
Court to approve. In any event, we conclude that the Legislature has not
demonstrated that keeping Hendry County whole would diminish the ability of
black voters to elect a candidate of choice or cause any other tier-one minority
voting protection concerns.
Accordingly, based on its error in the standard of review, the trial court
should not have deferred to the Legislature’s enacted configuration, and that
chosen configuration cannot be justified. District 25 must be redrawn to avoid
splitting Hendry County.
E. DISTRICTS 21 & 22
Finally, the challengers individually attacked the validity of Districts 21 and
22, contending that these districts could have been drawn in a more constitutionally
compliant manner by “stacking” them on top of each other, in a horizontal
configuration, rather than configuring the districts to run vertically, parallel to each
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other along the Atlantic coast. Below, the enacted vertical configuration is shown
on the left, whereas the “stacked” alternative configuration is shown on the right.
Again applying a deferential standard of review, the trial court rejected this
challenge, concluding that the challengers had not “met their burden of showing
unnecessary deviation from tier-two requirements given the various tradeoffs
required to draw compact districts in the region as a whole.” The trial court also
stated that the challengers had not “shown that improper intent led to the adoption
of Districts 21 and 22.”
However, as with the other individual district challenges, the trial court
applied the incorrect standard. Based on its finding of unconstitutional intent, the
trial court should not have deferred to the Legislature’s enacted configuration of
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these districts, but should have instead shifted the burden to the Legislature to
justify its decision to draw the districts in this manner.
We conclude that the Legislature has not done so. At trial, the House’s chief
map drawer, Alex Kelly, testified that the “stacked,” horizontal configuration
represented “an opportunity to improve” the map. According to Kelly, this
configuration would have been more compact and would have broken fewer
political boundaries, and it could have been accomplished without violating any
tier-one minority voting protection requirements. During a non-public meeting at
the end of the redistricting process, Kelly presented this alternative configuration
of the districts, but the Senate ultimately determined, without explanation, to reject
this approach.
Because the Legislature has not justified its enacted configuration of these
districts, we conclude that the districts must be redrawn. We do not, however,
instruct that the Legislature must necessarily redraw the districts in a “stacked,”
horizontal configuration. Indeed, the challengers have conceded that a vertical
configuration could perhaps pass constitutional muster, and their alternative maps
introduced at trial did, in fact, configure these districts in a vertical manner.
Accordingly, we leave it for the Legislature to determine how to redraw these two
districts, with the understanding that tier-two compliance could be improved and,
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given the shift in the burden, that the Legislature must be able to justify its redrawn
configuration of these districts.
VII. REMEDY
We now turn to the remedy. The specifically challenged districts
notwithstanding, the challengers suggest that a broader remedy is required and
urge this Court to invalidate the whole map and either redraw it ourselves or order
the trial court to redraw it, perhaps with the assistance of an appointed expert. The
Legislature counters that this Court lacks the authority to do so, because a
congressional redistricting plan may be enacted only by a state legislature pursuant
to article I, section 4, clause 1, of the United States Constitution, which vests
exclusive authority to regulate the time, place, and manner of congressional
elections in state legislatures, subject only to oversight by Congress. Although we
reject the Legislature’s argument that this Court has no authority to adopt a plan, if
necessary, we decline the invitation to do so at this time.
The Colorado Supreme Court has explained that state courts are empowered
to enact constitutional redistricting plans for the United States Congress “when the
legislature fails to do so.” People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1232
(Colo. 2003). The Colorado high court has stated that state courts “have the
authority to evaluate the constitutionality of redistricting laws and to enact their
own redistricting plans when a state legislature fails to replace unconstitutional
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districts with valid ones.” Id. “In such a case,” the Colorado Supreme Court has
reasoned, “a court cannot be characterized as ‘usurping’ the legislature’s authority;
rather, the court order fulfills the state’s obligation to provide constitutional
districts for congressional elections in the absence of legislative action.” Id.We agree, but we have determined that in this case the Legislature has not
failed to conform to a ruling from this Court requiring it to adopt constitutionally
compliant congressional districts, and, in fact, swiftly enacted a remedial
redistricting plan in response to the trial court’s judgment. We thus conclude that
the appropriate remedy at this juncture is to require the Legislature to redraw the
map, based on the directions set forth by this Court.
The Legislature need not, in addition, redraw the entire map. Although we
have struggled with this issue, particularly in light of the admittedly
gerrymandered 2002 map that was used as a baseline for the current districts, we
have ultimately determined that requiring the entire map to be redrawn is not the
remedy commensurate with the constitutional violations found in this case.
Further, we note that the challengers did not allege, as a separate claim, that the
Legislature’s reliance on the 2002 map was a basis for invalidating the whole map,
nor did they identify a neutral map that showed how all of the districts could be
redrawn in a manner more objectively compliant with the constitutional
requirements.
