Florida Redistricting Cases: the 1990s
In re Constitutionality of Senate Joint Resolution 2G, 597 So.2d 276 (Fla. 1992)
In a special apportionment session that adjourned April 10, 1992, the Legislature adopted Senate Joint Resolution 2-G (S.J.R. 2-G), establishing Senate and House districts. As provided by the Florida Constitution, the Attorney General of Florida petitioned the Florida Supreme Court for a declaratory judgment determining the validity of S.J.R. 2-G. On May 13, 1992, the Florida Supreme Court held that S.J.R. 2-G did not discriminate against minorities, but the court retained jurisdiction to entertain further objections. The court also held that the plan met the equal protection standard (one person, one vote) and the Florida Constitution's requirements that legislative districts be "either contiguous, overlapping or identical territory." Justice Shaw dissented.
In re Constitutionality of Senate Joint Resolution 2G, 601 So.2d 543 (Fla. 1992)
DeGrandy v. Wetherell, 794 F. Supp. 1076 (N.D. Fla. 1992)
DeGrandy v. Wetherell, 815 F. Supp. 1550 (N.D. Fla. 1992)
Miguel DeGrandy, et al., and the U.S. Department of Justice attacked portions of the Senate and House redistricting plans, alleging that they failed to maximize the ability of African-American and Hispanic voters in Dade and Escambia Counties to elect candidates of their choice. The parties settled the claim regarding Escambia County, and the court approved a proposed consent judgment realigning House districts in that county.
The voting-age population of Dade County is 50% Hispanic, 32% white, and 16% African-American. S.J.R. 2-G provides for 5 Senate districts wholly within Dade County (3 with Hispanic majorities, 1 with an African-American majority, and 1 with a white majority) and 2 that cross into adjoining counties (1 with an African-American controlling plurality and 1 with a white majority). Similarly, S.J.R. 2-G provides for 17 House districts wholly within Dade County (8 with Hispanic majorities, 4 with African-American majorities, and 7 with white majorities) and 3 that cross into adjoining counties (1 with an Hispanic majority and 2 with white majorities). On July 1, 1992, the 3-judge panel announced its decision from the bench, finding that the Senate plan did not violate § 2, but that the House plan did violate § 2 because more than nine Hispanic districts could be drawn in South Florida without having a regressive effect on African-American voters. One hour after the liability judgment was announced, remedial proceedings commenced. The plaintiffs introduced a new plan that reshaped the boundaries of 31 House districts, and less than three hours after the remedial proceedings began, the court ordered implementation of that plan, notwithstanding objections by the state and other parties that the court first permit scrutiny of the new plan and consideration of other remedial options. On July 16, 1992, the U.S. Supreme Court stayed the district court's order.
On July 17, 1992, the district court issued an opinion concluding that the Senate plan violates § 2 of the Voting Rights Act but is nevertheless the best remedy to "balance the competing minority interests in Dade County and the South Florida area." The court concluded that the House plan violates § 2 of the Voting Rights Act, because it impairs the ability of Hispanic voters to elect candidates of their choosing in two districts containing high concentrations of recent Hispanic immigrants to the country. The court held that the plan proposed by the plaintiffs "best remedies the dilution of the Hispanic vote in South Florida while advancing the interests of African-Americans in South Florida" and while minimizing the "ripple effect" or displacement caused by redistricting.
Johnson v. DeGrandy, 114 S. Ct. 2647 (1994)
The state appealed the district court's judgment that upended the House plan, and the United States and the DeGrandy plaintiffs appealed the district court's judgment that upheld the Senate plan. The Supreme Court affirmed the Senate plan and reversed the district court's judgment that the House plan violated § 2. The Supreme Court held that minority groups constituted voting majorities in numbers of districts substantially proportional to their share in the population and that the totality of circumstances did not support a finding of dilution. 114 S. Ct. at 2658-59. Justice Souter said in his opinion for the Court, "Failure to maximize cannot be the measure of § 2." 114 S. Ct. at 2660. Indeed, even a failure to achieve proportionality does not, by itself, constitute a violation of § 2. 114 S. Ct. at 2656-57.
Conversely, achieving proportionality, while establishing a strong indication that minority voters have equal opportunity, does not provide safe harbor against vote dilution claims. That, the Court said, would ignore the clear command of the statute that the question of whether minority voters have been given an equal opportunity to elect representatives of their choice must be decided based on "the totality of the circumstances" rather than on any single test. It would encourage drafters to draw majority-minority districts to achieve proportionality even when they were not otherwise necessary, and would foreclose consideration of possible fragmentation of minority populations among other districts where they were not given a majority. 114 S. Ct. at 2660-61.
The Court rejected the Justice Department's argument that proportionality of a statewide plan should be considered only on a statewide basis. Rather, the Court said, the choice of whether to evaluate the plan on a statewide basis or with reference to a particular region was left to the parties. In this case, the plaintiffs had chosen to attack the plan in the Dade County area, and all the evidence of both sides was directed to its proportionality in that area. 114 S. Ct. at 2662.
Justices Thomas and Scalia dissented, on grounds that an apportionment plan may not be challenged under § 2.
