Redistricting and the Citizen Legislator

Submitted by Mike Appleton, Guest Blogger

The decennial exercise in legislative self-dealing known as redistricting has been frequently assailed as corrupt.  Efforts to eliminate the incentive to treat redistricting as an incumbency protection racket by placing term limits on House and Senate members have run afoul of the Constitution.  But Floridians may have found a partial solution.  As Republicans were strengthening their super-majority status in the state legislature this past November, eagerly anticipating the opportunity to redistrict the remaining Democrats to somewhere in the middle of the Gulf of Mexico, voters were simultaneously adopting by substantial margins two amendments to the Florida constitution intended to eliminate gerrymandering.  And a federal judge has now thrown out the Florida legislature’s constitutional challenge to one of those amendments.

The amendment at issue now appears as Article III, Section 20 of the Florida constitution. It requires that congressional district boundaries not be drawn with an intent to favor or disfavor a particular party or incumbent, or to deny or abridge the equal opportunity of racial or language minorities to participate in the political process. It further requires that existing political and geographic boundaries be utilized when feasible. (The second amendment imposes identical requirements on the creation of state legislative districts.)

Almost as soon as the election results were certified, suit was filed by several plaintiffs, including the Florida House of Representatives and Democratic Rep. Corrine Brown, claiming that the amendment violates Article I, Section 4 of the U.S Constitution (the “Elections Clause”). That clause reads in part: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

The substance of the challenge in Diaz-Balart v. Browning (1:10-cv-23968-UU, S.D.Fla.)is that the amendment, having been adopted by citizen initiative, improperly impinges on authority which the Elections Clause grants exclusively to the state legislature to regulate the election process for the U.S. House and Senate. In a concise, clear and well-reasoned order, Judge Ursula Ungaro of the Southern District of Florida granted summary judgment in favor of the defendants on September 9th.

Of course, it should not be necessary for a federal judge to remind legislators that the adoption of a measure by voters pursuant to specific constitutional authority is as much an act of legislation as the enactment of a statute through the ordinary legislative process. However, the battle is not over. Republicans spent millions of dollars in an effort to defeat the ballot measure. One of Gov. Rick Scott’s first actions after taking office was to withdraw the amendment from review by the Department of Justice, as required under the 1965 Voting Rights Act due to Florida’s spotty historical record on minority voting rights. He finally resubmitted it after a separate lawsuit was filed to force compliance. And the Florida House of Representatives has authorized up to $30,000,000.00 in taxpayer monies to litigate the measure. Entrenched legislative prerogatives die hard, regardless of the wishes of voters.

The summary judgment order can be found here: http://www.fairdistrictsnow.org/pdf/Diaz-Balart-v-Browning-Opinion.pdf

Sources: Orlando Sentinel; St. Petersburg Times; Redistrictingonline.org; Fairdistrictsnow.org

17 thoughts on “Redistricting and the Citizen Legislator”

  1. “These are the small government folks?”

    They want a balanced government – reduce the part that protects the air, protects the water, minimizes the amount of rat $#!+ in our green beans, tells corporations to implement safety measures, monitors transportation safety, assures pure medicine, and protects the right to assemble – so they can increase the part that checks the size of janitors’ closets in women’s clinics, ushers everybody to get immunizations from pharmaceutical companies that donate money, authorizes vouchers for private schools, promises SSA funds to wall street, grinds up unions, and jumpstart the private sector by eliminating government jobs.

  2. I will … my mom, aunt, and cousin all died of breast cancer. You can imagine how closely the doctors watch me.

  3. Hope so. Best Texas news I have had or a long time. My best political friend in Minnesota had breast cancer surgery today so keep her in mind. She is a union attorney and has spent a lot of time in Madison lately.

  4. Is there a law requiring districts to occupy a single contiguous land mass? Could not a sufficiently clever Republican majority decide that districts could be drafted based on other criteria – occupation, for instance? How about contrived districts composed of 51% rural farmers and 49% schoolteachers?

  5. Dennis Kucinich is facing a republican redistricting coup. He’s represented the 10th here in Ohio since 1997 and since the republicans can’t beat him at the polls they’ll gerrymander him out of his seat.

    Go to this site and play the redistricting game … The Redistricting Game has been used for assignments in political science courses at University of Colorado, Yale, UC San Diego, and Stanford. LWV is a friend of the site … give it a shot and learn:

    http://www.redistrictinggame.org/

  6. It’s Florida guys, what do you expect? The saddest thing is that it is even not the worst of our Southern Rebel States, but just as crazy. Rick Scott’s election proves that.

  7. Mike A.,

    Greta article…I was involved in the 80’s redistricting in Texas….It is amazing how they can use this process to punish even their own members….I hope that the Constitutional Amendment is upheld….But we will see…

  8. rcampbell:

    It’s actually worse than that. The Florida Secretary of State is the principal defendant and must defend the legitimacy of the amendment by law. Therefore, taxpayers are footing the bill for both sides.

  9. “…the Florida House of Representatives has authorized up to $30,000,000.00 in taxpayer monies to litigate the measure….”

    So, they’re using taxpayer dollars to overturn a law passed by taxpayers. Why, the nerve of those taxpayers.

    These are the small government folks?

  10. The decennial exercise in legislative self-dealing known as redistricting has been frequently assailed as corrupt.”

    The term for corrupt redistricting is often the word “gerrymandering“.

    The Supremes have struggled with whether on not this issues is “justiciable”.

  11. “It requires that congressional district boundaries not be drawn with an intent to favor or disfavor a particular party or incumbent, or to deny or abridge the equal opportunity of racial or language minorities to participate in the political process.”

    That’s a great ideal, and I support it, but it sounds subjective. If a majority party redistricts, it will obviously insist that it complied with the law. It’s like when politicians take a big donation and, coincidently, draft legislation favoring the donor.

    I think if Wisconsin redistricted right now and claimed to adhere to a principle like Florida’s, its Supreme Court would agree that it had done so.

  12. Mike,
    I will echo Gene’s kudos. It amazes me how radicals like Scott can pull the wool over so many people’s eyes. I am glad that his fellow conspirators ran into a judge who actually follows the rule of law.

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