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We have, instead, instructed the Legislature on which districts must be
redrawn—Districts 5, 13, 14, 21, 22, 25, 26, and 27—and provided precise
guidelines as to the deficiencies in these districts. Although we decline to require
the whole plan to be redrawn, it follows that all adjacent districts affected by the
reconfiguration of the specific districts being redrawn must also be redrawn. We
have, in addition, been asked by the challengers to provide specific directives that
the Legislature must follow in redrawing the districts.
It is true, as the Legislature argues, that the judiciary is generally “without
authority to review the internal workings” of the Legislature. Fla. Senate v. Fla.
Pub. Emps. Council 79, AFSCME, 784 So. 2d 404, 409 (Fla. 2001). But it is also
true, as this Court has recognized in another of its recent redistricting opinions, that
Florida has a “strong public policy, as codified in our state constitution, favoring
transparency and public access to the legislative process.” Apportionment IV, 132
So. 3d at 144. The Legislature’s failure to preserve redistricting records and its
decision to make important changes to the map during non-public meetings are
factors that caused the trial court, and cause this Court, great concern as to whether
the Legislature has complied with the constitutional provision to outlaw partisan
political gerrymandering.
This is particularly so given that the Legislature itself proclaimed that it
would conduct the most open and transparent redistricting process in the history of
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the state, and then made important decisions, affecting numerous districts in the
enacted map, outside the purview of public scrutiny. As this Court has previously
stated, “[i]f the Legislature alone is responsible for determining what aspects of the
reapportionment process are shielded from discovery, the purpose behind the
voters’ enactment of the article III, section 20(a), standards will be undermined.”
Id. at 149.
While the congressional redistricting plan is somewhat unique in that it
required compromise between the two legislative chambers—unlike the state
House and Senate maps that were drawn solely within each respective chamber—a
redistricting plan enacted by the Legislature is also unique as compared to other
types of legislation, in that it involves a specific “constitutional restraint on the
Legislature’s actions.” Id. at 147. The dissent’s claim that there is nothing
“unique” about the challenge in this case, dissenting op. at 127, is unavailing—and
belied by its own admonitions about how this Court’s alleged errors are
particularly grave in the context of redistricting.
In typical cases challenging the constitutionality of a legislative enactment,
the relevant inquiry is whether the enacted legislation violates some individual
right or contravenes some prohibition on the type of law the Legislature is
empowered to enact. The traditional constitutional analysis of enacted legislation
does not involve, as it does here, “a specific constitutional direction to the
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Legislature, as to what it can and cannot do with respect to drafting legislative
reapportionment plans.” Apportionment IV, 132 So. 3d at 147. Simply put, this
case does not pit this Court versus the Legislature, but instead implicates this
Court’s responsibility to vindicate “the essential right of our citizens to have a fair
opportunity to select those who will represent them.” Id. at 148.
We therefore set forth the following guidelines and parameters, which we
urge the Legislature to consider in adopting a redrawn map that is devoid of
partisan intent. First, in order to avoid the problems apparent in this case as a
result of many critical decisions on where to draw the lines having been made
outside of public view, we encourage the Legislature to conduct all meetings in
which it makes decisions on the new map in public and to record any non-public
meetings for preservation. As we stated in Apportionment IV, “one of our state
constitutional values is a strong and well-established public policy of transparency
and public access to the legislative process.” Id. at 146. This transparency is
critical in light of both the purpose of the Fair Districts Amendment to outlaw
partisan manipulation in the redistricting process and the trial court’s finding here
that “an entirely different, separate process” to favor Republicans and incumbents
was undertaken contrary to the Legislature’s assertedly transparent redistricting
effort. Id. at 149.
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Second, the Legislature should provide a mechanism for the challengers and
others to submit alternative maps and any testimony regarding those maps for
consideration and should allow debate on the merits of the alternative maps. The
Legislature should also offer an opportunity for citizens to review and offer
feedback regarding any proposed legislative map before the map is finalized.
Third, the Legislature should preserve all e-mails and documents related to
the redrawing of the map. In order to avoid additional, protracted discovery and
litigation, the Legislature should also provide a copy of those documents to the
challengers upon proper request.
Finally, we encourage the Legislature to publicly document the justifications
for its chosen configurations. That will assist this Court in fulfilling its own
solemn obligation to ensure compliance with the Florida Constitution in this
unique context, where the trial court found the Legislature to have violated the
constitutional standards during the 2012 redistricting process.
VIII. THE VOTERS SOUGHT FAIR DISTRICTS
Before we conclude, we observe that this is neither the first, nor likely the
last, time this Court must confront a challenge to a redistricting plan enacted by the
Legislature. In each case, we have endeavored to give meaning to the intent of the
framers and voters who passed the Fair Districts Amendment to outlaw partisan
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political gerrymandering—no easy task given how entrenched this practice has
been for years in the politics of crafting Florida’s district boundaries.
