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IN THE SUPREME COURT OF FLORIDA

IN RE: JOINT RESOLUTION OF LEGISLATIVE APPORTIONMENT ________________________________/

CASE NO. SC12-460

______________________________________________________ ON MANDATORY REVIEW OF A JOINT RESOLUTION OF LEGISLATIVE APPORTIONMENT

______________________________________________________ BRIEF OF THE FLORIDA SENATE _______________________________________________________ Andy Bardos Florida Bar No. 822671 Special Counsel to the President The Florida Senate 404 South Monroe Street, Suite 409 Tallahassee, Florida 32399 Telephone: (850) 487-5229 Email: bardos.andy@flsenate.gov Peter M. Dunbar Florida Bar No. 146594 Cynthia S. Tunnicliff Florida Bar No. 134939 PENNINGTON, MOORE, BELL, & DUNBAR, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Telephone: (850) 222-3533 Email: pete@penningtonlaw.com Email: cynthia@penningtonlaw.com

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WHITE & CASE LLP Raoul G. Cantero Florida Bar No. 552356 Jason N. Zakia Florida Bar No. 698121 Southeast Financial Center, Ste. 4900 200 South Biscayne Boulevard Miami, Florida 33131 Telephone: (305) 995-5290 Facsimile: (305) 358-5744 Email: raoul.cantero@whitecase.com Email: jzakia@whitecase.com Counsel for the Florida Senate


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TABLE OF CONTENTS Page TABLE OF CITATIONS ...................................................................................... iii PRELIMINARY STATEMENT .............................................................................1 STATEMENT OF THE CASE AND FACTS .........................................................3 A. Reapportionment Under the Florida Constitution .....................................3 B.

The Court‟s Interpretation of the New Standards .....................................4 1.

The Tier-One Requirements .............................................................5

2.

The Tier-Two Requirements ............................................................9

3.

The Court‟s Application of the Standards ....................................... 12

C. The Legislature‟s Revised Plan .............................................................. 12 SUMMARY OF ARGUMENT ............................................................................ 14 ARGUMENT........................................................................................................ 15 I.

THE COURT‟S SCOPE OF REVIEW SHOULD BE LIMITED TO THE REDRAWN DISTRICTS AND THE CHANGE TO THE NUMBERING SYSTEM ....................................................................... 16

II.

THE REVISED PLAN COMPLIES WITH THE COURT‟S MANDATE ........................................................................................... 21 A. The Revised Plan Complies with the Standards of Article III, Section 21 of the Florida Constitution and This Court‟s Opinion ... 21 1.

2.

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The Revised Plan Satisfies the Tier-One Requirements .......... 21 a.

The revised plan does not intentionally favor or disfavor political parties or incumbents ........................... 21

b.

The plan maintains minority voting protections ............... 30

c.

The revised plan creates contiguous districts ................... 33

The Revised Plan Satisfies the Tier-Two Requirements .......... 33 a.

The revised plan maintains small deviations from the equal population requirement .................................... 33

b.

The revised plan creates compact districts ....................... 34 i


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c. B.

C.

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The revised plan adheres to political and geographical boundaries .................................................. 37

The Revised Plan Remedies the Specific Constitutional Deficiencies This Court Identified in Eight Districts in Five Regions .............................................................................. 38 1.

Northwest Florida ................................................................... 38

2.

Northeast Florida .................................................................... 40

3.

Central Florida ........................................................................ 50

4.

Southwest Florida ................................................................... 59

5.

Southeast Florida .................................................................... 60

The Opponents‟ Objections to Districts this Court did not Invalidate are Unfounded, and Many Address Districts That are Unchanged from the Prior Plan ................................................. 65

III. THE OPPONENTS‟ ALTERNATIVE PLANS DO NOT PROVE THE INVALIDITY OF THE REVISED PLAN ....................... 83 A. A “Better” Plan Does Not Invalidate the Enacted Plan ................... 84 B.

The Coalition‟s New Alternative Plan is Intended to Favor the Democratic Party ............................................................................ 86

C.

The FDP‟s Alternative Plan is No Better ........................................ 92

CONCLUSION .................................................................................................... 94

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TABLE OF CITATIONS Page Cases Advisory Opinion to Attorney General re Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans, 938 So. 2d 501 (Fla. 2006) ............................................................................ 18 Bartlett v. Strickland, 556 U.S. 1 (2009) .......................................................................................... 67 Davis v. Bandemer, 478 U.S. 109 (1986) ...................................................................................... 30 Florida Department of Transportation v. Juliano, 801 So. 2d 101 (Fla. 2001) ...................................................................... 18, 19 Gaffney v. Cummings, 412 U.S. 735 (1973) ...................................................................................... 84 In re Apportionment Law—1972, 263 So. 2d 797 (Fla. 1972) ............................................................................ 16 In re Constitutionality of House Joint Resolution 1987, 817 So. 2d 819 (Fla. 2002) ............................................................................ 16 In re Constitutionality of Senate Joint Resolution 2G, 601 So. 2d 543 (Fla. 1992) ............................................................................ 94 In re Interrogatories by General Assembly by House Resolution No. 1020, 497 P.2d 1024 (Colo. 1972)........................................................................... 84 In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Fla. Mar. 9, 2012) ........................................... passim LULAC v. Perry, 548 U.S. 399 (2005) ...................................................................................... 67 Mayor of Cambridge v. Secretary of the Commonwealth, 765 N.E.2d 749 (Mass. 2002) ........................................................................ 85 McNeil v. Legislative Apportionment Commission, 828 A.2d 840 (N.J. 2003) .............................................................................. 19 Preisler v. Kirkpatrick, 528 S.W.2d 422 (Mo. 1975) .......................................................................... 85 MIAMI 942372 (2K)

