Amendments 5 and 6: Changes in Redistricting Process

Are fairness standards needed for redistricting of legislative and congressional districts?

Redistricting is the act of re-dividing the state into new election districts. By law, it happens every 10 years. And each time lawmakers begin the process it draws intense scrutiny from critics who accuse incumbents of redrawing boundaries to ensure their re-election. Inevitably, the majority party is accused of fashioning districts to keep its majority. Constitutional Amendments 5 and 6 are an effort to change that.

FairDistrictsFlorida.org, the organization behind Amendments 5 & 6, is working to establish constitutionally mandated fairness standards for the way Florida draws legislative and congressional district lines.

One of the FairDistrictsFlorida.org amendments is aimed at redrawing state legislative districts and the other is focused on congressional districts.

According to FairDistrictsFlorida.org, these amendments would establish easily understandable, non-partisan standards in creating legislative and congressional district boundaries. While protecting minority voting rights, the standards would prohibit drawing district lines to favor or disfavor any incumbent or political party. Districts would have to be compact and utilize existing political and geographical boundaries. In other words, natural competitiveness and fairness would be required.

Critics, led by leaders of the Florida Legislature, say the amendments' goals, though laudable, are impossible to meet and would be impossible to defend in court. Further, they say, the amendments as proposed would prevent legislators from drawing districts that balance the playing field for minorities (known as minority-access districts), which historically have not been compact and by their nature favor one party over another.

In response to amendments 5 & 6, the Legislature added a third redistricting amendment, drawn up by Republicans, the majority party in the current Legislature, and passed on a party-line vote. The legislators involved in the effort said the amendment (assigned No. 7 on the ballot) ensured that minority-access districts would be protected.

Critics said Amendment 7 was an attempt to confuse voters and gut the FairDistrictsFlorida.org amendments. They were concerned that voters would approve all three redistricting amendments, effectively nullifying the changes set forth in Amendments 5 & 6. Opponents filed suit in circuit court to have Amendment 7 struck from the ballot, arguing it was confusing and misleading.

A circuit judge in Leon County agreed and ordered Amendment 7 removed from the ballot. On Aug. 31, the Florida Supreme Court upheld the lower court ruling, effectively eliminating it from the 2010 ballot.

The ballot

Amendments 5 & 6 were placed on the ballot after the required Supreme Court approval and the collection of the required number of registered voter signatures on petitions.

The Supreme Court ruled on Jan. 30, 2009, that the proposals satisfied the requirements that constitutional amendments be accurately described and address only a single subject, the latter being a legal standard that tripped up past bids to change Florida's redistricting system.

Here's how Amendments 5 & 6 will appear on the ballot:

PETITION 1: Standards for drawing congressional district boundaries. Congressional districts may not be drawn to favor or disfavor an incumbent or political party. Districts shall not be drawn to deny racial or language minorities the equal opportunity to participate in the political process and elect representatives of their choice. Districts must be contiguous. Unless otherwise required, districts must be compact, as equal in population as feasible, and where feasible must make use of existing city, county and geographical boundaries.

PETITION 2: Standards for drawing legislative district boundaries. Legislative districts may not be drawn to favor or disfavor an incumbent or political party. Districts shall not be drawn to deny racial or language minorities the equal opportunity to participate in the political process and elect representatives of their choice. Districts must be contiguous. Unless otherwise required, districts must be compact, as equal in population as feasible, and where feasible must make use of existing city, county and geographical boundaries.

The history

The U.S. Constitution requires states to use new U.S. Census data every 10 years to Florida district map redraw their federal and state lawmakers' districts. Each decade, the boundaries of congressional, state house and state senate districts are redrawn. This was originally intended to ensure that districts are roughly equal in population.

The state Legislature approves redistricting plans, which means the political party that controls the Legislature controls redistricting. No matter which party has control of the Legislature, that party's main goal is to protect its majority and its incumbents in the drawing of new district boundaries. This is called gerrymandering, a term that dates from 1812 and originated with Elbridge Gerry, a Massachusetts politician given to political maneuvering.

While Gerry was in office, his party drew a district shaped like a salamander to ensure it favored his political party. In Florida, too, gerrymandering results in oddly shaped boundaries. For example, Fort Lauderdale, with a population of 180,000, is cut into four congressional districts that literally put people living across the street from each other in different districts. Winter Park, population 29,000, has four Central Florida members in Congress. And state Senate District 27 ties together Palm Beach on the east coast and Fort Myers on the west, though the residents of those cities have little in common. District 55 is a narrow strip that starts in southeastern St. Petersburg, crosses the Sunshine Skyway bridge, snakes south through Manatee County and ends in Sarasota.

Though Florida's registered Democratic voters slightly outnumber Republicans, the congressional delegation is two-thirds Republican and the Legislature is overwhelmingly controlled by the GOP, a phenomenon critics say is partly a result of gerrymandering.

That is not to say that Democrats would not gerrymander. In taking Republicans to task for challenging Amendments 5 & 6, the Miami Herald said, "there is little doubt that if the Democrats controlled the Legislature they would have tried to stop it, too. It's all about keeping political power."