A reader of Justice Canady’s dissent in isolation could be forgiven for
believing that this Court’s decision here amounts to a creative maneuver designed
to overstep its proper bounds, done in order to usurp the Legislature’s role in the
redistricting process. The dissent’s attacks on this Court’s analysis are
extravagant, even when measured against prior dissenting opinions in our recent
redistricting cases that have accused this Court of devising “a radical alteration in
the operation of the separation of powers.” Apportionment IV, 132 So. 3d at 160(Canady, J., dissenting). The barrage of epithets employed by the dissent includes
the following colorful array: “fallacious”; “fabricated”; “extreme distortion”;
“revolutionary deformation”; “teeming with judicial overreaching”; “creatively
cobbled”; “aggressive invasion”; “aberrant decision”; and “unprecedented
incursions.”20 Dissenting op. at 110, 111, 112, 117, 127.
Of course, we categorically reject the dissent’s many derisive criticisms.
And we point out that the dissent’s overblown claims that this Court has violated
the separation of powers, and has done away with the presumption of
20. Perhaps we should take solace in not being accused of “jiggery-pokery.”
See King v. Burwell, No. 14-114, 2015 WL 2473448, at *19 (U.S. June 25, 2015)
(Scalia, J., dissenting).
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constitutionality applied to legislative acts in the redistricting context, are in fact
nothing new. In Apportionment I, the dissent repeatedly chastised this Court for
“cast[ing] aside the presumption of constitutionality.” Apportionment I, 83 So. 3d
at 696 (Canady, J., concurring in part and dissenting in part). In Apportionment
III, the dissent charged that this Court had “la[id] the groundwork for the
unrestrained judicial intrusion” into the redistricting process. Apportionment III,
118 So. 3d at 218 (Canady, J., dissenting) (internal quotation omitted). And in
Apportionment IV, the dissent hyperbolically accused this Court of “grievously
violat[ing] the constitutional separation of powers.” Apportionment IV, 132 So. 3d
at 156 (Canady, J., dissenting).
The dissent’s position has certainly been consistent. But so too has this
Court’s. We pointed out in Apportionment I that the Fair Districts Amendment
“dramatically alter[ed] the landscape with respect to redistricting,” increasing the
scope of judicial review and commensurately requiring “more expanded judicial
analysis of legislative compliance.” Apportionment I, 83 So. 3d at 607. We
emphasized in Apportionment III that “the framers and voters clearly desired more
judicial scrutiny” of the Legislature’s decisions in drawing the state’s
congressional and legislative districts. Apportionment III, 118 So. 3d at 205. And
we reiterated in Apportionment IV that there can hardly be a more compelling
interest than the public interest in ensuring that the Legislature does not engage in
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unconstitutional partisan political gerrymandering. Apportionment IV, 132 So. 3d
at 147-48.
Far from upending the law, then, our legal analysis today adheres to our
recent redistricting precedents. The dissent, to the contrary, continues its refusal to
acknowledge the import of the Fair Districts Amendment. As Chief Justice
Labarga eloquently stated in his concurrence in Apportionment IV, this Court has
an “important duty” to “honor and effectuate the intent of the voters in passing
Florida’s groundbreaking constitutional amendment prohibiting partisan or
discriminatory intent in drawing the congressional apportionment plan.” 132 So.
3d at 154-55 (Labarga, J., concurring). This is a responsibility we undertake with
the utmost of seriousness—not because we seek to dictate a particular result, but
because the people of Florida have, through their constitution, entrusted that
responsibility to the judiciary.
IX. CONCLUSION
In conclusion, we affirm the trial court’s factual findings and ultimate
determination that the redistricting process and resulting map were “taint[ed]” by
unconstitutional intent to favor the Republican Party and incumbents. However,
we reverse the trial court’s order approving the remedial redistricting plan because
we conclude that, as a result of legal errors, the trial court failed to give the proper
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effect to its finding of unconstitutional intent, which mandated a more meaningful
remedy commensurate with the constitutional violations it found.
Through this opinion, we have provided clear guidance as to the specific
deficiencies in the districts that the Legislature must redraw—Districts 5, 13, 14,
21, 22, 25, 26, 27, and all other districts affected thereby—and we have urged the
Legislature in light of the trial court’s findings in this case to consider making all
decisions on the redrawn map in public view. We have every confidence that the
Legislature, given this guidance, will conduct itself in a manner that will fulfill the
purpose of the Fair Districts Amendment, including the need for transparency and
neutrality in drawing the state’s congressional districts.
As to the remedy, we are aware that this litigation has now spanned more
than three years and the qualifying period for the next congressional election of
2016 is not far away. We therefore urge that the redrawing of the map be
expedited. We have chosen to relinquish this case to the trial court for a limited
period of 100 days from the date of this opinion, therefore retaining jurisdiction,
and we anticipate that the trial court can perform an oversight role should any
disputes arise.21 To avoid any further delays, we have also limited the time for
21. The specific parameters of the relinquishment and transmission of the
record are set forth in a separate order issued by this Court simultaneously with
this opinion. Although the dissent criticizes our requirement in that order of dual
filings in the trial court and this Court during the relinquishment proceedings, see
dissenting op. at 124-25, time is of the essence in bringing finality to the
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filing a motion for rehearing or clarification to five days from the date of this
opinion and have limited the time for filing a response to such a motion to three
days from the date the motion is filed.