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Snyder v. Munro, 721 P.2d 962 (Wash. 1986) ........................................................................... 19 Youngblood v. Taylor, 89 So. 2d 503 (Fla. 1956) .............................................................................. 19 Regulations 28 C.F.R. pt. 51 app. ............................................................................................. 80 Constitutional Provisions Art. III, § 16(a), Fla. Const.......................................................................... 3, 33, 84 Art. III, § 16(c), Fla. Const.......................................................................... 3, 15, 18 Art. III, § 16(e), Fla. Const.............................................................................. 15, 19 Art. III, § 16(f), Fla. Const. ................................................................................... 19 Art. III, § 21(a), Fla. Const...................................................4, 5, 7, 9, 13, 23, 33, 82 Art. III, § 21(b), Fla. Const. ........................................................ 4, 9, 10, 11, 38, 77 Art. III, § 21(c), Fla. Const......................................................................................4 Other Authorities Bill Kaczor, Democrats to Offer Florida Senate Redistricting Plan, PALM BEACH POST, Mar. 26, 2012 .................................................................................. 65 Brandon Larrabee, Senators Face Decisions on Careers, NAPLES DAILY NEWS, Mar. 23, 2012........................................................................................................ 65 Brief of the Florida Democratic Party, In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Fla. Mar. 9, 2012) (No. SC12-1) ........................................................................................................ 47 Brief of the League of Women Voters of Florida, et al., In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Fla. Mar. 9, 2012) (No. SC12-1) ............................................................. 29, 85, 86 David L. Epstein & Sharyn O‟Halloran, Trends in Minority Representation, 1974 to 2000, in THE FUTURE OF THE VOTING RIGHTS ACT 65-66 (David L. Epstein, et al., eds. 2006). ..................................................................................... 62 Derek Catron, DeLand’s Patterson Announces Run for New State Senate Seat, DAYTONA BEACH NEWS-JOURNAL, Mar. 20, 2012 ................................................. 48 MIAMI 942372 (2K)

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Florida Senate Committee on Reapportionment, CS for SJR 2-B (2012) Staff Analysis (Mar. 21, 2012) ...................................................................................... 22 Florida Senate Journal (Extra App. Sess. 2012) .............................................. 14, 58 Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470 (Feb. 9, 2011) .............................................................. 1, 30 House of Representatives Committee on Redistricting, Amendment 724771 to SJR 2-B (Mar. 27, 2012) (on file with comm.) .................................................. 54 Jowei Chen & Jonathan Rodden, Tobler’s Law, Urbanization, and Electoral Bias: Why Compact, Contiguous Districts are Bad for the Democrats ................. 91 Lee Logan, Wilton Simpson Picks Up Backing of Outgoing Senate Prez Haridopolos, TAMPA BAY TIMES, Mar. 14, 2012................................................... 71 Mary Ellen Klas, Historic Redistricting Fight Leads to Historic Scramble for House Seats, MIAMI HERALD, Mar. 27, 2012 ........................................................ 24 Mary Ellen Klas, Legislature Seeks Federal Redistricting Review Even Without a Final Map, MIAMI HERALD, Apr. 2, 2012 ............................................. 90 Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 177 Yale L. J. 174 (2007) ..................................................................................... 47 Response of the Florida House of Representatives to Reply Brief, In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Fla. Mar. 9, 2012) (No. SC12-1) .......................................................................... 30 Response to Order of February 21, 2012, In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Fla. Mar. 9, 2012) (No. SC12-1) ........................................................................................................ 22

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PRELIMINARY STATEMENT In this Brief, references to the Appendix to the Attorney General‟s Petition are by “AG App.”, followed by the page number(s). References to the Appendix filed with this Brief are by “App.”, followed by the page number(s). References to the Court‟s opinion of March 9, 2012, are by “Op.”, followed by the page number in the slip opinion. Consistent with the practice of the United States Department of Justice, see Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470, 7472-73 (Feb. 9, 2011), minority voting-age populations are calculated by assigning each person who self-identified on the 2010 Census form as belonging to more than one race or ethnicity to each identified race or ethnicity. Unless otherwise indicated, compactness scores are obtained from the Senate‟s redistricting application (AG App. B6; App. 4). Although the Court used the ESRI Redistricting application, that organization recently informed subscribers: “We recently discovered that the compactness scores calculated when using the Reock Test within the Esri Redistricting application are incorrect. The cause of the incorrect calculations has been identified, and we are currently in the process of

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engineering a software update to address the issue.” 1 Therefore, the Senate did not use ESRI‟s numbers for compactness scores. All perimeters, end-to-end distances, and continuity percentages contained in this Brief are obtained from the Appendices submitted by the Attorney General and the Senate (AG App. B6, B63-B82; App.4). References to the political performance of districts are based on an average of the results of the 2010 presidential and the 2008 gubernatorial elections, excluding unaffiliated and minor-party candidates (AG App. B8-B41; App. 6-21). Unless otherwise indicated, references to the “Coalition plan” are to the plan submitted to the Court in SC12-1 and available to the Legislature at its extraordinary apportionment session.2 The Appendix to this Brief contains maps and statistics for the two alternative plans filed with the Court in this case.

1

In the ESRI Redistricting application‟s reports, Reock ratios are calculated using an inappropriate geographic projection and the wrong bounding geometry. 2

Eight days after the revised Senate plan was adopted, and seven days after the extraordinary apportionment session adjourned, the Coalition provided another plan to the Senate. It is this latter plan that the Coalition has filed with the Court in this case. MIAMI 942372 (2K)

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STATEMENT OF THE CASE AND FACTS This case is before the Court for approval of the Florida Senate‟s reapportionment plan.

