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No equal protection in redistricting

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By MARTIN DYCKMAN, Times Associate Editor

© St. Petersburg Times
published April 14, 2002

TALLAHASSEE -- Al Gore's decision to seek recounts in only those Florida counties where he expected to pick up the most votes turned out to be one of history's great tactical blunders. By stages, it helped George Bush's lawyers to claim, and the U.S. Supreme Court to agree, that applying different counting standards from place to place would violate the Constitution's guarantee of equal protection of the laws.

It is hard to argue otherwise, as even the four dissenting justices conceded. The scandalous part was the majority's conclusion that no time remained for the Florida Supreme Court to fix the problem.

But right or wrong, fair or unfair, honest or not, Bush vs. Gore is the law -- all of it, including this:

"Florida's basic command for the count of legally cast votes is to consider the "intent of the voter. . . .' This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application."

To their dismay, the Republicans can read those words again in the brief in which Attorney General Bob Butterworth is asking the Florida Supreme Court to reject the Legislature's House and Senate redistricting plans. Bush vs. Gore is, in fact, the crux of his argument: For having failed to document any objective standards other than equal population, the Legislature is unable to explain or defend assorted grotesqueries in the new maps.

Butterworth points to the Orlando area (see map) where part of District 9 looks like a hole in an extremely abstract doughnut labeled District 19, and to District 27, which snakes across the south part of the state.

"Is the district valid?," Butterworth asks. "The answer would depend, in large part, on the justification for drawing the district in this manner. Perhaps legislative representatives can describe why the district was drawn in this manner, and such justification may be "unobjectionable as an abstract proposition and a starting principle. . . . The problem inheres in the absence of specific standards to ensure its equal application.' "

Connoisseurs of irony, regardless of party, can appreciate that, or the fact that Barry Richard, lead counsel for George Bush two years ago, will be arguing on behalf of the Senate why the logic of Bush vs. Gore is irrelevant now.

Among the standards conspicuous by their absence are those that civic leaders everywhere had urged the Legislature to apply: Keep districts compact and split counties and cities as little as possible. "Communities of interest" are a staple argument in districting litigation.

Volusia County ought to have been considered one of those. With nearly 444,000 people, it could have had a Senate district of its own plus part of another. Instead, it's split four ways in the new plan; none of those districts is entirely within the county. As every adult in Tallahassee knew, the purpose was to ensure that Democratic-leaning Volusia never again elects a Democratic senator.

Similar artistry is apparent in the Orlando area gerrymanders. District 19, based on retiring Democrat Buddy Dyer's present District 14, becomes slightly more Democratic and nearly twice as Hispanic (24 percent). Coupled with a substantial but slightly reduced black population (29 percent), the Republicans might say they have created another majority-minority district. In so doing, however, they made District 9 even safer for themselves.

Such tactics, aided by a super-sophisticated computer program called FREDS, played out wherever it suited the Republicans, with no publicly plausible explanation why they respected some communities of interest and not others. Though still the minority party in registration, the GOP may have added at least nine seats to its 77-seat majority in the 120-member House. They sundered Alachua County into four districts and split the relatively liberal city of Gainesville three ways.

They did talk about respecting two standards: population equality and minority voting strength. Their main guiding light, however, was one that has to be kept under a bushel. A strategy of hurting Democrats might be hard to square with the concept of equal protection enshrined in Bush vs. Gore.

Nothing in the state or federal constitutions stipulates any standards, but the U.S. Supreme Court has stated that oddly-shaped districts are automatically suspect -- that "reapportionment is one area in which appearances do matter." That's especially true if race appears to be a primary factor. Recalling Justice Potter Stewart's famous remark on pornography, that he couldn't define it but knew it when he saw it, the districting precedents provide no bright-line test for what kinds of maps the court will approve. However, they all predate Bush vs. Gore.

On Jan. 16, 1992, when the Democrats still held a narrow edge in the state Senate, Republican senators issued a press release deploring the Reapportionment Committee's refusal to adopt standards.

At a caucus, said the press release, "the Republicans agreed that the use of neutral criteria will more likely result in redistricting plans that comply with federal and state constitutions and with the Voting Rights Act of 1965. Moreover, the Republicans agreed that the use of neutral criteria will help deter political gerrymandering thereby insuring truly competitive elections between political parties, and will boost public confidence in the reapportionment process."

The statement committed the Republican senators to 11 standards, among them: Avoid "unnecessary division of counties and cities." Keep districts truly contiguous, with no funny stuff like the present Orlando map. No deliberate dilution of the voting strength of "any person, group of persons, or members of any political party." Attempt to "preserve existing communities of interest."

That was then, of course, and now is now. It will be engaging to hear the Republicans explain the difference to the court.

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