In politics of redistricting, is turnabout fair play?

TROXLER E-mail: Click here Archive

© St. Petersburg Times
published April 19, 2002

For the first time in our lives, the Republican Party is in charge of drawing Florida's political districts for the next 10 years. That is because Republicans have the most votes in our Legislature.

The maps they have drawn for Congress, and for the Legislature itself, are a crazy-quilt. Some places are divided willy-nilly. Some district outlines look like spilled paint. You will not be shocked to learn that some districts were drawn to help Republican candidates.

In short, the Republicans have done it the same way the Democrats used to do it.

How the Democrats are squealing! They act as though their own past never existed. One is tempted to invoke against them the Law of Tough Noogies: If they don't like it, they ought to win more elections.

But there is a new twist. The attorney general of Florida, Bob Butterworth, who is a Democrat, is asking the Florida Supreme Court to throw out the maps for the Legislature. (A separate challenge to the map for Congress is under way in federal court.)

Butterworth is baldly proposing that the state court create new, tougher rules. He is, in short, asking for a landmark case. Does he have a chance? Sure. The court has plenty of wiggle room to buy it, if it feels like wiggling.

Meanwhile, the Republican governor and three former speakers of the House, two of them Democrats, have joined the case on the side of protecting the Legislature's power. Several interested communities also have entered the fight hoping to get better districts for themselves.

Here is the nub of it:

What limits can be imposed on the Legislature's power to draw political districts?

There are four limits for sure, under federal law and past court rulings:

All districts for the same kind of office (Congress, state House, state Senate) must have close to the same population. This is called the doctrine of "one man, one vote."

The Legislature cannot draw districts intended to keep minorities from getting elected. But neither can it go far in the opposite direction and use race as the main factor.

The Legislature cannot stick separate, disconnected places into the same district. Our state Constitution says that districts have to be "contiguous, overlapping or identical."

The Legislature cannot go too far -- too far, I said -- in "gerrymandering," or drawing districts that obliterate and silence opponents. But the bar is set very high. The mere fact that one side might gain a political advantage is not supposed to be enough to matter.

Okay. Everybody agrees that those four exist. But are there any other limits?

The Legislature says absolutely not. Once those conditions are met, the drawing of political districts is -- well, it's political. It is the pure province of the elected Legislature. It is none of the courts' business.

In fact, that is exactly how the Florida Supreme Court has ruled in past cases.

In past cases.

But the Democratic attorney general says that times have changed. In an amazing irony, he cites the U.S. Supreme Court's ruling in the case of Bush vs. Gore. You might remember it. The Supremes halted any further recount of Florida's votes because there was no "clear, objective standard" for making sure all Floridians had equal protection under the law.

Butterworth argues the same clear, objective standards should apply to map-drawing. How can anybody evaluate a weirdly drawn district, if we don't know what standards the Legislature used to produce it?

As for anything being the sole province of the Legislature -- well, there are plenty of times that acts of the Legislature are tested against court-created, court-imposed rules.

That's especially true when it comes to basic constitutional rights. Time and again, courts have required legislatures to prove a "compelling state interest," or to meet a high standard of scrutiny. And no constitutional right is more basic than voting.

Am I suggesting that the Florida Supreme Court would enjoy sticking it to the Republican Party of Florida by using Bush vs. Gore, the very ruling with which it got spanked by the U.S. Supreme Court, the same case that made George W. Bush president of the United States? No, no, of course not.

-- You can reach Howard Troxler at (727) 893-8505 or at troxler@sptimes.com.

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