On March 9, this Court approved the House of

Representative‟s plan but disapproved eight of the 40 districts in the Senate‟s plan and its numbering system. The Legislature has complied with the Court‟s mandate and submits an apportionment that addresses the Court‟s concerns. A. Reapportionment Under the Florida Constitution Article III, section 16 of the Florida Constitution requires the Legislature to apportion the state‟s legislative districts every ten years. The constitution provides that in the second year following each decennial census, the Legislature “shall apportion the state in accordance with the constitution of the state and of the United States into not less than thirty nor more than forty consecutively numbered senatorial districts of either contiguous, overlapping or identical territory.” Art. III, § 16(a), Fla. Const. It also provides that this Court shall enter a declaratory judgment on the apportionment plan‟s validity.

Art. III, § 16(c), Fla. Const.

Before 2010, this Court‟s review was limited to determining a plan‟s compliance with (i) the one-person, one-vote standard of the United States Constitution, and (ii) article III, section 16(a), which requires districts to be consecutively numbered and to consist of contiguous, overlapping or identical territory. Op. at 3. In 2010, however, Florida voters adopted the Fair Districts Amendment. Op. at 1. The MIAMI 942372 (2K)

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Florida Constitution now provides two “tiers” of redistricting standards. The first tier provides that: No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory. Art. III, § 21(a), Fla. Const. The second tier lists three more requirements: “districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.” Art. III, § 21(b), Fla. Const. Compliance with these second-tier standards is “subordinate to those listed in the first tier of section 21 and to federal law in the event of a conflict.” Op. at 4. The order in which the constitution lists the standards in the two tiers is “not [to] be read to establish any priority of one standard over the other within that [tier].” Art. III, § 21(c), Fla. Const. B. The Court’s Interpretation of the New Standards On February 9, 2012, the Legislature passed Senate Joint Resolution 1176 apportioning the state into 120 House districts and 40 Senate districts.

The

Attorney General filed a petition in this Court for a declaratory judgment determining the validity of the apportionment plans.

On March 9, the Court

approved the House plan but disapproved the Senate plan, finding that eight MIAMI 942372 (2K)

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proposed districts (1, 3, 6, 9, 10, 29, 30, and 34) and the district numbering system were constitutionally invalid. The Court defined the new standards listed in the Fair Districts Amendment “for the first time.” Op. at 5. It interpreted each of the tier-one and tier-two requirements in the constitutional amendments. 1. The Tier-One Requirements This Court defined each of the tier-one standards: (a) intent to favor or disfavor a political party or incumbent; (b) minority voting protection; and (c) contiguity.

In the event of a conflict, these standards override the tier-two

standards, but they have equal force among each other. Op. at 93. Intent to favor incumbents or political party. The first tier-one standard provides that “[n]o apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent.” Art. III, § 21(a), Fla. Const. The prohibition “applies to both the apportionment plan as a whole and to each district individually.”

Op. at 43.

Because any redrawing of districts “will

inherently have political consequences,” the Court focuses on both “direct and circumstantial evidence of intent.” Id. at 44. The Court “evaluate[s] the shapes of districts together with undisputed objective data, such as the relevant voter registration and elections data, incumbents‟ addresses, and demographics, as well as any proffered undisputed direct evidence of intent.” Id. at 47. It also considers MIAMI 942372 (2K)

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the “Legislature‟s level of compliance with our own constitution‟s tier-two requirements, which set forth traditional redistricting principles.” Id. at 46. For example, if a district‟s shape is “so highly irregular and without justification that it cannot be rationally understood as anything other than an effort to favor or disfavor a political party,” the Court may infer improper intent. Id. at 47. When deciding whether any intent to favor or disfavor an incumbent exists, the Court considers the district‟s shape in relation to the incumbent‟s residence, as well as other objective evidence of intent, including “the maneuvering of district lines in order to avoid pitting incumbents against one another” or the drawing of a new district so as to retain a large percentage of the incumbent‟s former district. Op. at 47. The Court determined that the original Senate plan was “rife with objective indicators of improper intent which, when considered in isolation do not amount to improper intent, but when viewed cumulatively demonstrate a clear pattern.” Op. at 124. The Court noted that no incumbents lived in the same district under the plan, suggesting that districts were purposefully drawn to prevent electoral contests between incumbents. Id. In addition, the proposed districts were composed of 64.2% of their predecessor districts, even though the 2002 districts were drawn when intent to favor a political party or an incumbent was permissible and the requirements of compactness and utilizing existing boundaries did not exist. Id. at 124-25. The Court found that the original plan‟s continuity with the MIAMI 942372 (2K)

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benchmark plan was evidence of intent to protect incumbents.

Moreover, as

discussed below, the Court found that the numbering of the Senate plan favored incumbents by allowing them to serve longer terms before disqualification by article VI, section 4 of the constitution. Id. at 125. The Court also found evidence that the original plan was improperly designed to favor a political party. The Court noted that the partisan balance created two fewer Democratic districts than the benchmark 2002 plan. Id. Also, 70% of the “under-populated” districts performed Republican, suggesting that districts were drawn to create more Republican-performing districts. Id. Minority voting protections. The second tier-one standard requires that “districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.” Art. III, § 21(a), Fla. Const.

The Court noted that this standard prevents both

impermissible vote dilution and impermissible diminishment of a minority group‟s ability to elect a candidate of its choice. Op. at 49. The first requirement is “essentially a restatement of Section 2 of the Voting Rights Act (VRA), which prohibits redistricting plans that afford minorities less opportunity than other members of the electorate to participate in the political process.” Op. at 49. The provision thus prohibits any practice or procedure that MIAMI 942372 (2K)

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“impairs the ability of a protected class to elect its candidate of choice on an equal basis with other voters.” Id. at 54. “A successful vote dilution claim under Section 2 requires a showing that a minority group was denied a majority-minority district that, but for the purported dilution, could have potentially existed.” Id. at 56. The second requirement codifies Section 5 of the VRA, which “attempts to eradicate impermissible retrogression in a minority group„s ability to elect a candidate of choice.” Op. at 50. This provision prevents the Legislature from “eliminat[ing] majority-minority districts or weaken[ing] other historically performing minority districts where doing so would actually diminish a minority group‟s ability to elect its preferred candidates.” Id. at 62. The Court observed that “a minority group‟s ability to elect a candidate of choice depends upon more than just population figures.”