Past efforts to stop gerrymandering hit roadblocks, including a 2005 reform measure that had too many words. Under state law, ballot language for citizen initiatives to amend Florida's Constitution can't exceed 75 words. The petition in question, which was meant to go on the November 2006 ballot, had 81 words. That same year, the Florida Supreme Court rejected a proposal that had a similar goal on the grounds that it violated the single-subject rule and its title and summary were misleading.

The players

FairDistrictsFlorida.org is run by leaders from both parties. The group's campaign chairwoman is Miami lawyer Ellen Freidin, a Democrat who served on the 1997 Constitutional Revision Commission, where redistricting reform failed to gain final approval. The FairDistricts chairman is Tallahassee lawyer Thom Rumberger, a former Republican legislator who participated in a 1992 redistricting battle and later vowed to change the system. He is a member of the Collins Center board of trustees. Honorary co-chairs include former U.S. Sen. Bob Graham; former state Sen. Daryl L. Jones; former U.S. Attorney General Janet Reno; former Assistant Interior Secretary for the Nixon and Ford administrations Nathaniel Reed; and former state Comptroller Bob Milligan. Find the FairdistrictsFlorida.org campaign finance history here.

Opponents of amendments 5 & 6 include future House Speaker Dean Cannon, R- Winter Park, and Senate President-designate Mike Haridopolos, R-Melbourne. The two are in charge of the Legislature's preparation for the next round of re-districting after the 2010 Census. Some prominent members of the legislative black caucus are also against the measure, arguing that it could end up diminishing minority representation in the Legislature and Congress.

Arguments against

Haridopolos said passage of Amendments 5 & 6 will increase the chance of legal challenges to future redistricting plans, resulting in the courts, not the Legislature, deciding how districts are redrawn. A U.S. Supreme Court ruling may also have an impact. In 2009 the court ruled in a North Carolina case that the only election districts entitled to certain federal Civil Rights Act protections meant to preserve and ensure minority voting power are those districts in which minorities make up at least half of the voting-age population. Combined with the new restrictions under Amendments 5 & 6, the critics argue,that ruling could affect districts with less than a 50-percent minority voting block that traditionally elect minority candidates.

House special counsel Miguel De Grandy told the House Select Policy Council on Strategic & Economic Planning that the Supreme Court ruling might result in a reduction of minority representation. Districts with less than 50 percent minority representation often elect minority candidates, he said, and leaving those districts open to the redistricting rules in Amendments 5 & 6 might affect voting patterns that have resulted in minority representation over the years.

Arguments for

Freidin, the chair of FairDistricts.org, dismisses those arguments. She said the amendments ensure that the redistricting process won't be detrimental to minorities. "We have total confidence that our amendments provide protections," she said.

That was also the opinion of two attorneys with a Washington, D.C., law firm asked by state Sen. Christopher Smith, a Democrat representing Broward and Palm Beach counties, and state Rep. Perry Thurston, a Democrat representing Ft. Lauderdale, to review 18 questions raised by U.S. representatives Corrine Brown and Mario Diaz-Balart about the effects of the U.S. Supreme Court ruling in the North Carolina case on the proposed redistricting ballot initiatives in Florida.

"If enacted, (the initiatives) would dramatically improve the redistricting process in Florida and make Florida's elections fairer for all political parties and candidates," wrote Jenner & Block attorneys Paul M. Smith and Michael B. DeSanctis. "They would also protect, and indeed enhance, the ability of minorities to participate in the political process and elect representatives of their choice."

FairDistrictsFlorida.org says it will require vigilance on the part of voters to assure redistricting is done fairly, even with the passage of Amendments 5 & 6. The process will be open to public scrutiny, and the voters will have to watch closely to determine whether lawmakers are trying to draw districts to protect incumbents or a political party.

If lawmakers were to persist in trying to gerrymander, the proposed districts could be challenged in court, where judges would have clear criteria spelled out in Amendments 5 & 6 to decide what is constitutional. In a 2002 legal challenge to the Legislature's political gerrymandering, the plaintiffs said the districts weren't compact or community based. The Florida Supreme Court rejected the challenge because compactness and community-based boundaries weren't ''constitutionally required.'' The two redistricting amendments are intended to change that.

Black caucus divided

The debate over redistricting has divided the state's legislative black caucus. Last year a majority of the 26-member caucus voted in favor of the FairDistricts proposal, saying the measure would not hinder hard-fought gains by blacks to gain representation in Congress and the state capital. The vote was a turn from recent years, when African-American lawmakers rejected efforts to reform the politically motivated redistricting process.

But in April 2010, caucus chairman Sen. Gary Siplin, D-Orlando, sponsored the Senate measure, which would trump Amendments 5 & 6 if passed into law. Voting with Siplin was Senate Democratic leader and former black caucus chairman, Al Lawson, D-Tallahassee. Other black caucus members voted against Siplin's proposal.

There is potent political history behind the debate within the black caucus that has made the issue controversial. In 1992, African-American Democrats joined minority-party Republicans to draw congressional and legislative districts that concentrated black voters (a good example is U.S. Rep. Corrine Brown's district, which extends from Jacksonville to Orlando). That resulted in the election of Florida's first black members of Congress since Reconstruction as well as more black state legislators.

But the same redistricting plan that improved black representation also removed reliably Democratic black voters from neighboring districts, a realignment that helped Republicans subsequently win control of the congressional delegation and the Legislature.