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Redistricting: Will Justices Open Door to Endless Litigation?

May 8, 2013 - 6:00pm

Lawyers for the Florida Legislature and a coalition of left-wing voters' groups battled it out before the state Supreme Court Thursday morning, as at least three of the seven justices made it all-but-clear how they intend to rule on the challenge to the 2012 Senate redistricting map.

Under your theory of the way this operates, there can be a succession of clients, maybe with different plaintiffs, and it could go on and on and on and we could be litigating this redistricting plan for the next decade," an exasperated Justice Charles T. Canady told attorney Adam Schachter, who's representing a Democrat-leaning coalition called Fair Districts Now (made up of the League of Women Voters of Florida, the National Council of La Raza, and Common Cause Florida).

The justices will decide whether two cases currently before Judge Terry Lewis of the 2nd Judicial Circuit Court of Florida will be allowed to proceed. The plaintiffs are alleging that the newly drawn Senate and congressional maps reflect gerrymandering in favor of Republican candidates and incumbents, and unfairly disadvantage racial minorities, while lawyers for the defense are insisting that the Supreme Court's approval of the maps in 2012 was the final word on their validity.

Schachter argued that the 2012 approvals were simply facial, and did not prevent the high court from revisiting at some future date if further evidence was discovered indicating that the districts were drawn up with the improper intent.

Chief Justice Ricky Polston followed that premise to its logical conclusion.

[Under your theory:] Can another lawsuit [after this one is concluded] be brought next year?, he asked Schachter, who struggled to come up with a reply: Conceivably ... yes ... but, but that's ...

And the year after that? Polston pressed. That's consistent with your position, right? This just never ends. ... Don't you think the language of the Florida Constitution intended for all that not to happen?

The language Polston referred to is a provision in the Constitution that says the routine review that the Supreme Court gives to new redistricted maps shall be binding upon all the citizens of the state.

Justice Barbara Pariente tried to offer Schachter a lifeline, suggesting that traditional legal doctrines like res judicata which says that the same civil cases cannot be retried once a final decision has been handed down would prevent that kind of serial litigation.

Canady reminded her those rules apply only in cases with the same plaintiffs and defendants. Under Fair Districts Now's theory, any individual voter alleging new evidence that the maps were drawn with the wrong intentions could bring a fresh suit.

It may be a little messy until we get the law straight, Pariente conceded. "My frustration is that ... nobody ever said therewouldn'tbe a chance to litigate these factually intense claims after the the initial judgment was entered."

However, former Justice Raoul G. Cantero, the main attorney representing the Legislature, reminded Pariente that in her 2012 rulings she implied exactly that. In her opinion concurring with the final judgment to approve the Senate maps, Pariente lamented how little time (30 days) the court has, under current Florida law, to review the maps and make a judgment, but she said the solution was to amend the Constitution.

You never said, 'At least they get to do this all over again in the [trial] courts; this is only a facial review, this is only superficial, they're going to go back and do it all over again,' Cantero said.

Sunshine State News previously reported court documents show that during the redistricting process the Florida Democratic Party -- along with several Democratic state legislators and U.S. congressmen -- triedto gerrymander districts in favor of their party's candidates and incumbents.

The state's 1st District Court of Appeal is getting ready to rule on another suit brought by Fair Districts Now, which seeks to overturn centuries-old separation-of-powers protections and have legislators and their staff forced to testify concerning their intentions when drafting legislation.

Reach Eric Giunta at or at (954) 235-9116.

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