Op. at 66.

Therefore, the Court required a

“functional analysis,” which considers not just the minority voting-age population in those districts, but also political data and past minority voting patterns. Op. at 63. The Court considered data on voting-age populations, voting-registration data, voting registration of actual voters, and election results history. Op. at 67. The Court found that the Senate plan did not facially dilute a minority group‟s voting strength or cause retrogression under Florida law. Id. at 126. It found no evidence that an additional majority-minority district could be created.

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Moreover, the original plan had as many minority districts as existed under the 2002 benchmark plan, with commensurate voting strength. Id. at 127. Contiguity. The third tier-one standard requires that the “districts shall consist of contiguous territory.” Art. III, § 21(a), Fla. Const. The Court defined contiguity as “being in actual contact: touching along a boundary or at a point.” Op. at 68. The Court found that the Senate plan met this requirement. Id. at 127. 2. The Tier-Two Requirements This Court also defined the tier-two standards: (a) equal population; (b) compactness; and (c) use of political and geographic boundaries.

These are

subordinate to the tier-one standards, but equal among each other. Op. at 93. Equal population. The first tier-two standard requires districts to be “as nearly equal in population as is practicable.” Art. III, § 21(b), Fla. Const. While the standard does not require exact mathematical equality, “any deviation from that goal of mathematical precision must be based upon compliance with other constitutional standards.” Op. at 74. Thus, the equal population requirement must “give way” to the tier-one standards and “be balanced with both compactness and the use of political and geographical boundaries.” Id. The Court did not find that the total deviation of the original plan, 1.99%, violated the equal protection provision “on this basis alone,” but rather the deviation needed to be assessed “in conjunction with the other tier-two standards.” Id. at 128. MIAMI 942372 (2K)

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Compactness. The second tier-two standard provides that districts “shall be compact.” Art. III, § 21(b), Fla. Const. The Court found that this provision refers only to geography and does not encompass communities of interest. Op. at 81. To assess compactness, the Court used both visual and quantitative approaches. Id. at 84. It found that “[c]ompact districts should not have an unusual shape, a bizarre design, or an unnecessary appendage unless it is necessary to comply with some other requirement.” Id. at 83. The Court used the Reock and Area/Convex Hull (“ACH”) methods. Id. at 34. It noted that districts need not have “the highest mathematical compactness scores,” because tier-one standards predominate to the extent they conflict with drawing a compact district. Id. at 87. Moreover, the ability to draw compact districts may be limited by geographical constraints and the need to keep counties or municipalities intact. Id. at 86. The Court found that certain districts in the original plan violated the compactness standard because of their “visually bizarre and unusual shapes.” Id. at 128. Moreover, certain districts had low Reock and ACH scores, with one district scoring as low as .05 (Reock) and .25 (ACH). Id. at 167. The Court also found that the Senate improperly considered “communities of interest,” which compromised the required geographical compactness. Id. at 129. Political and Geographical Boundaries. The third tier-two standard requires that “districts shall, where feasible, utilize existing political and MIAMI 942372 (2K)

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geographical boundaries.”

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Art. III, § 21(b).

The Court found that the term

“political boundaries” primarily encompasses municipal or county boundaries. Op. at 88.

Geographical boundaries must be “easily ascertainable and commonly

understood, such as rivers, railways, interstates, and state roads.” Id. at 91. The Court found that the original plan failed to “use any consistent definition of political and geographical boundaries.” Id. at 129. While certain districts adhered to county boundaries, “others freely split counties and follow a variety of roads and waterways, including minor residential roads and creeks.” Id. The Court found that to allow the Legislature “to simply use any boundary, such as a creek or minor road, would eviscerate the constitutional requirement.” Id. at 91. Interaction of the Standards. After describing the tier-one and tier-two standards, the Court considered how they interacted. It cautioned that compliance with a tier-one standard, such as the minority protection provision, may not serve as a pretext to disregard the tier-two standards. For example, if it is possible to comply with tier-two criteria without violating the minority protection provision, then “the Legislature‟s plan becomes subject to a concern that improper intent was the motivating factor for the design of the district.” Id. at 97. The Court found that the Senate failed to justify its departures from the tiertwo requirements based on a need to protect minority voting strength. The Court held that while the original plan did not facially dilute minority voting strength or MIAMI 942372 (2K)

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cause retrogression, the Senate failed to conduct a functional analysis to determine when, and to what extent, the tier-two requirements must yield in order to avoid conflict with Florida„s minority voting protection provision. Id. at 130. 3. This Court’s Application of the Standards Applying the constitutional standards, this Court held invalid Senate Districts 1, 3, 6, 9, 10, 29, 30, and 34. Op. at 184, 189. The Court directed the Legislature to “remedy the constitutional problems with respect to these districts, redrawing these districts and any affected districts in accordance with the standards as defined by this Court, and [to] conduct the appropriate functional analysis to ensure compliance with the Florida minority voting protection provision as well as the tier-two standards of equal population, compactness, and utilization of existing political and geographical boundaries.” Id. at 189-90. The Court also asked the Legislature to determine the feasibility of keeping the City of Lakeland in one district. Id. at 190. Finally, the Court determined that the numbering system was subject to scrutiny under article III, section 21. Id. at 143. Because the numbering system favored incumbents by allowing them to serve longer than they otherwise would be eligible to serve, the Court concluded the system was invalid. Id. C. The Legislature’s Revised Plan After this Court‟s opinion, the Legislature convened in a 15-day extraordinary apportionment session, as provided in article III, section 16(e) of the MIAMI 942372 (2K)

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constitution. Following committee and floor debates, it passed a revised plan that addressed each of the flaws this Court found.

