$11 million later, Florida lawmakers are still trying to fix botched voting maps

Mary Ellen Klas and Steve Bosquet | Tampa Bay Times | 10/16/2015

TALLAHASSEE —In what may be one of the most expensive do-overs in Florida political history, lawmakers return Monday in special session to complete something they failed to get right three years ago — the realignment of state Senate district boundaries to accommodate population growth.

The three-week redistricting session comes after legislators admitted in July that they violated the new anti-gerrymandering provisions of the Florida Constitution when they drew the Senate map to benefit incumbents and political parties in 2012 as part of the state's once-a-decade reapportionment process. This time they will try again to revise the map and then will seek court approval for the final plan.

Lawmakers have already tried and failed three times to redo the congressional map and, after four special sessions and three years of legal battles, the cost to taxpayers of their botched exercise will have exceeded $11 million when this session is over.

While the outcome remains uncertain, what is likely is that by this time next year, supervisors of elections will have adjusted their precinct maps for the third time in four years, and many incumbents will no longer be running in safe seats.

"Whether they pick a map or feed numbers into a computer, you really could have a situation where it's incumbent versus incumbent," said Screven Watson, a Democratic political consultant in Tallahassee. "In the political Game of Thrones, that's the White Winter."

Incumbents vs. incumbents?

Many of the six draft maps released last week by House and Senate staff pit incumbents against each other — and make it possible that Republicans could lose from one to six seats. Voters in every part of the state — except District 3 in North Florida — would face changes under most of the proposed maps.

Contributing to the angst is the bitter infighting within the Senate GOP caucus over the election of the next Senate president. Sen. Joe Negron, R-Stuart, is pitted against Sen. Jack Latvala, R-Clearwater, over who will control the Senate in 2016 and the vote among 26 Republicans is still so close that the victor could depend on which incumbent senators wind up in the same districts once the map is done.

In addition, the Florida House, which like the Senate is controlled by Republicans, is feuding with the Senate and reluctantly agreed to settle the lawsuit that led to the redistricting session. Tensions could lead to another stalemate like the one that ended the August special session on the congressional map without an agreement.

"We have nothing to compare it to. This is unprecedented," said Sen. Aaron Bean, R-Fernandina Beach. "The scariest thing is the potential to run against your good friend."

For Bean, redistricting could mean he is forced to run against a member of his own family. Bean and Sen. Rob Bradley, R-Fleming Island, are brothers-in-law (Bean's wife, Abby, is Bradley's sister). Their Senate districts border each other as Bean represents Duval County and Bradley represents Clay County directly to the south.

Drawing a Senate map is "infinitely more difficult," than drawing the congressional map, said Sen. Tom Lee, R-Brandon. "You have 40 self-interested actors now, all with seats at the table, all with leadership ambitions, all with their political careers on the line."

House leaders said last week they will not pass a map until it is approved by the Senate. But Rep. Richard Corcoran, R-Land O'Lakes, said he is optimistic.

"Can they get enough votes to pass a map and not tinker with it in a way the courts won't accept?'' he asked. "If they do that, I can see it coming to a good resolution."

While the House is expected to reject any map that veers from the staff-drawn versions which they believe are more likely to win court approval, a growing number of senators won't accept the staff maps because they believe their input is essential.

"I'm convinced that we as members do need to draw this and I don't see the base maps as necessary," said Sen. Oscar Braynon, a Miami Gardens Democrat who has drafted his own map. "We are going to change these maps tremendously because I don't think any one of those maps has 21 people happy."

If stalemate is the outcome, the court will become Florida's map drawer, as it has become with the congressional map now awaiting approval by the Florida Supreme Court.

Transparency mocked

This isn't the first time lawmakers have been called back to redraw a Senate map. The Supreme Court ordered revisions after its review of the map in 2012.

The challengers, a coalition of the League of Women Voters, Florida Common Cause and a group of Democrat-leaning voters, then sued the Legislature alleging that lawmakers drew districts that favored incumbents, Republican candidates, and intentionally diminished the ability of minorities to elect representatives of their choice.

They attempted to question legislators, staff members and their political consultants and get access to their emails and text messages. But lawyers for the House and Senate claimed that legislators should be exempt from that kind of scrutiny or it could have a "chilling effect" on the reapportionment process.

