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What's behind 'retrogression?' The big word that's become focus of redistricting debate

Retrogression. It’s a big word, with heavy implications for Florida’s redistricting debate. We wrote about it in today’s story, highlighting how the issue is already causing some intra-party turmoil for both Republicans and Democrats.

Legislators must decide how many new districts should be carved to elect minorities, comply with the new standards of Amendments 5 and 6, and stay clear of violating the federal Voting Rights Act.

Retrogression is basically the reduction in voting strength of a racial or ethnic minority based on a redistricting plan.

There are questions galore: Does retrogression apply to the whole map or to just voters in a certain region? Is it retrogression if the voting strength of a minority majority district in Jacksonville is reduced but two new districts are created that increase the opportunity for blacks to be elected in other parts of the state? What constitutes voting strength? Performance or percentage?

Finally, will Florida legislators be willing to carve districts to help advance candidates from the growing ethnic and racial groups? (If they do, it could mean putting at risk incumbent white politician from both parties, especially in Congress.) Florida now has three Hispanic members and three blacks in Congress but the growth allows for as many as six Hispanics and one more black of Caribbean heritage.

“I can’t answer that question on what that magic number is – what is retrogression – that’s going to be a paradigm issue we have to look at,’’ Rep. John Legg, the co-chairman of the House subcommittee on Congresssional redistricting told us in October. But when will those questions be answered? “Before the end of session,” he said.

Lawmakers could do what they traditionally do with other constitutional amendments and write an implementing bill, spelling out the definitions of terms such as retrogression, and guiding how they want an amendment interpreted. That might give them a framework on which to defend their maps, instead of leaving it to the courts to interpret what they consider retrogression. But Sen. Don Gaetz and Senate President Mike Haridopolos have told us that the maps instead will serve as their definitions.

We expect we’ll be writing much more about minority districts and retrogression as this issue remains central to what is going on behind closed doors, and in the open, in Tallahassee over the next two months.

A little more background: Hispanic growth surged in Florida 57 percent in the last 10 years, so legislators must decide whether to create more districts designed to help elect Hispanics to the Legislature and Congress. The area that has seen the most Hispanic growth was been in Central Florida, where many Puerto Rican Hispanics have led to a surge in Democratic voters rolls in Orange and Osceola counties.

The 2010 Census reports that Hispanics now make up 22.5 percent of Florida’s population and more than half of them live in three counties: Miami-Dade, Broward and Orange counties. In Miami Dade County alone, Hispanics make up 65 percent of the county’s population, or 1.6 million people. But of that 1.6 million Hispanics, 70 percent are Cuban.

Just as Miami’s Hispanic population is dominated by Cubans, Central Florida’s is dominated by Puerto Ricans. In Central Florida, there are 687,986 Hispanics; 49 percent of them are self-reported Puerto Rican and only 7 percent are of Cuban descent.

So, to give you a bit of a road map into legislative thinking regard minority districts and retrogression, here are just some of the highlights from the House and Senate’s redistricting committee meetings:
Sen. Alan Hays, R-Umatilla, sparked the first controversy when he suggested that before districts are drawn to elect Hispanics, legislators must first decide how many Hispanics counted in each district is eligible to vote.

“Before we design a district anywhere in the state of Florida for Hispanic voters, we need to ascertain that they are citizens of the United States,” Hays said at a Senate redistricting meeting in October. “We all know there are many Hispanic-speaking people in Florida that are not legal. And I just don’t think it’s right that we try to draw a district that encompasses people that really have no business voting anyhow.”

Hays never apologized but told his colleagues privately that he meant to say it differently. Hispanic Democrats called for his ouster from the committee but Republican leaders dismissed it and moved on.

A similar question was at issue in Texas earlier this year, when a federal court there ruled in Lepak v. City of Irving that city council districts must be drawn based on "equal numbers of citizens with the ability to vote" not based solely on population. The plaintiffs wanted the court to require that the city draw its lines on the basis of citizing voting age population instead of on total population. One district had much lower citizen VAP than the others and plaintiffs argued that gave them nearly twice the voting power without the voters and was in violationg of the “one person, one vote principle.”

The ruling, which is on appeal before the U.S. Supreme Court, raised the issue of representational equality versus electoral equality and suggested that case law was unclear about the precedence. If the federal court upholds that decision, it could have huge implications for Florida, resulting perhaps in immigrants, who have not yet been naturalized and earned their right to vote, would no longer be counted for redistricting purposes.

The second conflict emerged this month, when Senate Democratic Leader Nan Rich criticized a congressional map submitted by the Florida branch of the NAACP for leaving intact many of the existing congressional district lines, despite new standards imposed by voters when they approved constitutional Amendments 5 and 6 in 2010.