The Legislature remedied the

constitutional problems in the eight districts the Court identified, redrawing them and any affected districts. Op. at 189. It also conducted a functional analysis to determine compliance with tier-one and tier-two standards, preserved the City of Lakeland within a single district, and renumbered Senate districts in an incumbentneutral manner. Id. at 189-90. These changes removed aspects of the plan that suggested an intent to favor a political party. See id. at 124-26. First, while the Court did not direct the Legislature to pair incumbents, see Art. III, § 21(a), Fla. Const. (prohibiting an intent to disfavor incumbents), the revised plan creates unintended disruption for them. It pairs two incumbent Republican leaders in a single district, places an incumbent Republican in a decidedly Democratic district, and places an incumbent Democrat in a district with barely 30% of her benchmark district. See infra Parts II.B.3 & II.B.5. Second, on average only 60.5% of the new districtsâ€&#x; populations are composed of their predecessor districts—a figure nearly identical to the House plan. Op. at 106-07. Third, unlike the original plan, a majority of Democraticperforming districts are now slightly under-populated and a majority of Republican-performing districts are slightly overpopulated (AG App. B1, B8-B11).

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In addition, the Senate renumbered the districts through a random system that eliminated any potential for favoring or disfavoring incumbents. The revised plan also complies with the tier-two standards. Districts are more compact both visually and quantitatively—the average scores increased from .35 to .40 (Reock) and from .69 to .76 (ACH). In addition, the Senate drew districts to incorporate, where feasible, existing county and municipal boundaries. The revised plan has a slightly lower deviation from equal population than the original.

And the Senate performed a functional analysis to assess the

retrogressive effects of proposed districts on minority voting strength. In assessing when and to what extent the two-tier standards must yield to avoid conflict with minority voting protections, the Senate considered voting-age populations, voterregistration data, registration of actual voters, and election results. The revised plan was approved on a 31-6 vote, with five of eleven Democrats voting in favor. See Fla. S. Jour. 207 (Extra. App. Sess. 2012). SUMMARY OF ARGUMENT The Legislature acted in good faith to remedy the specific flaws this Court identified in the original plan and to create a plan that conforms to article III, section 21. The revised plan meets these standards. It eliminates any features suggestive of intent to favor an incumbent or political party, including use of a manifestly incumbent-neutral renumbering system. The plan avoids dilution or MIAMI 942372 (2K)

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retrogression of minority voting strength while maintaining contiguity. The plan creates compact districts based on political and geographical boundaries while preserving a low population deviations among districts. The Legislature performed a functional analysis to assess when and to what extent the two-tier standards must yield to avoid conflict with Florida‟s minority voting protection provision. The Legislature also carefully remedied each of the specific districts which the Court found to be unconstitutional. Finally, the Legislature reconfigured districts in Polk County to keep the City of Lakeland entirely in a single district. As this Court recognized, the Court‟s task is not to select the best plan, but to decide whether the Legislature‟s plan is valid. Op. at 23-24. As long as that plan complies with the constitutional framework, it is entitled to deference. Id. The Legislature‟s good faith efforts have created a plan well within the constitutional framework that corrects each of the identified deficiencies. It should be approved. ARGUMENT The Florida Constitution requires this Court to determine the constitutional validity of the Legislature‟s joint resolution of apportionment. Art. III, § 16(c, e), Fla. Const. “Unless it can be shown that the joint resolution of apportionment facially violates some provision of the United States Constitution or the Florida Constitution, this Court may not declare the joint resolution invalid.” MIAMI 942372 (2K)

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Constitutionality of House Joint Resolution 1987, 817 So. 2d 819, 825 (Fla. 2002). In earlier reapportionment cases, the Court found that its scope of review under section 16(c) was “extremely limited.” Id. at 824. Since the adoption of the Fair Districts Amendment, the Court‟s scope of review has “plainly increased, requiring a commensurately more expanded judicial analysis of legislative compliance.” Op. at 22. The Court recognized, however, that “the House and Senate plans still come to this Court with an initial presumption of validity.” Id. at 19. Even though the Court “may disagree with the legislative policy in certain areas, the fundamental doctrine of separation of powers and the constitutional provisions relating to apportionment require that [the Court] act with judicial restraint so as not to usurp the primary responsibility for reapportionment, which rests with the legislature.” Id. (quoting In re Apportionment Law—1972, 263 So. 2d 797, 799-800 (Fla. 1972)). Therefore, this Court “will defer to the Legislature‟s decision to draw a district in a certain way, so long as that decision does not violate the constitutional requirements.” Op. at 23-24. I.

THIS COURT’S SCOPE OF REVIEW SHOULD BE LIMITED TO THE REDRAWN DISTRICTS AND THE CHANGE TO THE NUMBERING SYSTEM In SC12-1, this Court “disapproved the Senate plan, not in haphazard

fashion, but after carefully examining each district and detailing reasons for disapproving specific districts.” Op. at 203 (Labarga, J., concurring). The Court MIAMI 942372 (2K)

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identified eight out of forty Senate Districts as violating constitutional requirements. Id. at 184, 189. It then sought to “provide the Senate with sufficient guidance in our interpretation of the standards and our application of those standards.” Id. at 189. It provided that guidance as follows: We have held that Senate Districts 1, 3, 6, 9, 10, 29, 30, and 34 are constitutionally invalid. The Legislature should remedy the constitutional problems with respect to these districts, redrawing these districts and any affected districts in accordance with the standards as defined by this Court, and should conduct the appropriate functional analysis to ensure compliance with the Florida minority voting protection provision as well as the tier-two standards of equal population, compactness, and utilization of existing political and geographical boundaries. As to the City of Lakeland, the Legislature should determine whether it is feasible to utilize the municipal boundaries of Lakeland after applying the standards as defined by this Court. In redrawing the apportionment plan, the Legislature is by no means required to adopt the Coalition„s alternative Senate plan. Finally, we have held that the numbering scheme of the Senate plan is invalid. Accordingly, the Legislature should renumber the districts in an incumbent-neutral manner. Id. at 189-90 (emphasis added). The Court directed the Legislature to (1) redraw the eight invalid districts and affected districts; (2) conduct a functional analysis; (3) preserve the City of Lakeland if feasible; and (4) adopt an incumbent-neutral numbering scheme. Id. The Court did not instruct the Legislature to redraw the entire plan or to change other, unspecified districts. Therefore, this proceeding is limited. The issue is whether the Legislature complied with the Court‟s specific mandate, not whether other districts that this