Florida House of Representatives v. United States Department of Commerce, 961 F.2d 941 (11th Cir. 1992)
The Florida House of Representatives brought action against United States Department of Commerce, seeking release of adjusted block level census data under the Freedom of Information Act. The United States District Court for the Northern District of Florida entered judgment in favor of the state (No. TCA 91-40387-WS). On appeal, the 11th Circuit Court of Appeals held that the data sought were within the Department's scope of the deliberative process privilege and that the privilege had not been waived.
Sullivan v. Smith, (M.D. Fla. 1992), mandamus denied sub nom. In re Sullivan, 113 S. Ct. 1369 (1993)
Plaintiff attacked the configuration of Florida's third congressional district. On August 24, 1992, a three-judge panel in the United States District Court for the Middle District of Florida abstained from exercising jurisdiction, on grounds that a three-judge panel in the United States District Court for the Northern District of Florida had implemented the challenged redistricting plan and the court's judgment was pending appeal before the United States Supreme Court.
Johnson v. Smith, 1994 WL 907596 (N.D. Fla. 1994)
Plaintiffs alleged that the congressional districting plan was unconstitutional under the decision in Shaw v. Reno, 113 S. Ct. 2816 (1993) and sought a preliminary injunction to set aside Florida's congressional districts for the 1994 elections. On July 18, 1994, the United States District Court for the Northern District of Florida declined to enter a preliminary injunction because such action "would inevitably disrupt an election process well underway."
Johnson v. Mortham, 915 F. Supp. 1529 (N.D. Fla. Nov. 20, 1995)
On November 20, 1995, following the Supreme Court's decision in Miller v. Johnson, the federal district court found that Florida's third congressional district, which was adopted by the same court (see, DeGrandy v. Wetherell, 794 F. Supp. 1076), constitutes a racial gerrymander and therefore is subject to strict scrutiny. The court found that the DeGrandy court lacked the constitutional authority to adopt a permanent congressional redistricting plan. The court "rejected the defendant's contention that the claim was barred under the doctrine of collateral estoppel" because the issue of racial gerrymandering under Shaw v. Reno, 113 S. Ct. 2816 (1993) "had not been actually raised, litigated or adjudicated" in the prior case. The court also allowed limited discovery on the issue of whether Florida's third congressional district passed strict scrutiny analysis and held that the plaintiffs were not entitled to a preliminary injunction. Circuit Judge Hatchett dissented.
Johnson v. Mortham, 926 F. Supp. 1460 (N.D. Fla. Apr. 17, 1996, as Modified June 6, 1996)
Applying strict scrutiny, the court found that the state did not have a compelling interest in drawing a race-based plan. The African-American population in the district was not sufficiently compact to make out a violation of § 2 of the Voting Rights Act, nor was there sufficient evidence of present discrimination to provide a "strong basis in evidence" that a race-based district was needed to remedy the effects of past discrimination. The court also held that the district was overly burdensome on voters and therefore not narrowly tailored . The court gave the Florida Legislature until May 22, 1996, to draw a new plan. Circuit Judge Hatchett dissented.
Johnson v. Mortham, 1996 WL 297280 (N.D. Fla. May 31, 1996)
Well in advance of the May 22 deadline, the Legislature enacted a congressional plan on May 2, 1996. The district court ordered that the newly enacted plan will serve as an interim plan for the 1996 elections and thereafter until the Florida Legislature adopts another redistricting plan or until further order of the court. The court closed the case and provided that challenges to the constitutionality of the legislatively enacted plan may be brought in a separate lawsuit.
Lawyer v. Dept. of Justice, 117 S. Ct. 2186 (June 25, 1997)
Appellants argued that the district court had erred in not affording the Legislature a reasonable opportunity to adopt a substitute plan of its own. The Supreme Court held that the right of the state to have an adequate opportunity to make its own redistricting choice was satisfied when the state elected to be represented, in the district court action, by its attorney general, who has specific authority to propose and enter into settlement agreements on behalf of the state. The Court also held that the plan approved by the district court "did not subordinate traditional districting principles to race" and that the district court did not commit clear error in approving the proposed district. Justices Scalia, O'Connor, Kennedy, and Thomas dissented ("opportunity to apportion" must mean through normal legislative processes, not through courthouse negotiations followed by a court decree).
Fouts v. Harris, 88 F. Supp.2d 1351 (S.D. Fla. 1999), aff"d sub nom. Chandler v. Harris, 120 S.Ct. 1717 (2000)(mem.)
On April 2, 1998, Fouts, et al., challenged three congressional districts (17, 18 and 23) and two Senate districts (30 and 40) in federal court on grounds that their configurations violated the Equal Protection Clause of the U.S. Constitution by creating a scheme to ensure the election of Black and Hispanic candidates. The plaintiffs voluntarily dismissed their complaint as to senate districts 30 and 40. During the motion hearing on October 12, 1999, the plaintiffs dismissed their complaint regarding congressional district 17. On October 25, 1999, the court dismissed the remainder of the case based on the equitable defense of laches (the plaintiffs' five-year delay in bringing the suit was inexcusable; any court-ordered redistricting before the 2000 census would cause voter confusion and would require use of outdated census figures). On April 24, 2000, the U.S. Supreme Court affirmed the judgment without opinion.
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Update: November 6, 2000 (psw)