Fox can't guard district henhouse

By Nicholas Stephanopoulos | South Florida Sun Sentinel | 04/11/2011

Everyone knows that foxes shouldn't guard henhouses. Everyone, that is, except for the Florida Legislature. As the debate rages over the state's next round of redistricting, the Legislature argues that it can be trusted to draw the new lines fairly. The Legislature also insists that no one else — not even the people — can tell it how to go about its district-drawing business.

Some background: In November, Florida's voters approved two initiatives aimed at stopping gerrymandering. The measures bar politicians from trying to "favor or disfavor a political party or an incumbent" when they draw district lines. Not surprisingly, the Legislature hates the new rules. Its leaders tried various shenanigans to defeat the initiatives, and the House has now joined a lawsuit claiming that the measures are illegal.

The suit focuses on the Constitution's Elections Clause, which states that electoral rules "shall be prescribed in each State by the Legislature thereof." According to the Legislature, this language means that it, and only it, has the power to design congressional districts. Any interference with its authority — even a ballot measure endorsed by the people themselves — is unlawful.

This is a bad argument that, if accepted, would entrench gerrymanders across the country. Starting with the merits, the Supreme Court rejected a nearly identical challenge almost a century ago. In 1915, Ohio's general assembly passed a district plan that the public then voted down in a referendum. The Court upheld the referendum because the Elections Clause merely authorizes the state political process as a whole to regulate redistricting.

The same logic applies to the Florida initiatives. Ballot measures are explicitly sanctioned by the Florida Constitution, and so can be used to create new electoral rules. The Elections Clause doesn't distinguish between regular legislative action and policies enacted in other ways.

The awful implications of the Legislature's position are also worth noting. For one thing, if only legislatures could draw district lines, then governors and courts would be barred from taking any part in redistricting. The separation of powers would be erased in the electoral arena.

Most insidiously, the Legislature's position would bar efforts to reform redistricting via direct democracy. Since politicians have little incentive to shake up the status quo, measures placed directly on the ballot are often the only way that the public can fight gerrymandering. If the Legislature has its way, though, the expressed will of the people would be just another infringement of its limitless power.

The suit against the initiatives, then, is deeply flawed in terms of both law and policy. What it says about the Legislature's mindset is also disturbing. The whole point of the measures was to convey the public's dislike of politics as usual in Tallahassee. But the Legislature seems not to have gotten the message.

Nicholas Stephanopoulos is an academic fellow and lecturer at Columbia Law School, where he specializes in election law.

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