Case: Florida House of Representatives v. League of Women Voters

Case No.: SC13-252

Date: July 11, 2013

Case Type: Government, constitutional law

Court: Florida Supreme Court

Author of majority opinion: Justice Barbara J. Pariente

Author of concurring opinion: Justice James E.C. Perry

Author of dissenting opinion: Justice Charles T. Canady

Lawyers for petitioners: Raoul G. Cantero, Jason N. Zakia and Jesse L. Green, White & Case, Miami; George T. Levesque, General Counsel's Office, Florida Senate, Tallahassee; Charles T. Wells, George N. Meros Jr., Jason L. Unger and Andy Bardos, GrayRobinson, Tallahassee; Miguel A. DeGrandy, Coral Gables; and Daniel E. Nordby, General Counsel's Office, Florida House, Tallahassee

Lawyers for respondents: Gerald E. Greenberg and Adam M. Schachter, Gelber Schachter & Greenberg, Miami; Richard Burton Bush, Bush & Augspurger, Tallahassee; Michael B. DeSanctis, Jenner & Block, Washington; J. Gerald Hebert, Alexandria, Virginia; and J. Andrew Atkinson and Ashley E. Davis, General Counsel's Office, State Department, Tallahassee

The Florida Supreme Court added another case to its body of election law, clearing the way for a Leon circuit judge to consider a lawsuit against the Florida Legislature over its state Senate reapportionment plan.

"This is no ordinary case," said Adam M. Schachter, who represents a coalition challenging the redistricting plan as a violation of a 2010 constitutional amendment banning political gerrymandering.

The plaintiffs include the League of Women Voters of Florida, Common Cause, Coral Gables attorney Roland Sanchez-Medina Jr. and others.

Ordinarily, the Supreme Court doesn't hear cases until after trial and district courts have ruled. Usually an entire branch of government isn't a party. If a state constitutional amendment is at issue, chances are some variation of the question has been addressed.

Under Article III, Section 16 of the Florida Constitution, the Supreme Court is required to review the Legislature's plan for reapportioning legislative districts, which takes place every 10 years. The court has 30 days to declare whether the plan is valid.

The ballot initiative for what would become a new Section 21 was organized by Section 21 prohibits the Legislature from drawing a plan with the intent of favoring or disfavoring a political party or incumbent, denying or abridging the equal opportunity of racial or language minorities, in addition to requiring districts to be geographically compact.

Schachter said, "In many respects, we are sort of on the maiden voyage of litigating the Fair Districts amendments as applied to state redistricting maps."

His clients filed briefs opposing the Republican-controlled Legislature's plan. The Supreme Court found the first Senate map to be invalid because eight districts favored incumbents. The court approved the Legislature's revised plan in April 2012.

Schachter filed the complaint last September. The Legislature moved to dismiss. In a six-page order, Leon Circuit Judge Terry Lewis denied the motion. Schachter thought the case would proceed in the usual course following the ruling, but it would not.

Led by former Justice Raoul G. Cantero, the Legislature's legal team filed a petition for writ of prohibition in the Supreme Court to prevent the trial court from moving forward with the case.

The court held oral argument in May. Portraits of former justices, including Cantero, hang in the courthouse where the case was argued. He served on the court from 2002 to 2008. He joined after the court decided a case challenging the 2002 redistricting plan.

Being on the other side of the bench isn't necessarily easy for Cantero.

"Practicing before the Supreme Court, especially before my former colleagues, adds a lot of pressure. I want to make sure that I do the best job possible and that I am as prepared as possible to answer their questions," he said. "Because they knew me on the court and were familiar with my high standards as a justice, it is important to me that I always meet those standards as an advocate. I know that, if anything, they expect more from me than they do from other lawyers practicing there."

Cantero argued that the circuit court lacks subject matter jurisdiction because Supreme Court jurisdiction is exclusive. Even if the circuit court had jurisdiction, he argued the court could exercise its all writs authority in light of the court's prior declaratory orders. Finally, he contended the challenges being raised in the trial court mirrored those the Supreme Court had already considered.

In a 5-2 decision, the court denied the petition. Justice Barbara J. Pariente wrote for the majority, and Justice Charles T. Canady wrote a dissent joined by Chief Justice Ricky Polston.

Consistent with Schachter's argument, Pariente wrote, "Our facial review left open the possibility of future fact-intensive claims and did not preclude the future discovery or development of evidence, which could never have been a part of this court's limited record under our Article III, Section 16 review, that would demonstrate a violation of the standards the Florida voters enacted in 2010."

All eyes are now on the circuit court in Tallahassee.

Cantero said: "We are disappointed in the Supreme Court's decision, which will increase taxpayer expenses by requiring another round — and perhaps endless rounds — of litigation to defend a redistricting plan that the court had already approved. However, we are confident that the Senate's plan will withstand further scrutiny."

The total costs to the state for each of the 1992 and 2002 redistricting cycles averaged $13.4 million, according to the Florida Division of Elections.

Some might wonder whether it's worth it. Not Schachter.

"The public has a right to know whether their elected leaders are upholding the Constitution and today that right has been vindicated. This is an important victory for Floridians who voted overwhelmingly to change the way the Legislature draws redistricting maps. We are gratified that the Supreme Court rejected the Legislature's attempt to shield itself from having to defend its map in court. We look forward now to proving our claims that the Legislature violated the Fair Districts amendments," Schachter said.