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Court either did not find invalid or specifically found valid comply with constitutional standards. Any other result would deny the Senate the constitutional right to redraw districts before the Court undertakes the drastic measure of drawing them itself. Even if this Court‟s mandate did not prohibit objecting to unchanged districts, the doctrine of res judicata would. As this Court has held, under the doctrine of res judicata, a judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action. Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (internal citations omitted). The opponents in this case participated in SC12-1. This Court rendered a declaratory judgment on the merits between these parties regarding the constitutionality of every Senate district. Op. at 190; see also Art. III, § 16(c), Fla. Const. (“[T]he attorney general shall petition the supreme court of the state for a declaratory judgment determining the validity of the apportionment.”).

That

judgment therefore has res judicata effect. The opponents cannot now challenge unchanged districts. This case is indistinguishable from Advisory Opinion to Attorney General re Referenda Required for Adoption and Amendment of Local Government

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Comprehensive Land Use Plans, 938 So. 2d 501, 505 (Fla. 2006). In an earlier case, the Court had found deficient the ballot summary of a proposed initiative amendment.

Relying on the Court‟s opinion, the sponsor rewrote the ballot

summary and recirculated the petition. In reviewing the revised ballot summary, this Court concluded that res judicata barred the opponents from alleging deficiencies that could have been raised in the earlier case.

As in that case,

“[a]llowing piecemeal attacks on a proposed [apportionment plan] would not only be fundamentally unfair [to the Florida Senate], it would be a misuse of the process for approval of [apportionment plans].” Id. Moreover, because “[t]he doctrine of res judicata . . . precludes consideration of issues that could have been raised but were not raised in the first case,” opponents of the apportionment plan cannot argue any new deficiencies in the districts that this Court has already approved. Juliano, 801 So. 2d at 105 (citing Youngblood v. Taylor, 89 So. 2d 503, 505 (Fla. 1956)). Finally, nothing precludes the application of res judicata to redistricting challenges. See, e.g., McNeil v. Legislative Apportionment Comm’n, 828 A.2d 840, 857-862 (N.J. 2003); Snyder v. Munro, 721 P.2d 962, 963-64 (Wash. 1986). In addition, it would be fundamentally unfair to allow opponents to object to unchanged districts. Article III guarantees the Legislature the ability to remedy the defects this Court identified. The article provides that the remedies should be included in a revised plan. Art. III, § 16(e), Fla. Const. If the Court disapproves MIAMI 942372 (2K)

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the revised plan, it must reapportion the districts itself. Art. III, ยง 16(f), Fla. Const. By raising new challenges to the Senate plan now, the opponents would deprive the Legislature of its opportunity to remedy those alleged defects, thereby shifting the power (and burden) of reapportionment to the Court.

This upsets the

constitutional balance and deprives the Legislature of its constitutional right (and responsibility) to remedy plan defects. In addition, it would encourage future litigants to game the system by reserving some claims for the second proceeding. This Court should review only those specific districts it found deficient. The opponents attempt just such gamesmanship by objecting to several districts that are unchanged from the original plan: Districts 7 (number unchanged) (FDP br. at 17-19); 17 (prior District 15) (Coalition br. at 23); 18 (prior District 20) (Coalition br. at 27-28); 19 (number unchanged) (Coalition br. at 23-25); 22 (number unchanged) (Coalition br. at 25-26); and 39 (prior District 40) (Coalition br. at 36-42; FDP br. at 30-33).3 The opponents also object to Districts 14 (number unchanged) (FDP br. at 27) and 32 (prior District 25) (Coalition br. at 32-36, FDP br. at 23-25), which are only minimally altered from the original Senate plan. This Court did not invalidate any of those districts, and in fact specifically approved

3

Revised District 39 contains an insubstantial change in Collier County, but no change in Miami-Dade County, where the opponents focus their challenge. 20 MIAMI 942372 (2K)


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some of them. Op. at 175-78. These new challenges are not properly before the Court and should be ignored. II. THE REVISED MANDATE

PLAN

COMPLIES

WITH

THE

COURT’S

Below, we (A) show how the revised plan complies with the constitutional requirements and this Court‟s opinion; (B) describe the Senate‟s remedies for the specific deficiencies this Court identified; and (C) address the opponents‟ objections to districts this Court did not invalidate.4 A. The Revised Plan Complies with the Standards of Article III, Section 21 of the Florida Constitution and This Court’s Opinion In addressing this Court‟s instructions, see Op. at 189-90, the Legislature complied with all the requirements of article III, section 21. 1. The Revised Plan Satisfies the Tier-One Requirements As we describe below, the revised plan satisfies the tier-one requirements that districts (a) be drawn without the intent to favor or disfavor a political party or an incumbent; (b) maintain minority voting protection; and (c) be contiguous.

4

The Court also asked the Legislature to “determine whether it is feasible to utilize the municipal boundaries of Lakeland after applying the standards as defined by this Court.” Op. at 190. The revised plan keeps Lakeland in a single district (new District 15). The City of Lakeland supports the revised plan‟s treatment of Lakeland.

