Did a pair of constitutional amendments approved by Florida voters in 2010 radically alter centuries-old protections of legislative privilege, at least when it comes to the Legislature's decennial redistricting process? Attorneys for a liberal "voters rights" coalition are arguing they did.
We are here on a case which ... will be the first time in the history of this state that a party will be allowed to compel a legislator to testify in a deposition about the core functions he engaged in during the legislative process, declared former state Supreme Court Justice Raoul Cantero during his opening remarks. Cantero was representing the Legislature.
Judges T. Kent Wetherell, Robert Benton, and Scott Makar of Florida's 1st District Court of Appealheard oral arguments Tuesday afternoon in the latest round of disputes surrounding the Legislature's reapportionment of the state's Senate and congressional districts, which was completed in 2012 based on new data from the 2010 census.
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 is looking to force legislators to testify why they voted to approve the 2012 Senate and congressional maps, and to describe how they gathered information for those votes. English-speaking countries have for centuries considered that type of information privileged, essential to the maintenance of an independent legislature and a constitutional separation of powers between the different branches of government.
Without [the ability to depose legislators], the words of these amendments will be rendered meaningless, attorney Adam Schachter argued on behalf of the coalition, referring to language in the 2010 amendments that says legislators may not craft districts with the intent to favor or disfavor a political party or an incumbent. [We need to] peel back the curtain to some extent. ... Recognizing there is a balance that needs to be struck, there has to be some ability to breathe life into these amendments, to get to whether there is, in fact, an appropriate intent.
Cantero argued that well-established legal precedents for example, those that deal with proving a law is racist in its intent, in violation of the 14th Amendment of the U.S. Constitution provide the appropriate tools for discerning legislative intent.
The way we've determined legislative intent for two centuries in this country [is] through objectivefactors, Cantero answered Wetherell, who asked what tools a court would have at its disposal short of the compelled testimony of legislators. To the extent that the map deviates from those kinds of factors, that is indicative of an intent to be either favorable or disfavorable to an incumbent or ... a political party.
Those objective factors, Cantero said, included the approved maps themselves (e.g., whether the new districts are compact, contiguous, and make use of existing political boundaries), and statements made at public hearings. They would not include drafts or other working documents, which are traditionally and statutorily exempt from public disclosure.
The proof is in the pudding, and the pudding is the map as drawn, Cantero told the judges, noting that it was on the basis of just such objective factors that the Florida Supreme Court rejected the Legislature's initial Senate map before approving a subsequent revision.
The judges seemed to favor the Legislature's side of the argument.
What troubles me here is that, at the end of the day, 61 members of the House and 21 members of the Senate had to approve these maps. ... You arent going to know the intent from talking to one person, Wetherell told John Devaney, a lawyer for the citizen plaintiffs. Other than just the sport of it, whats the point? ... It just seems to me that where you're asking us to go is down a slippery slope, where no court has ever gone.
Makar echoed those concerns.
Shouldn't we interpret the Constitution's provisions to avoid these sorts of contradictions and conflicts? he asked Devaney. The people who passed these provisions ... could have said 'We hereby eliminate the legislative privilege' to allow this sort of litigation, but they didn't.
Indeed, Cantero himself suggested that if the intended effect of the 2010 amendments was to overturn such long-established privileges, they might have fallen afoul of the Florida Constitution's single subject requirement for citizen-initiated amendments.
Devaney replied that the inability to depose legislators for testimony would really take the guts out of the Fair Districts amendments.
It is not known when the district court will rule on this issue. Both sides could appeal that ruling to the Florida Supreme Court.
Though Tuesday's hearing concerned the suit against the congressional map, the court's ruling would presumably apply to the separate action challenging the Senate maps as well. Both suits are being heard by Judge Terry Lewis of the 2nd Judicial Circuit Court of Florida; plaintiffs allege that the 2012 maps reflect gerrymandering in favor of Republican candidates and incumbents, and unfairly disadvantage racial minorities.
Sunshine State News reported last week that court documents show that during the redistricting process the Florida Democratic Party -- along with several Democratic state legislators and U.S. congressmen -- tried to gerrymander districts in favor of their party'scandidatesand incumbents.
Reach Eric Giunta at egiunta@sunshinestatenews.com or at (954) 235-9116.