The existing congressional lines “were drawn to preserve incumbents and political parties,’’ Rich said. “I don’t believe that 63 percent of the voters in the state of Florida decided to vote for a 5 and 6 so so that we could come back with a map that is what it was 10 years ago.”

Gaetz, the Niceville Republican and incoming Senate president agreed saying Rich “makes a very good point. In order to be faithful to Amendments 5 and 6, we can’t be slavish devotees to the way that districts were drawn 10 year ago. We have to be mindful where people live and if minorities live in certain areas, we have to be mindful of that.”.

Rich said that the NAACP maps failed to take into account many of the standards imposed by the new amendments: compact districts, existing geographic or political boundaries. “There are so many things, so many standards that were not there 10 years ago that I think we need to factor in.”

Sen. David Simmons, an Orlando Republican and one of the lawyers on the committee, however said he believed that whatever they do, they must preserve the voting strength of the existing minority districts. “You cannot diminish an existing district and that’s the reason there is a rationale for looking at the existing districts right now and building upon them, working from those districts.”

He later added: “The existing minority access districts that we have cannot be divided into two sub-districts of 25 percent….If it’s 50 percent now, I don’t belieer it can be broken into two districts of 25 percent because I believe the constitutional amendments prohibit that because they prohibit diminution of access.”

But state Sen. Gary Siplin, an Orlando Democrat, and a lawyer who is black, defended the existing maps and the configuration of the existing black districts because, he said, they are the foundation for the current strong representation of minorities in the state. “We already have the constitutional basis to represent and reflect the minorities in the state of Florida,’’ he said.

Sen. Joe Negron, a Stuart Republican and a lawyer, said he believes that both racial and language minorities must be treated the same when drawing minority districts.

Sen. Andy Gardiner, the Senate Republican leader from Orlando, agreed and elaborated on how he believes legislators must avoid retrogression. “When we are looking at districts, we [should] take into consider that we do not diminish and we really look at the percentages,’’ he said. “If a particular district is at a percentage, I think it’s very imporant across the minority distrits that it stays within that percentage.”

Republican legislators and the lawyers and staff members they have hired in both the House and Senate appear to be in agreement that minority districts must maintain the same composition they have today to avoid running foul of the retrogression standards.

At a House subcommittee meeting on Senate redistricting on Nov. 11, Rep. Janet Cruz, D-Tampa, asked “if there is a district drawn with 80 percent population is there any violation of the Constitution?”

George Meros, a Gray Robinson lawyer hired by the House to provide counsel on redistricting, answered: “Not necessarily. It all depends on each particular district; how each district could be drawn based on the circumstances of that particular district.”

Rep. Evan Jenne, D-Hollywood, asked: What if a district is 20 percent Haitian, 20 percent Cuban, 20 percent other, 40 white -- would that qualify as a minority district? If there are 3 minority groups “is that a true minority seat by definition under the law because there are three separate minorities, none of which equal a majority but, when combined, do create a minority?”

“There is no easy answer,’’ Meros replied. It depends on how the area performs in elections, he said. Do whites vote as a bloc against the minorities? Do minorities vote together or separately? “The analysis will determine what is to be preserved.”

Meros answered again: “There is no easy answer.” He said it was important to determine if the “other” minorities are protected under Amendments 5 and 6. “Assuming that they are, then one of the questions would be do you have to preserve that and how do the minorities vote.” Do whites vote as a bloc against the minorities? Do minorities vote together or separately?  Do they vote as a bloc? “The analysis will determine what is to be preserved” as a minority district. “Each of these answers is dependent on the facts given in a given area and also the performance,” he said.

In reviewing a map submitted by the public, Redistricting Staff Director Alex Kelly told the committee that a proposal to create five Hispanic seats in South Florida that had a voter registration of less than 50 percent “will actually perform” to elect an Hispanic candidate.

Florida’s legislature is full is examples of minority lawmakers elected from districts that have voting age populations with far less than 50 percent minorities.

Democratic Rep. Dwayne Taylor of Volusia, for example, in 2002 had a black voting age population of only 19.64 percent but elected a black, former Rep. Joyce Cusack. She was replaced by Taylor, also black, in a district that now has a black voting age population of nearly 23 percent.

By contrast, Rep. Gwyn Clark Reed, D-Pompano Beach, asked one of the House’s redistricting lawyers if packing a district with 80 percent of a population would violate the Constitution.

“It depends,’’ said Allan Windsor of the Gray Robinson law firm. “You have a situation where you have one minority district and you could have more” but only if the voters in the surrounding areas would support that.

“It’s how do people vote,’’ he said. “There is no magic number that would say a district is constitutional or unconstitutional.”