It is so ordered.
LABARGA, C.J., and QUINCE and PERRY, JJ., concur.
LEWIS, J., concurs in result.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
On the Court’s own motion, any motion for rehearing or clarification shall be
filed no later than 3 p.m. on July 14, 2015. See Fla. R. App. P. 9.330(a). Any
response to a motion for rehearing or clarification must be filed no later than
3 p.m. on July 17, 2015. No reply to the response shall be permitted.
CANADY, J., dissenting.
The circuit court properly ruled that the appellants failed to establish any
basis for requiring the Legislature to further revise Florida’s congressional district
map. The majority’s decision to reverse the circuit court and to invalidate
numerous districts in the remedial congressional district plan adopted by the
Legislature involves an extreme distortion of the appellate process deployed to
effect a serious violation of the separation of powers. Accordingly, I dissent.
I.
congressional redistricting plan. Requiring dual filings during a relinquishment or
other proceeding over which this Court retains jurisdiction is not unusual, and the
dual filings allow this Court to ensure it timely has the complete record so that it
can act expeditiously.
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The linchpin of the majority’s decision is the assertion that in the final
judgment the trial court “concluded that the [congressional redistricting] plan was
drawn with improper partisan intent” and that the improper intent affected the
entire plan. Majority op. at 39. According to the majority, “the trial court failed to
give any actual effect to its finding in this case that the ‘whole plan’ challenge had
been proven through the direct and circumstantial evidence of improper partisan
intent presented at trial.” Majority op. at 63. In fact, however, the final
judgment—a copy of which is appended—contains no finding whatsoever that the
Legislature acted with improper intent regarding the entire congressional plan or
that the “whole plan” challenge had been proven. The majority fails to identify
any such finding in the final judgment. Instead, the majority puts forth a
misconstruction of the trial court’s ruling based on fragments from the final
judgment taken out of context and creatively cobbled together. The trial court
refused to draw an inference from the evidence that an improper partisan intent
affected the redistricting plan in its entirety. But the majority effectively steps into
the role of the trier of fact, independently reweighs the evidence, finds that the
evidence supports the inference that the whole plan was affected by an improper
partisan intent, imputes that broad finding of unconstitutional intent to the trial
court, and then faults the trial court for not acting in accord with that fabricated
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finding. The upshot is a virtually revolutionary deformation of the appellate
process.
The materials from which the majority fashions its misconstruction of the
trial court’s ruling are found largely in the trial court’s findings regarding a
“conspiracy” by certain Republican political consultants “to influence and
manipulate the Legislature into a violation of its constitutional duty.” Final
Judgment at 10. But those materials are misshaped by the majority. When the trial
court’s ruling is considered in its full context, three essential points are clear in the
trial court’s findings regarding the consultants’ conspiracy.
First, the consultants “managed to taint the redistricting process and the
resulting map with improper partisan intent” by finding “ways to infiltrate and
influence the Legislature, to obtain the necessary cooperation and collaboration to
ensure that their plan was realized, at least in part.” Final Judgment at 22
(emphasis added). The trial court unquestionably determined that efforts of the
consultants to cause partisan action by the Legislature had some success.
Second, the consultants’ conspiracy was not successful in affecting the entire
map drawing process. The “taint” of “improper partisan intent” attributable to the
activities of the Republican consultants was limited in scope and effect. This is
evident from the trial court’s crucial finding that “the staff members who did the
bulk of the actual map drawing for the Legislature . . . were not a part of the
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conspiracy, nor directly aware of it, and that significant efforts were made by them
and their bosses to insulate them from direct partisan influence.” Final Judgment
at 22. The trial court specifically found that the committee staff “were insulated
from the political consultants,” Final Judgment at 37, and that the “motivation [of
the staff] in drawing draft maps for consideration of the Legislature was to produce
a final map which would comply with all the requirements of the Fair Districts
Amendments, as their superiors had directed them.” Final Judgment at 22. This
finding is of critical importance because of the pivotal role the committee staff
indisputably had in drawing the districts the trial court refused to invalidate.
Third, the trial court found that an improper partisan intent did affect certain
districts in the redistricting plan—namely, Districts 5 and 10—where there was
evidence that the configuration of the districts was influenced through contact
between the Republican consultants and legislative leadership or leadership staff.
Thus, based on its consideration of the evidence, the trial court decided that
“collaboration and cooperation” between the partisan consultants and decision
makers in the Legislature regarding particular districts was the predicate for
requiring the redrawing of a district based on a finding of unconstitutional intent.
