In my legal career, I’ve suffered two painful defeats litigating against the Republican political machine of Florida. The first was a case called Bush v. Gore. The second—less famous, but just as bitter—came two years later, in 2002, when I worked on a legal challenge to Florida’s absurdly partisan redistricting plan, only to see our claims rejected by both the state and federal courts.
So last week’s court ruling overturning gerrymandered congressional districts in Florida gave me a serious case of déjà vu for several reasons. First, its author was Leon County Circuit Court Judge Terry Lewis—a major figure in the post-2000 Florida election litigation miasma, who ultimately wound up overseeing the statewide hand recount of ballots that the U.S. Supreme Court halted in its infamous 5–4 order. Second, the ruling represented a long overdue vindication of our 2002 claim that the Florida Legislature had abused its power in entrenching its control over the state through redistricting.
While much of the coverage of Lewis’ opinion has focused on the Florida legislative “chicanery” that it laid bare, a more substantial question is this: Why did this case strike down a hyper-partisan districting plan, when virtually every other such court challenge, in virtually every other state, has failed over the past three decades? How was the widespread bastardization that allows “representatives to pick their voters, instead of voters picking their representatives” finally checked by a court decision?
The key, as Lewis’ opinion makes clear, was the 2010 addition to the Florida Constitution known as the “Fair District” amendments. The Fair District amendments provide (in part):
No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent … districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.
It was this language that Lewis relied upon to strike down two specific congressional districts crafted by the Florida Legislature (while upholding several others) due to the way in which those misshaped districts were drawn under the thinly disguised guidance of political operatives and consultants.
The Fair District amendments were added to the Florida Constitution by referendum in 2010, in a public campaign that had wide bipartisan and nonpartisan support—but relied most heavily on substantial help from progressive donors, groups, and labor unions. Liberal groups backed the Fair District amendment because the Florida Legislature and congressional delegation were so stacked to the right—more than two-thirds Republican in a state that is infamous for being exactly 50-50 in overall partisan preference—that they believed any fair districting would be an improvement.
Perhaps there is no political process reform that could be more beneficial but is less appreciated by progressives than redistricting reform. The comparison to that progressive cause-of-the-heart—campaign finance reform—is telling. Every day email inboxes are flooded with requests for donations and updates on efforts to overturn Citizens United or pass some sort of campaign finance reform. Last week, the Democratic-led Senate Judiciary Committee voted to overturn the case by amending the U.S. Constitution, an indication of the priority assigned to this issue.
But while I too oppose Citizens United and decry the influence of special interest money in politics, I can’t get past this mathematical reality: Almost 90 percent of the House Republicans who are fomenting for gridlock, impeachment, and lawsuits against President Obama (instead of passing legislation) will win re-election in 2014—not because of a check written by the Koch brothers—but because they are in all-but-unopposed, one-party districts. Heavily partisan districts not only protect incumbents, they push the Republican majority further to the right: Just ask Rep. Eric Cantor what he thinks about his gerrymandered, post-2010, heavily Republican-conservative district … and ponder what that gerrymander in Virginia did to comprehensive immigration reform nationwide.
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