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a) The revised plan does not intentionally favor or disfavor political parties or incumbents The revised plan eliminates the features of the original plan that the Court found indicated an intent to favor a political party. The revised plan complies with the mandate. Whereas under the original plan no incumbents lived in the same district, under the revised plan, two Republican incumbents (the Majority Leader and the Majority Whip) now reside in the same district (AG App. G848-49); Response to Order of February 21, 2012, In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Feb. 22, 2012) (No. SC12-1). Further, another incumbent Republican (Senator Ellyn Bogdanoff (R)) resides in a decidedly Democratic district. While the plan was drafted without regard to any Senator‟s place of residence, the fact that the revised plan pits two of the majority party‟s most prominent members against each other demonstrates the plan‟s incumbent-neutral character. The revised plan was also drawn without reliance on existing districts, which were drawn before the new constitutional requirements. The new districts derive 60.5% of their populations from their predecessor districts—a figure far lower than in the initial plan (64.2%) and nearly identical to the House plan that this Court approved (59.7%). Op. at 106-07, 124. The Senate implemented a random system to determine the numbering of districts to ensure that incumbents were neither favored nor disfavored (AG App. MIAMI 942372 (2K)

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G483-G648); Fla. S. Comm. on Reapp., CS for SJR 2-B (2012) Staff Analysis 4 (Mar. 21, 2012). As this Court noted, whether a district‟s number is odd or even determines whether a candidate elected at the 2012 general election will serve a two-year term or a four-year term, and therefore affects the number of years which, under constitutional term-limits provision, an incumbent is eligible to serve in the Florida Senate. Op. at 132-43. The Senate decided that random selection of odd and even values would best implement the Court‟s direction. This numbering system eliminates any possibility of favoritism towards incumbents. None of the opponents has objected to the numbering system. Finally, the Court criticized the prior plan because 70% of the underpopulated districts were Republican-performing. Op. at 125. Under the revised plan, most Democratic-performing districts are under-populated.

In light of

Republican control of both houses of the Legislature, Op. at 98, these facts show that the revised plan was not intended to favor or disfavor any political party. The Opponents’ objections are meritless. This Court did not require the Senate to pair a certain number of incumbents. The opponents ignore these facts and instead argue that the revised plan does not pair as many incumbents as they would like. Opponents‟ objections read as if the Court had mandated a certain minimum number of pairings. This was not—and could not be—the case. See Art. III, § 21(a), Fla. Const. (prohibiting MIAMI 942372 (2K)

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an intent to disfavor incumbents). The Court simply mandated, as the Constitution requires, that districts be drawn without intentionally favoring or disfavoring incumbents. The revised Senate plan clearly complies. As discussed above, the revised Senate plan pairs two incumbent Republicans: the Majority Leader, Senator Gardiner (R), and the Majority Whip, Senator Simmons (R). It places Senator Bogdanoff (R) in a Democratic district, and places Senator Sachs (D) in a district with little of her present constituency. In fact, it is foreseeable that Senator Sachs will voluntarily pair herself with Senator Bogdanoff rather than stand for reelection in an unfamiliar district. See infra Part II.B.5. Given that the Court did not require the Senate to redraw the entire plan (no party contends otherwise), the disruption created by the revised plan is significant. The opponents dismiss the pairing of Senators Gardiner and Simmons as not “meaningful� (Coalition br. at 10) because Senator Simmons intends to move and seek reelection in District 10 (id. at 21). But the Senate cannot confine Senator Simmons to his current residence or disable him from seeking reelection. Indeed, a number of House incumbents who were paired in the House plan the Court approved will move and seek reelection in different districts. See, e.g., Mary Ellen Klas, Historic Redistricting Fight Leads to Historic Scramble for House Seats, MIAMI HERALD, Mar. 27, 2012.

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The opponents presume that an unbiased, incumbent-blind redistricting would necessarily produce many incumbent pairs. This is not the case.

The

Coalition‟s new plan, for example, creates four pairs, but only by sacrificing constitutional standards and gerrymandering districts to discriminate against incumbents. Two of the Coalition‟s pairs occur in Broward and Palm Beach Counties, at the expense of county boundaries.

The Coalition adopts the Legislature‟s

minority district (District 31), but rotates clockwise the five surrounding districts (Districts 25, 27, 29, 33, and 34) to achieve two incumbent pairs. In doing so, however, District 29 broke the county boundary between Palm Beach and Broward Counties.

While the revised Senate plan has one district that straddles that

boundary, the Coalition‟s new plan contains two. In this region, therefore, the revised Senate plan better complies with the mandate to utilize political boundaries, and with the prohibition against favoring or disfavoring incumbents. See Op. at 46 (“A disregard for [tier-two] principles can serve as indicia of improper intent. . . . [S]trict compliance with their express terms may serve to undercut or defeat any assertion of improper intent.”). The Coalition achieves its fourth pair in Miami-Dade County.

But in

altering these districts, the Coalition exceeded the Court‟s instructions, which did not direct any changes to that county. See id. at 189-90. In fact, the Court upheld MIAMI 942372 (2K)

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the Senateâ€&#x;s configuration of districts in Miami-Dade County, and disapproved the Coalitionâ€&#x;s. See id. at 176-78.5 Elsewhere in the state, it is nearly impossible to create much incumbent disruption. Excluding the eleven term-limited incumbents and one incumbent who has declared for Congress (Senator Oelrich), a statewide survey shows the improbability of pairing any large number of the remaining Senators. For example, Senators Evers and Gaetz reside in Okaloosa County, but one resides in the northwest part of the county, while the other resides in the southeast part. The one-person, one-vote standard requires that the county be divided, and it is nearly impossible to divide it without separating northwest from southeast. Of the 34 publicly submitted Senate plans that drew Panhandle districts, only one paired Senators Evers and Gaetz, and it did so only by dividing Fort Walton Beach. The other four incumbents north of Central Florida reside at great distances from one another (Tallahassee, Inverness, Jacksonville, and Saint Augustine), and of the three Central Florida incumbents, the revised Senate plan pairs two. In the Tampa Bay area, the incumbents are separated less by distance than demography; the minority district naturally includes one incumbent and not the 5