The majority simply ignores the second of these points and fabricates a
broad finding of unconstitutional intent. The majority goes on to fault the trial
court for failing “to give any independent legal significance to its finding of
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unconstitutional intent when examining the challenges to individual districts,”
majority op. at 56, and to assert that the trial court essentially concluded that some
improper intent is acceptable. See majority op. at 58. Neither criticism of the trial
court’s order can withstand analysis. The trial court cannot be faulted for failing to
give independent significance to a factual finding it did not make. The trial court
expressly considered the question of unconstitutional intent in its analysis of the
challenged individual districts. Indeed, the trial court was intently focused on the
factual question of whether improper intent affected the drawing of particular
districts by the Legislature. With respect to two districts, the trial court found that
the districts were drawn with unconstitutional intent in the map initially adopted.
With respect to the other districts, the trial court found that the appellants had
failed to establish that the districts were drawn with unconstitutional intent.
At no point does the trial court indicate that it would permit some level of
unconstitutional intent in the drawing of any district. The assertion to the contrary
is unwarranted. As the final judgment makes plain, the trial court thoughtfully
considered the evidence in determining the extent to which the “secretive shadow
process of map drawing by the political consultants” was in fact successful in
causing the Legislature to act with unconstitutional intent in the drawing of
particular districts. Final Judgment at 11-12. In rejecting the “whole plan”
challenge, the trial court recognized the unremarkable proposition that districts that
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were not drawn with an unconstitutional intent and that did not otherwise violate
the constitutional standards should not be invalidated. The trial court’s ruling on
this point is in accord with the basic principle “that the scope of the constitutional
violation measures the scope of the remedy.” Columbus Bd. of Educ. v. Penick,
443 U.S. 449, 455 (1979).
Although the trial court made no finding of a “general intent” by the
Legislature to favor a political party or incumbents, the court reasoned that “even
if” such a general intent could be proven it would be insufficient to invalidate a
particular district unless it was shown that the improper intent affected the drawing
of that district. Attempting to match the scope of the remedy to the scope of the
violation, the trial court correctly focused on the “effect of . . . noncompliance”
with the Constitution in determining whether districts should be invalidated. Final
Judgment at 9.
The majority asserts that “the trial court considered a general improper intent
to lack any independent legal significance unless it was accompanied by another
constitutional violation.” Majority op. at 58. But the trial court’s analysis makes
clear that it was focused on whether any general improper intent actually affected
the drawing of particular districts—not on whether particular districts were
affected by the violation of other standards.
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The majority’s reading of the text of the final judgment on this point imports
incoherence into the final judgment. It puts the reference to “general intent” in
conflict with the trial court’s reiterated conclusion that the districts now invalidated
by the majority were not drawn with improper intent. But the text of the final
judgment—like any other text—should be read harmoniously. The rule that “the
provisions of a text should be interpreted in a way that renders them compatible,
not contradictory” is a compelling rule of construction predicated on the reality
that “it is invariably true that intelligent drafters do not contradict themselves.”
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 180 (2012). There is no basis for concluding here that the trial court
engaged in self-contradiction.
II.
The invalidation of Districts 5, 13, 14, 21, 22, 25, 26, and 27 cannot be
reconciled with crucial factual determinations made by the trial court. Indeed, the
invalidation of these districts can only be accomplished by setting aside the trial
court’s rulings regarding not only improper intent but also compactness,
retrogression and other constitutional standards. The invalidation of these districts
flies in the face of the pivotal role of the committee staff in drawing them and the
trial court’s express finding that the committee staff were insulated from partisan
influence. The trial court’s rulings regarding improper intent and retrogression, in
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particular, indisputably turn on the question of fact that can only properly be
determined by the trier of fact.
In an opinion teeming with judicial overreaching, the invalidation of
Remedial District 5 has pride of place. The basis for the majority’s decision to
require that this district be reoriented from its north-south configuration to an east-
west configuration ultimately boils down to this: the north-south configuration
must be rejected because that is the configuration chosen by the Legislature and the
Legislature’s choice is presumed to be unconstitutional. If the Legislature made a
choice, we must begin by assuming the choice violated the constitution. This is so
even though the configuration chosen by the Legislature was based on a map
drawn by committee staff, who were insulated from partisan influence in selecting
that configuration. The majority also suggests that the north-south configuration is
somehow tainted because “the long-time incumbent of the district,
Congresswoman Corrine Brown . . . previously joined the leading Republicans in
actively opposing the Fair Districts Amendment and redistricting reform.”
Majority op. at 80.
Based on this supposed taint and the presumption of unconstitutionality, the
majority treats as irrelevant the trial court’s ruling that “the Plaintiffs have not
offered convincing evidence that an East-West configuration is necessary in order
to comply with tier-one and tier-two requirements of Article III, section 20.”
