First real test of Florida’s anti-Fair Districts lawsuit comes tomorrow

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Thursday, September 08, 2011 at 3:36 pm | More from The Florida Independent

The parties involved in the lawsuit to block one of Florida’s “Fair Districts” amendments from taking effect gather in a Miami courtroom at 10 a.m. tomorrow to present their arguments. At issue: Whether the U.S. Constitution forbids Florida voters from restricting how the state Legislature chooses to redraw congressional districts.

Friday’s hearing will feature the first oral arguments in the case brought by Reps. Corrine Brown, D-Jacksonville, and Mario Diaz-Balart, R-Miami, against Amendment 6, which 63 percent of Florida voters approved last year. Amendment 6 is one of the two so-called “Fair Districts” measures that supporters say will limit the Florida Legislature’s ability to draw district lines that favor incumbents and ensure one-party control.

According to attorney Stephen Cody, who is representing Brown and Diaz-Balart, the U.S. Constitution grants the state Legislature the authority to draw districts however it likes. “The U.S. Constitution delegates to the state Legislature the power,” Cody says, “and what the state constitution did was to come in and say, in effect, ‘The U.S. Constitution gives the Legislature complete discretion. We’re going to take away some of that discretion.’”

In an April filing asking U.S. District Judge Ursula Ungaro to invalidate Amendment 6, Cody and lawyers representing the Florida House of Representatives (which is spending taxpayer dollars to fight Amendment 6) argued that the U.S. Constitution says that “election measures” are valid “only when passed ‘as part of the legislative process.’”

The U.S. Constitution “provides that the ‘Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,’ subject to the authority of the United States Congress to override or supplement such laws,” they write. “This duty includes the authority to draw congressional districts.”

They continue:

This case involves a challenge to the constitutionality of substantive rules limiting the exercise of the Florida Legislature’s authority under the Elections Clause to draw congressional districts. The rules at issue were adopted wholly outside of the state legislative process pursuant to an initiative opposed by the Legislature. The question presented here is whether the United States Constitution permits the imposition of substantive rules governing federal elections through measures enacted beyond the legislative process—and over the Legislature’s objection. [Emphasis added.]

Cody says redistricting rules “can’t come from outside the Legislature.” “Regardless of how many people vote for it, you can’t do an end run around the Constitution,” he says.

That interpretation differs from one offered by Harry Thomas, the attorney representing Florida Secretary of State Kurt Browning, named as the defendant in the case.

In a May filing, he asked the court to throw out Brown and Diaz-Balart’s lawsuit, arguing that “the state legislature is subject to the state constitution’s definition of its legislative power.” According to Thomas’ filing, the U.S. Constitution may delegate the authority to redistrict to the Legislature, but lawmakers must still abide by rules established by the state constitution — rules that now include Amendment 6.

According to Cody, the plaintiffs and the defendants will each have 30 minutes to present their arguments tomorrow, but the case is unlikely to end there. Regardless of how the judge rules, Cody says, he believes “someone will appeal.”

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