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Legislature: Fair Districts Amendment 'Unenforceable'

Florida Division of Elections

  Lawyers for the Legislature told the Florida Supreme Court in a brief filed late Friday that part of a state ban on political gerrymandering violates the U.S. Constitution.

The filing is the latest chapter in a long-running battle over whether lawmakers rigged congressional districts during the 2012 redistricting process to benefit Republicans. Voting-rights organizations argue that the maps were influenced by politics, contrary to an amendment to the Florida Constitution approved by voters in 2010.

Those voting-rights groups, including the League of Women Voters of Florida, are appealing a decision by Leon County Circuit Judge Terry Lewis to approve a revised map the Legislature passed over the summer to address two districts Lewis ruled were flawed.

But in the Legislature's brief filed Friday, attorneys for state lawmakers said the "Fair Districts" amendment dealing with congressional redistricting --- another amendment dealt with state House and Senate maps --- runs afoul of the U.S. Constitution because it was approved by voters. The U.S. Constitution gives legislatures the right to set "(t)he times, places and manner of holding elections for Senators and Representatives."

That, the lawyers say, would include the boundaries of the districts.

"Amendment 6 purports to regulate federal elections, but was not enacted by the Legislature. Amendment 6, therefore, was not constitutionally enacted and is unenforceable," attorneys wrote.

The court papers do not challenge Amendment 5, which included similar language barring gerrymandering in legislative maps.

Similar claims have already been turned away by the federal courts. In early 2012, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta rejected an effort by Republican Congressman Mario Diaz-Balart and Democratic Congresswoman Corrine Brown to have the amendment struck down.

"All Amendment Six does is require the Legislature to account for some particular standards when conducting the complex task of drawing congressional district lines," the federal appeals-court judges wrote. "States can and routinely do consider the very same factors when redistricting."

In Friday's filing, the Legislature's lawyers said the federal court got it wrong in the earlier case, Brown v. Secretary of State of Florida, and the Florida Supreme Court was not bound by that decision.

"The decision in Brown effectively reads the words 'by the Legislature' out of the Constitution," the brief says.

The filing also defends on a case-by-case basis the districts specifically challenged by the voting-rights groups. And it pushes back on arguments that a secret effort by Republican political consultants to funnel maps through the public into the legislative process proves lawmakers were involved in a conspiracy to rig the districts.

"There is no evidence in the record that any operative ever provided a map to a legislator or staff member," the lawyers wrote. "There is no evidence that any operative sat together with a legislator or staff member to draw a district, or that any operative advised a legislator or staff member how districts should be drawn. Email communications among the operatives do not establish an unlawful concert with the Legislature."