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Order Approving Remedial Redist. Plan at 3. Under the majority’s application of
the presumption of unconstitutionality, an alternative suggested by the challengers
is virtually guaranteed to trump any choice made by the Legislature. This vividly
illustrates just how far the majority has gone in repudiating the principle that a
redistricting plan should not be declared unconstitutional “unless it clearly appears
beyond all reasonable doubt that, under any rational view that may be taken of the
[plan], it is in positive conflict with some identified or designated provision of
constitutional law.” In re Apportionment Law, 263 So. 2d 797, 805-06 (Fla. 1972)
(quoting City of Jacksonville v. Bowden, 64 So. 769, 772 (Fla. 1914)).
The majority fails to consider critical aspects of the alternative suggested by
the challengers for Remedial District 5. Most strikingly, the majority ignores the
reality that the mandated east-west configuration will result in a district that is
significantly less compact than Remedial District 5. In addition, no attention is
given to the fact that the creation of the East-West District will cause adjoining
District 2 to become significantly less compact.
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Remedial Plan Map
Romo Map A
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As the Legislature points out, the East-West District’s length will be 43%
greater than the length of Remedial District 5—206 miles rather than 144 miles.
The perimeter of the East-West District is 22% larger than Remedial District 5’s
perimeter, and the area of the East-West District is 93% greater than the area of
Remedial District 5. By any reasonable understanding of compactness, this is a
dramatic movement toward a less compact district.
RD 5 E-W D Change
Length (miles) 144 206 +43%
Perimeter (miles) 583 711 +22%
Area (square miles) 2031 3,911 +93%
The redrawing of District 2 necessitated by the majority’s decision that
Remedial District 5 must be replaced by an East-West District will also result in a
dramatic movement toward a less compact district. The length of District 2 will be
increased by 39% from 167 miles to 232 miles. The district’s perimeter will
increase by 75% and its area by 30%.
D2 New D2 Change
Length (miles) 167 232 +39%
Perimeter (miles) 550 961 +75%
Area (square miles) 10,107 13,107 +30%
The majority’s imposition of the East-West District is also predicated on a
disregard of the evidence of the potential for retrogression in the East-West
District, and the failure to establish any objective standard for prohibited
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retrogression. On the issue of retrogression, the majority dismisses the expert
testimony presented by the Legislature and acts on the basis of a very simple and
totally subjective rule: we know retrogression when we see it. The majority’s
approach regarding the other challenged districts where retrogression was at issue
parallels its approach regarding Remedial District 5.
With the invalidation of Remedial District 5 and other challenged districts,
the ironic result is that districts drawn by professional committee staff, who were
insulated from partisan influence in the drawing of the districts, are effectively
displaced by districts drawn—as evidenced by deposition testimony—under the
auspices of the National Democratic Redistricting Trust in cooperation with the
Democratic Congressional Campaign Committee. There is something dreadfully
wrong with this picture. As the Legislature argues: “To discard the work product
of the Florida Legislature, which the trial court carefully considered and upheld,
and substitute the partisan handiwork of the DCCC and the Democratic Trust,
would be an indelible stain.” Legislative Parties’ Answer Brief at 91.
III.
Despite casting its disagreement with the trial court in terms of legal errors,
the majority’s real disagreement with the trial court is not about questions of law.
It is about questions of fact. The majority thus reverses the trial court because the
trial court failed to invalidate particular districts for being drawn with an
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unconstitutional intent when the trial court made the factual determination that
those districts were not drawn with an unconstitutional intent. The majority’s real
problem with the trial court’s ruling is that the trial court was unwilling to draw
broad factual inferences concerning intent that the majority concludes should have
been drawn.
Intent unquestionably is a question of fact. As we explained in Jersey Palm-
Gross, Inc. v. Paper, 658 So. 2d 531 (Fla. 1995), “the ultimate arbiter on the issue
of intent is the trial court because ‘the question of intent is one of fact.’ ” Id. at 534(quoting Rebman v. Flagship First Nat’l Bank, 472 So. 2d 1360, 1364 (Fla. 2d
DCA 1985)).
It is axiomatic that determining whether a district should be invalidated
based on an unconstitutional intent claim turns on the factual question of whether
that district was drawn with an unconstitutional intent—a question indisputably
within the province of the trier of fact. By imposing its own judgment about the
factual inferences to be drawn from the evidence at trial, the majority has
transgressed the boundaries of proper appellate review and invaded the province of
the trier of fact. Such overreaching by an appellate court would be a grave matter
in any context, but it is doubly grave in the context of redistricting litigation, where
a coordinate branch of government is a party and the constitutional authority of
that branch is at issue. In a context such as this, the court has a special duty to
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scrupulously observe the limitations inherent in its function as an appellate court.
Unfortunately, the majority has heedlessly cast those limitations aside.
The majority effectively holds that a finding of any unconstitutional intent in
the drawing of congressional districts causes a presumption to arise that all the
districts in the plan were drawn with an unconstitutional intent. Based on that
presumption, the majority places the burden of proof on the Legislature to establish
that particular districts were not drawn with an unconstitutional intent. The
majority thus creates a general presumption of unconstitutionality based on a
specific, narrow constitutional violation. This broad presumption of
unconstitutionality untethers the remedy for violating the Constitution from proven
specific violations requiring specific remedies. It transgresses the self-evident
principle that “the scope of the constitutional violation measures the scope of the
remedy.” Penick, 443 U.S. at 455. This, needless to say, shatters the shell of the
presumption of constitutionality that was left by this court’s recent redistricting
decisions. But the majority reaches even further.
