Florida should delay the primary or adjust its election dates this year in order to fix its unconstitutional congressional map and avoid an invalid election, lawyers for a coalition of voters argued Thursday in circuit court.
But lawyers for the Legislature told Circuit Court Judge Terry Lewis that fixing the map before the November elections would "cause horrific uncertainty" for voters and would be an extreme, unnecessary remedy.
Lewis' ruled on July 10 that the state’s congressional redistricting maps are invalid and declared two of the states's 27 districts unconstitutional – those held by U.S. Reps. Corrine Brown, D-Jacksonville, and Dan Webster, R-Winter Garden.
But the Legislature surprised him last week and decided not to appeal the ruling. House Speaker Will Weatherford and Senate President Don Gaetz then urged Lewis to let them revise the map after the November elections, in order to avoid disrupting the fall elections and to comply with federal voting rules that impose a fixed schedule for sending ballots to overseas military.
The coalition of voters groups, led by the League of Women Voters, filed the lawsuit challenging the state's congressional map as violating the Fair Districts rules approved by voters in 2010.
After a 13-day trial, Lewis concluded that the Republican-controlled Legislature allowed “improper partisan intent” to infiltrate the redistricting process and seemingly ignored evidence that partisan political operatives were “making a mockery” out of their attempts to conduct themselves with transparency.
Lewis retained jurisdiction over the case, requiring any remedy to be approved by him. Now the voters groups are urging him to redraw the map himself or hire a redistricting expert to do it for the court before the elections, or the election will be invalid.
They argued there is precedent for courts to step in and fix a map to accelerate the process and suggest five scenarios, including having the court push back the primary 20 days to accommodate the schedule or, if needed, push back the date of the general election.
They also claim that legislators, who challenged the Fair Districts amendments that imposed the new redistricting rules and then failed to comply with them, should no longer be trusted to draw a fair map.
"Allowing the folks who made a mockery of the process to redrawn the maps adds insult to injury,'' said David King, attorney for the plaintiffs.
In a brief filed on Wednesday, voting groups proposed a new map that would affect 10 north and Central Florida districts, making each of them essentially much more competitive than they are today. The hallmark of their plan, drawn with the assistance of a Harvard professor -- is a new east-west district that no longer snakes from Jacksonville to Orlando but spreads across the rural counties of North Florida, consolidating fewer Democrats into districts while, they claim, retaining minority voting strength.
But George Meros, a lawyer for the House of Representatives, told the court that the remedy by the plaintiffs is an attempt “to blow up the map for political purposes.”
“Was it as politically motivated and politically corrupt as the three or four or five maps” they previously submitted, he asked at the hearing.
Meros suggested that by creating disruption and chaos it will "benefit the Democratic Party" and hijack the process.
In a motion filed late Wednesday, lawyers for the Legislature asked the judge to cancel’s today’s hearing and they called their claims “lawless” and unconstitutional.
“Plaintiffs invite this Court to exercise powers that no court in America has ever exercised before: to remove members of Congress from their seats, to override the mandates of federal law, to prohibit the Legislature from exercising its law-making function to enact redistricting legislation under the United States and Florida Constitutions, to dictate the internal procedures of a legislative body, to render an advisory opinion regarding future redistricting legislation, and to impose a redistricting plan without due process,’’ the legislators wrote in their filing.
But John Devaney, attorney for the group of individual voters that challenged the congressional map. said the state faces "a constitutional mess the defendants created by doing backroom deals.''
Plaintiffs allege that the Legislature’s “scorched earth litigation strategy” and a “cynical strategy to ‘run out the clock’” had the result of delaying the case and legislators should not be rewarded with the opportunity to conduct elections in November with the flawed map.
They noted how plaintiffs filed the case in 2012 but legislators interfered with a swift resolution.
“They and the operatives hindered public scrutiny by deleting documents and raising meritless claims of privilege so that litigation would be sufficiently delayed to argue that the 2012 election – and now the 2014 election – must go forward under invalid districts.
"Now, these same individuals who fought the FairDistricts Amendments at every hedgerow and intentionally violated the Florida Constitution argue that this Court should defer to them before crafting a remedial map,’’ they wrote in a brief filed with the court Wednesday.
"The cost borne by the taxpayers for these efforts surely dwarfs the likely expense of conducting a special election under constitutional districts. Permitting representatives elected from invalid districts to remain in place for a full term would encourage similar conduct in the future, unfairly penalize the voters of Florida, and dilute the effectiveness of the FairDistricts Amendments.”
Legislative records show that the House and Senate have spent more than $4 million in taxpayer money on redistricting efforts, including hiring consultants and lawyers to defend the districts the court has ruled invalid.
Three of the five proposed alternative schedules for voting would force the state to apply for a waiver to a federal law requiring that state send military absentee ballots to military service members at least 45 days before the election. House Speaker Will Weatherford, R-Wesley Chapel, and Senate President Don Gaetz, R-Niceville, raised questions about that suggestion in a statement on Wednesday.
"We are very concerned about the timetables the plaintiffs have outlined, particularly the fact that they would violate federal laws protecting the voting rights of men and women who risk their lives to serve our country abroad," Weatherford and Gaetz said in a joint statement. "We were surprised that the League of Women Voters would approve of their attorneys presenting an elections timetable that could abridge the voting rights of men and women serving in our military."
Lewis rejected the request to cancel the hearing.
"I'm looking at what are my legal alternatives and logistically and practically speaking about where we should go from here,'' he said. "I'm really interested in what does the law require at this point."
He asked if he had the authority to call for another election after the primary had taken place. Devaney told him there was.
"If that's the case, why the big rush?'' he asked.
Devaney said that "to hold one election, instead of two, is going to create more certainty" and would be better for voters.
King said that if the court decides to let the Legislature redraw the map, Lewis should impose some clarity and guidance regarding the invalid districts, particularly District 5 which Lewis called "bizarrely shaped."
"It is critical that that bizarrely shaped district not survive the process,'' King said.
Meros countered that is proof they want to "blow up the map" and distribute black voters into white Democratic districts in an "obvious attempt to favor the Democratic Party."
He also argued that Lewis, as a judge in a state court, has no authority to impact a federal congressional election.