In a 5-2 ruling, the Florida Supreme Court rejected that argument and, for the first time, acknowledged that while legislative privilege does exist in Florida, it is not absolute and ordered them to turn over thousands of records.

But legislators already had covered their tracks. They destroyed draft maps and communications, saying it was routine document destruction. The plaintiffs were forced to subpoena the emails and documents of political operatives in an effort to determine if they had improperly influenced the final maps.

Senate President Don Gaetz, R-Niceville testified in the congressional trial that he didn't give any maps to political operatives, but he did confirm that he and House Speaker Will Weatherford met out of the public eye to work out differences in the redistricting maps.

It wasn't really a closed meeting, Gaetz added. "The door was open."

"It was an extremely open and transparent process," Weatherford told reporters, also after testifying in the congressional redistricting trial.

But the trial court had its doubts. It concluded that a separate "shadow redistricting" process by political consultants had influenced the drawing of the legislative maps, making "a mockery of the Legislature's proclaimed transparent and open process of redistricting."

Constitutional violations

In its July opinion invalidating the congressional map, the Florida Supreme Court said that the e-mails and maps proved the improper involvement of GOP political consultants, including Rich Heffley, Pat Bainter and Marc Reichelderfer.

But if the record in the congressional case suggested strong involvement of the Republican consultants in influencing the maps, the Senate case proved it.

The challengers found at least nine draft Senate maps that they believed were drawn by political consultants but submitted to the Legislature under the names of others. They also found that the Republican political operatives had copies of Senate maps weeks before they were made available to members of the Senate Committee on Reapportionment.

"Vital information about the process was flowing right to the political operatives where they could benefit their clients — the legislators," said David King, lead attorney for the challengers. "What we're dealing with here was a conspiracy, and the conspiracy was going both ways."

The conclusion, King said, "while the Legislature opposed the Fair Districts standards and tried to get them declared unconstitutional, when none of those things worked, they tried to continue in a way with business as usual without following those standards."

In the face of this evidence, the Senate leaders conceded that the 2012 map violated the Fair District ban on intentionally benefiting political parties and incumbents. Rather than continue to trial, they agreed to redraw the maps.

The court urged the Legislature "to consider making all decisions on the redrawn map in public view" and to "conduct itself in a manner that will fulfill the purpose of the Fair Districts Amendments, including the need for transparency and neutrality in drawing the state's congressional districts."

Gaetz concedes now, in hindsight and with knowledge of the courts' interpretation of the Fair Districts amendments, that the redistricting process was too "inclusive" because it allowed partisans from both parties to have input.

"Obviously, if I had known then what I know now, we would have had a hermetically sealed process and not allowed Democrat or Republican senators to offer criticisms or point out flaws in maps that had been submitted," he said.

To avoid repeating their past, House and Senate leaders ordered three staff redistricting analysts and their lawyers to be sequestered in a room — with no input or contact with legislators or political operatives — to draw a set of starter maps.

"Our main focus is to make sure we create a process a sterile as possible," said Rep. Jose Oliva, R-Miami Lakes, the House redistricting chairman.

Upset election

Depending on how many districts are changed from the current plan will determine how many of the 40 Senate seats will be up for re-election in 2016.

Then there's the added complication of the odd-and-even numbering scheme for Senate districts. Because senators serve staggered terms, some senators will get two extra years for a total of 10 years under the new numbering scheme.

Twenty Senate seats would be filled for two-year terms in 2016 and 20 would be filled for four-year terms.

Because voter turnout is dramatically higher in Florida in a presidential election such as 2016 than in an off-year or mid-term election such as 2018, the upset election cycle offers new opportunities, and new peril.

If Republicans lose just three of their 26 districts, "it changes the dynamics of the Senate," said Watson,the Democratic political consultant.

Now, Senate President Andy Gardiner, R-Orlando, who was Senate Republican Leader when the first maps were adopted, says the new amendments have required legislators to adjust to "a whole new world." But, despite the cost and the uncertainty, he has no regrets.

"My hope is we can get it done," Gardiner added. "Time will tell. It's going to be a very interesting time." 


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