The court's duty
Florida's Constitution assigns the governor only one official duty with respect to how the Legislature redistricts itself every 10 years. That's to call lawmakers back into session if they fail to do the job or the Supreme Court rules that they didn't get it right. Nonetheless, Jeb Bush has rushed in where no governor dared tread before. He contends in a formal brief that the court would commit "an unprecedented act of judicial imperialism" by rejecting the current plan as Attorney General Bob Butterworth recommends. None of the Legislature's briefs is that shrill.
The governor's document asserts that Bush's "sole interest . . . is to defend the constitutional separation of powers principle." As the House and Senate are quite capable of defending that for themselves, suspicion occurs that Bush may have something else in mind, such as sending a thinly veiled threat to the court in advance of Tuesday's oral arguments. He will soon have one appointment to make -- a successor to retiring Justice Major B. Harding -- and if he is re-elected, he will have at least one more. Of course a governor has other avenues, including the budget, for making displeasure felt. There are also certain legislators who would welcome his support for constitutional amendments aimed at making the judiciary a subservient branch of government.
The governor's real interest in this matter is the same as that of the House and Senate Republican leadership: increasing the already sizeable majority of districts held by their party. It's essentially what the Democrats tried to do, unsuccessfully, when they still held power 10 years ago. But if Gov. Lawton Chiles, a Democrat, was tempted to weigh in on the Legislature's side when the court took up that redistricting, he resisted the urge and stayed out of it. A truly strict fidelity to separation of powers ought to have commended Bush to do the same.
To hear him and the Legislature, the court should just rubber-stamp the House and Senate plans despite the all-too-obvious political gerrymandering. To an extent, that argument has history on its side. But not altogether. In 1982, the court sided with the House against the Senate in a decision requiring all senators, even those who had served only half their terms, to run again in their redrawn districts. In 1992, the court rewrote the Senate plan to meet the U.S. Justice Department's demand under the Voting Rights Act for a minority district in the Tampa Bay area.
In fact, the Florida Constitution is remarkably silent on what standards, if any, the court should apply to a redistricting plan. It specifies only that the districts be consecutively numbered, and that the court must abide by the U.S. Constitution, which means one person, one vote. Everything else is left to the court's discretion. This was intentional on the part of the drafters of the 1968 Constitution. They knew from bitter experience that the Legislature's motives would be political; they trusted the court to be fair.
They were brought to that view by the persistent refusal of the Legislature, for nearly a decade beginning in 1955, to reform the most malapportioned districting in the nation. Fewer than 14 percent of the people could elect a majority of the Senate; it took only 18 percent to elect a majority of the House. Federal courts finally put an end to that.
"I hope that . . . we never have to go into a court-ordered apportionment again," declared Sen. John E. Mathews Jr. of Jacksonville during a 1966 debate on the proposed new Constitution. ". . . But if we continue, then I want our own state court to do it, rather than a federal district court."
The one absolute standard, as enunciated by the U.S. Supreme Court, is population equality. One person, one vote. But legislators can easily frustrate that by designing districts to be noncompetitive, as so many of Florida's are. What's the use of voting, many citizens wonder, when the boundaries predetermine which party will win? This problem, which is almost as old as self-government, could best be kept in check by entrusting redistricting to independent commissions, as Britain and some American states do. Until that day arrives, the people of Florida have no one but their state Supreme Court to ensure that their votes will be worth counting. That the court did not quite live up to that task in 1972, 1982 or 1992 is no excuse to shirk it yet again.
The justices cannot be happy with this burden, which has never weighed so heavily as it seems to now. But it comes with the oath they all took.
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