Within minutes of the opening arguments before the Florida Supreme Court Friday, two justices lashed into lawyers for opponents of the legislatively-drawn map when they concluded that the court rejected more than eight flawed districts when it threw out the Senate map March 9.
“Speaking for the person that wrote it, it was pretty clear that there were certain districts that were specifically invalidated,’’ said Justice Barbara Pariente, the author of the 5-2 opinion that forced the state Legislature to return in an extraordinary session to revise its Senate map.
She suggested that it would be unfair to the Senate if the court were to reopen districts where challenges previously were rejected “or the burden of the challenges were unmet.”
Justice Peggy Quince also raised doubts about the arguments raised by the Florida Democratic Party and the coalition of voter groups that want the court to reject the entire map. "Why would want we want to go back and look at others? We looked at the whole thing,'' she said. "It just doesn't resonate."
But Paul Smith, lawyer for the Florida chapter of the League of Women Voters, the National Council of La Raza and Common Cause, said that the court must make sure that the new map adheres to the Fair District standards approved by voters and the new map clearly does not do that.
Pariente conceded that that argument “is, in my view, your strongest challenge’’ but suggested it could also be “reasonable legislative discretion.”
Smith countered that there were “plenty of competitive districts they could have drawn” that didn’t divide Daytona Beach but “they just didn’t’want to do it.” He said they "gratuitously split a county” in “a very clear effort to make sure they cancel out Democratic votes in that region of the state.”
The arguments are part of the required court review of the Legislature's redistricting maps. This is the lawmakers' second attempt to get its Senate map approved by the state's high court. The court rejected their first attempt by a 5-2 vote as violating the state Constitution because of eight flawed districts, a numbering system that protected incumbents and a plan "rife with indicators of improper intent.''
The court unanimously approved the House's redistricting map, but legislators were forced to come back for a 15-day extra session to redraw its Senate boundaries.
The court has until May 14 to review the Legislature's second attempt at drawing its redistricting maps and if the court rejects it this time, the justices must propose a fix themselves.
The Republican-led Legislature, faced with its last strike, has hired former Florida Supreme Court Justice Raoul Cantero, now a lawyer with the Miami law firm of Case and White, to argue its case. He will be paid $695 an hour. Cantero commended his former colleagues but urged them to give the Legislature deference in the once-a-decade process.
"You can always make a better plan,'' Cantero told the justices, "… but that's not the purpose of this court. The purpose of this court is to determine if our plan is legitimate."
Pariente conducted most of the questioning, just as she did during the hearing into the first round of maps. This time, she made it clear that if the court were to take control of the once-a-decade mapmaking process, it would revise the map selectively.
"If we decided that one district was invalid, nobody would suggest that the whole map should be redrawn," Pariente said.
She zeroed in on the proposed District 8, drawn by Republican senators to split Volusia County, a Democrat-dominated county, into three districts while leaving the adjacent Republican-dominated counties intact.
Democrats claim it was designed to dilute the Democratic vote, protect incumbent Sen. John Thrasher, R-St. Augustine in the adjacent District 6, and elect a Republican in the newly opened District 8 seat. The NAACP says it also isolates black voters in Daytona Beach.
"That is a concern of mine,'' Pariente said, adding that she thinks the configuration of these districts is the Democrats' "strongest argument."
Smith, the lawyer for the coaltion, underscored that point and said the newly drawn black-majority district centered in Duval County, District 9, packs Democrats in such a way as to make every other surrounding district "Republican-leaning or very likely Republican held."
But Cantero countered, saying the Senate put an end to the sprawling district it previously proposed and created a black majority district within the confines of Duval County because the court wanted it that way.
"I've never seen a case in my life that somebody gets reversed because this is what a court told us to do,'' he said.
Unlike the first round, when the NAACP commented on the first map but did not ask the court to reject it, the group this time vigorously urged the court to reject the Senate map.
Allison Riggs of the Southern Coalition for Social Justice argued that the new Senate map dilutes minority voting strength in District 9 in Duval County. Also, in District 31, a sprawling district in Broward and Palm Beach counties now held by Democrat Chris Smith, the number of black voters who are citizens is estimated at 43 percent.
The result is that a black candidate could lose to a white candidate because of the state's history of "racially polarized voting,'' in which white Democrats won't vote for a black Democrat, Riggs told the court. The Senate maps don't provide enough information about that practice, she said, and absent that, risk violating the Constitution. She disagreed, however, that the NAACP's claims are too late.
"I think this court owes more in fairness to minority voters in the state than it does to the Senate,'' she said after the hearing. "If someone is going to have to be confronted with unfairness, it should not be black voters in Northeast Florida."