Two Florida Republican Party officials have filed a federal lawsuit to block the state’s anti-gerrymandering constitutional clauses, arguing the provisions limit First Amendment speech and amount to “thought policing.”
The lawsuit, filed Tuesday night in the conservative-leaning Pensacola division of the Northern District of Florida, comes less than a week before the start of a special legislative session to redraw some of the state’s 27 congressional districts.
Citing email correspondence from GOP consultants, the Florida Supreme Court ruled last month that at least eight congressional districts were improperly drawn and violated the 2010 voter-approved “Fair Districts” amendments that prohibited lawmakers from intentionally drawing political boundaries to favor or disfavored political parties or incumbents.
But Pasco County Republican Party chairman Randy Maggard and his Walton County counterpart, Tim Norris, say the amendments themselves infringe on their right to free speech. They also say the court’s interpretation of the law ultimately violates their Fourteenth Amendment due process rights because members of political parties are unfairly limited in speaking with elected representatives about redistricting in the future.
“It is one thing for Florida’s Constitution to require that elected representatives elected under the banner of a political party create districts that may not ‘be drawn with the intent to favor or disfavor a political party of an incumbent,’ however quixotic that requirement may be, but it is another thing altogether to assert that such a requirement can only be enforced by prohibiting certain individuals’ speech about the possible political consequences of redistricting decisions,” they argue in the lawsuit.
The lawsuit names Florida Secretary of State Ken Detzner as a defendant. Detzner’s office is reviewing the suit.
The coalition of liberal-leaning voting-rights groups that helped put the Fair Districts amendments on the ballot, and then sued over Florida’s maps, are expected to intervene in the suit.
The lawsuit was drafted by Dan Nordby, of Shutts & Bowen in Tallahassee, and Virginia attorney Jason Torchinsky. Nordby separately represents the Republican Party of Florida and who once worked in the secretary of state’s office, where he defended the citizens’ rights to pass the amendment that governs congressional redistricting.
Nordby says that, in this case, he and his clients are challenging the substance of the amendments and how they’re applied. The injunction they seek would not stop the upcoming legislative session, scheduled to start on August 10.
But if the plaintiffs prevail, it could affect the Legislature’s October special session to redraw Florida state Senate districts. In that case, the state Senate admitted officials gerrymandered but, in public statements, officials said the admission was based on new standards created by the court.
Republicans have fought the Fair Districts amendments from the outset, starting with the group’s effort to get the measures–one concerning legislative seats, the other concerning Congress — onto the ballot. After the amendments passed, lawmakers drew new districts in 2011. But the state Senate and congressional maps were soon declared unconstitutional after the Fair Districts groups sued.
In the lawsuits, Fair Districts unearthed email correspondence from a handful of Republican consultants and some legislative staff that proved key to making their case.
“This group of Republican political consultants or operatives did in fact conspire to manipulate and influence the redistricting process,” Circuit Judge Terry Lewis wrote in an opinion, later cited word for word, and underlined for emphasis in parts, by the Florida Supreme Court in its July 9 ruling.
The operatives, Lewis wrote, “accomplished this by writing scripts for and organizing groups of people to attend the public hearings to advocate for adoption of certain components or characteristics in the maps, and by submitting maps and partial maps through the public process, all with the intention of obtaining enacted maps for the State House and Senate and for Congress that would favor the Republican Party.”
“They made a mockery of the Legislature’s proclaimed transparent and open process of redistricting by doing all of this in the shadow of that process,” Lewis
wrote, “utilizing the access it gave them to the decision makers, but going to great lengths to conceal from the public their plan and their participation in it.”
The Supreme Court in its 5-2 ruling went further than Lewis by declaring multiple congressional districts unconstitutional. The court said the evidence of the emails and private meetings between Republicans and officials, when “collectively” viewed, indicate partisan intent.
In reaction, Florida legislative leaders called for next week’s legislative session and they issued a series of instructions that asks lawmakers to “avoid all communications that reflect or might be construed to reflect an intent to favor or disfavor a political party or an incumbent.”
This, according to Nordby and his clients, effectively precludes any politically minded person from talking to their lawmakers about redistricting simply because of their party affiliation. The suit says the amendments don’t specify what can or can’t be said by whom or when. Because the clauses aren’t clear about this and don’t offer a compelling government reason to limit such speech, the suit argues the amendments are unconstitutional under a “void-for-vagueness” doctrine.
“If Plaintiffs dare to speak about their partisan concerns about the map, the exact object of their concerns must be rejected by the Legislature in order to comply with the Challenged Clauses,” the suit says. “Put another way, if the Plaintiffs attempt to exercise their right to petition the Legislature about their views on the partisan impact of the map, the Florida Supreme Court requires their views to be disregarded and rejected.”
Nordby also cast doubt on the amount of evidence the Florida Supreme Court used in ordering a redraw of some districts, specifically the 14th and 13th congressional districts.
In those two districts, the court singled out an email exchange between two Republican political consultants in which one complained that “Tampa is far from perfect” under a configuration of the 14th district that was almost completely contained in Hillsborough County. Lawmakers eventually settled on a 14th district configuration that, like its 2002 predecessor, crossed the water and scooped out a heavily Democratic portion of St. Petersburg on the Southeastern corner of Pinellas County – thereby making the 13th district less Democratic-leaning.
After the Supreme Court demanded that this corner of St. Petersburg be added back to the 13th district, former Gov. Charlie Crist announced his interest in seeking the newly drawn seat because it would include his residence. At the same time, Rep. David Jolly, who had been considering a Senate bid anyway, decided to run statewide.
The suit argues that regardless of what the consultants wanted in the two districts, the court case never clearly showed that it was lawmakers who drew the districts with the “intent” to gerrymander, and that consultants, lobbyists and party officials shouldn’t be blocked from meeting with legislators.
“The Challenged Clauses have resulted in a government attempt to eliminate all speech by persons who might convey an impermissibly ‘partisan thought’ to a legislator or legislative staffer that could subsequently impact the redistricting process,” the suit says. “The U.S. Supreme Court has repeatedly rejected precisely this type of government ‘thought policing.’”