IV.
Having invaded the province of the trier of fact to find the factual basis for
triggering the newly created presumption of unconstitutionality, the majority
continues its march to dominate the redistricting process and finishes the job—at
least for now—by making the factual determinations that the Legislature did not
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prove a lack of improper intent in the drawing of the specifically challenged
districts. Marching forward, the majority eviscerates numerous factual
determinations made by the trial court in its evaluation of the individual district
challenges.
Under the well-established framework for appellate review, if an appellate
court determines that the trier of fact has placed the burden of proof on the wrong
party, the case should be remanded to the trier of fact to reevaluate the evidence in
light of the correct legal rule regarding the burden of proof. The weighing of the
evidence under the applicable burden of proof is the function of the trier of fact.
That function should not be usurped by an appellate court. The Supreme Court has
recognized as “elementary” that “ ‘fact finding is the basic responsibility of [trial]
courts, rather than appellate courts’ ” and “where findings are infirm because of an
erroneous view of the law, a remand is the proper course unless the record permits
only one resolution of the factual issue.” Pullman-Standard v. Swint, 456 U.S.
273, 291-92 (1982) (quoting DeMarco v. United States, 415 U.S. 449, 450 n.
(1974)). Proceedings by an appellate court contrary to these elementary principles
are “incredible.” Id. at 293.
The majority caps off its abandonment of the restraints of the appellate
process by retaining jurisdiction after deciding this case, dictating the details of the
proceedings in the trial court, and presuming to require that all filings submitted in
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the trial court shall “simultaneously be submitted to this court.” This retention of
jurisdiction and exercise of control of the proceedings in the trial court further
vividly demonstrates the majority’s aggressive determination to exercise full
dominion over the redistricting process. Unlike our review of the legislative
redistricting plan—over which we have original review jurisdiction under article
III, section 16—our review of this case involving congressional redistricting is
based on our jurisdiction to review trial court judgments that are certified by a
district court under article V, section 3(b)(5). Once we have decided this case,
there is no reason—other than the majority’s determination to guarantee that it has
the last word—that the case should not proceed like any other case that is reversed
and remanded to a trial court after we have exercised our jurisdiction over a trial
court judgment certified to us by a district court. If a party believes that an error
occurs in the proceedings on remand, that party may file an appeal in the district
court. The district court can then either decide the case or certify it to this court for
decision. That is the way such cases proceed in the ordinary course. But here the
ordinary course of judicial proceeding is once again cast aside by the majority
without a shred of justification.
V.
The damage done by this decision to the structure of the appellate process is
exceeded only by the damage done to the constitutional separation of powers.
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Injury to the separation of powers in this case takes two forms. First, the majority
effectively supplants the substantive constitutional power of the Legislature to
draw congressional districts. As I have explained, the majority does this by
reviewing the redistricting plan in a way that is inconsistent in multiple ways with
the proper exercise of judicial power. Second, the majority invades the internal
workings of the Legislature by effectively dictating how the Legislature must
conduct its business in connection with the adoption of the revised congressional
redistricting plan that the majority has mandated. The majority thus sets forth
certain “guidelines and parameters” concerning the process for adopting a revised
congressional district map. None of these “guidelines and parameters” have any
basis in law. All of the subjects addressed by the “guidelines and parameters” are
covered by existing law, but the majority imposes requirements that indisputably
go beyond the clear requirements of the governing law.
The majority’s “guidelines and parameters” for the conduct of legislative
business run headlong into our prior recognition of the danger “that the control or
influence by one branch of another branch’s internal operating procedures could
interfere with the independence of the second branch and possibly place the
enforcing branch in a superior position.” Locke v. Hawkes, 595 So. 2d 32, 36 (Fla.
1992). Short shrift is given to the rule that “[i]t is a legislative prerogative to
make, interpret and enforce its own procedural rules and the judiciary cannot
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compel the legislature to exercise a purely legislative prerogative.” Moffitt v.
Willis, 459 So. 2d 1018, 1022 (Fla. 1984). In all the annals of constitutional
government, this Court’s aggressive invasion of the internal workings of the
legislative branch is without precedent. The only case authority that can be cited to
support the depredations here visited on the independence of the legislative branch
is this Court’s recent aberrant decision requiring members of the Legislature to
submit to interrogations concerning their legislative activities. But the invasion of
the legislative sphere made by the Court’s prior ruling is outstripped by today’s
ruling.
In attempting to justify these unprecedented incursions into the
constitutional sphere of the Legislature, the majority offers the singularly
unconvincing reason that “a redistricting plan enacted by the Legislature is . . .
unique as compared to other types of legislation, in that it involves a specific
‘constitutional restraint on the Legislature’s actions.’ ” Majority op. at 103. This
is fallacious. In every single case challenging the constitutionality of a law the
question at issue is whether the law transgresses a constitutional restraint on the
Legislature. There is nothing “unique” about the challenge brought in this case
that justifies transgressing the separation of powers. It is “unique” only because
the majority has chosen to treat it as “unique” to justify a “unique” exercise of
judicial power.
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All of the “parameters and guidelines” constitute unwarranted interference
with the operation of the Legislature within its own constitutional sphere. The
most egregious of the “safeguards” set forth by the majority is the admonition that
“the Legislature should provide a mechanism for the challengers and others to
submit alternative maps and any testimony regarding those maps for consideration
and should allow debate on the merits of the alternative maps” and should “offer
an opportunity for citizens to review and offer feedback regarding any proposed
legislative map before the map is finalized.” Majority op. at 105. This tramples on
the institutional independence and integrity of the Legislature by inserting the
challengers and others outside the Legislature into the very heart of the legislative
process.
The challengers and others interested in redistricting have the benefit, of
course, of the constitutional right granted to the people of Florida “to petition for
redress of grievances.” Art. I, § 5, Fla. Const. They thus have the right to
communicate with members of the Legislature to make their views known and to
criticize legislative proposals. But the majority opinion clearly contemplates a
“mechanism” that goes far beyond permitting the exercise of this constitutional
right. The Legislature debates and gives formal consideration only to proposals
that are submitted—in the form of bills or resolutions and amendments thereto—by
members of the Legislature. The filing of bills, resolutions and amendments in the
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Legislature is the exclusive constitutional prerogative of elected members of the
Legislature. And no person who is not a member of the Legislature has standing in
the Legislature to participate in legislative debate, submit proposals that must be
debated or to formally “review” proposals under consideration by the Legislature
before they are adopted. In ignoring these elemental features of the legislative
process, the majority betrays either a lack of knowledge or a lack of regard for the
integrity of the core function of a coordinate branch of government.
VI.
This decision causes serious damage to our constitutional structure. The
proper functioning of the judicial process is deformed and the separation of powers
is breached in an unprecedented manner. Since 2012, this Court’s decisions
concerning the redistricting process have been characterized by a repeated
rewriting of the rules. The foundation for all that followed was the effective
abrogation of our precedents that clothed a redistricting plan with a presumption of
constitutionality. The Fair Districts Amendments—which said not a word about
the alteration of the exercise of judicial power—could not bear the weight of that
jettisoning of the presumption of constitutionality. And the Fair Districts
Amendments certainly cannot bear the weight of today’s decision, which abandons
the well-established boundary between the trier of fact and a reviewing appellate
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court and transgresses the independence of the core function of the legislative
branch in conducting the legislative process. I dissent.
POLSTON, J., concurs.
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Certified Judgments of Trial Courts in and for Leon County – Terry Powell Lewis,
Judge - Case Nos. 372012CA000412XXXXXX and 372012CA000490XXXXXX
- An Appeal from the District Court of Appeal, First District, Case No. 1D14-3953
John Stewart Mills, Andrew David Manko, and Courtney Rebecca Brewer of The
Mills Firm, P.A., Tallahassee, Florida; David B. King, Thomas Alan Zehnder,
Frederick Stanton Wermuth, and Vincent Falcone, III of King, Blackwell, Zehnder
& Wermuth, P.A., Orlando, Florida; Adam Michael Schachter and Gerald Edward
Greenberg of Gelber Schachter & Greenberg, P.A., Miami, Florida; Mark Herron
and Robert J. Telfer, III of Messer Caparello, P.A., Tallahassee, Florida; and John
M. Devaney and Marc Erik Elias of Perkins Coie LLP, Washington, District of
Columbia;
for Appellants/Cross-Appellees
J. Andrew Atkinson, General Counsel, Florida Department of State, Tallahassee,
Florida; Raoul G. Cantero, III, Jason Nelson Zakia, and Jesse Luke Green of White
& Case LLP, Miami, Florida; George T. Levesque, General Counsel, The Florida
Senate, Tallahassee, Florida; Allison J. Riggs and George Edward Eppsteiner,
Southern Coalition for Social Justice, Durham, North Carolina; Nancy Gbana
Abudu, American Civil Liberties Union of Florida Foundation, Miami, Florida;
Matthew Joseph Carson, General Counsel, The Florida House of Representatives,
Tallahassee, Florida; and Charles Talley Wells of Gray Robinson P.A., Orlando,
Florida, and Jason Lawrence Unger, Andre Velosy Bardos, and George N. Meros,
Jr. of Gray Robinson, P.A., Tallahassee, Florida,
for Appellees/Cross-Appellants
Martha Angela Pardo, Associate Counsel, LatinoJustice PRLDEF, Orlando,
Florida,
for Amici Curiae LatinoJustice PRLDEF, Florida New Majority, and Mi
Familia Vota
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