Each of the four Democrats the Coalition paired (Senators Margolis, Ring, Sachs, and Sobel) voted for (or to introduce) the Senateâ€&#x;s original or revised redistricting plan at least once. None of the Democrats who consistently voted against the plans was paired. MIAMI 942372 (2K)

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other three, who reside in areas without large minority populations. These three are separated by large populations: one resides east of the minority district, while the other two are separated by a county boundary and significant populations. In Southwest Florida, two incumbents reside in large, distinct population centers—Naples and Fort Myers—that do not lend themselves to combination in a single district. A third resides in Sarasota County, which a compact district based in Fort Myers cannot easily reach without exceeding the ideal population. On the Space and Treasure Coasts, the two incumbents reside nearly 100 miles apart. The Coalition‟s theory that the revised plan protects House incumbents (br. at 27, 28, 37) could not be more false. The revised Senate plan contains many pairs of non-incumbent “incumbents,” including House members and former legislators, who would be surprised to learn that the Senate favored his or her candidacy. 6

6

If House members and former legislators are considered “incumbents,” the revised Senate plan contains at least eight pairings: Sen. Jim Norman and former Rep. Rob Wallace (District 17); Sen. Gwen Margolis and former Sen. Alex Diaz de la Portilla (District 35); Sen. Sachs, Rep. Joe Abruzzo, and former Rep. Kevin Rader (District 25); Sen. Lizbeth Benacquisto and Rep. Trudi Williams (District 30); Rep. Pat Patterson and Rep. Dorothy Hukill (District 8); Rep. Mack Bernard and Rep. Jeff Clemens (District 27); Rep. Ron Saunders, Rep. Dwight Bullard, and former Rep. James Bush (District 39); Rep. Mike Weinstein and former Rep. Aaron Bean (District 4).

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Pairing incumbents is not a constitutional mandate.

To the contrary,

intentionally gerrymandering districts to disfavor incumbents is constitutionally prohibited. The question is not whether the Senate paired a sufficient number of incumbents, but whether the revisions made to conform to the judgment of the Court were incumbent-neutral. They were. The continuity of Senate districts is consistent with that of House districts. The opponents next argue that 60.5% of the population of each new district is composed of population from a predecessor district. But the opponents ignore the fact that this is nearly identical to the House plan, which retained 59.7% of the population of each district and which this Court approved. Op. at 106-07. The partisan balance of the plan is not proof of improper intent. The Coalition‟s suggestion that the Senate plan exhibits an intent to favor the Republican Party based on a “severe partisan skew” (br. at 12) is without merit. Indeed, the Coalition‟s assertion is simply a reprise of the argument that this Court rejected in SC12-1. The Court rejected this argument for two fundamental reasons, both of which still apply. First, as the Court noted, the Coalition‟s argument seeks to equate disproportionate partisan effect with an improper intent to disfavor a political party.

As this Court held, however, since, “by its express terms, Florida‟s

constitutional provision prohibits intent, not effect,” it plainly “does not require the MIAMI 942372 (2K)

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affirmative creation of a fair [partisan] plan, but rather a neutral one in which no improper intent was involved.” Op. at 46, 103. The Court also noted that the difference between “unfair” effect and improper intent is particularly acute in Florida because there are obvious “[e]xplanations other than intent to favor or disfavor a political party [that] could account for this [partisan] imbalance.” Id. at 102. For example, “Democrats tend to cluster in cities, which may result in a natural „packing‟ effect, regardless of where the lines are drawn.” Id. Moreover, “the imbalance could be the result of a legitimate effort to comply with VRA principles,” id., since, as even the Coalition admitted in its prior brief, minority opportunity districts almost inevitably “tend to be very Democratic,” Br. of the League of Women Voters of Fla., et al., at 40, In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Fla. Mar. 9, 2012) (No. SC12-1). Second, the Court applied these principles to hold that a Senate plan that produced 24 or even 26 Senate districts that would likely elect Republicans was not a sufficient “partisan imbalance” to support an inference of “overall intent to favor Republicans.” Op. at 101-02. Necessarily, the Coalition‟s new claim that a “partisan skew” of 25 or 26 Republican seats permits an inference of partisan intent is also deficient.

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Finally, and perhaps most important, the Coalition‟s claim that a “fair” or “neutral” plan would result in an equal distribution of Democrats and Republicans is based on a false premise. Contrary to its repeated suggestions, the fact is that the Republicans and Democrats are not evenly matched in state-wide elections. To the contrary, Republicans have won 12 of the last 13 state-wide elections for state office with an average margin of victory of nearly 10%. See Response of the Florida House of Representatives to Reply Brief, at 3 & n.1 In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Fla. Mar. 9, 2012) (No. SC12-1). Therefore, even if a neutrally drawn plan could be equated with proportionality, no basis exists for finding that 20 Senate seats is proportionate to the Democratic share of the state-wide electorate. 7 b) The plan maintains minority voting protections This Court concluded that the original plan did not violate the minority protection provision because it did not result in vote dilution or retrogression of

7

Even if one accepts all of the Coalition‟s analysis, the plan produced by the Legislature is a fair plan that provides precisely the level of competitiveness and responsiveness that redistricting plans strive for. Under the Coalition‟s analysis, the Legislature‟s plan produces 14 safe Democratic seats and 10 additional “competitive” seats. Thus, under the Coalition‟s analysis, the Democrats have an opportunity to win 24 seats in the Senate, and a realistic opportunity to garner 20 seats, if they actually secure 50% of Floridians‟ votes. A plan in which the legislative majority shifts in conjunction with shifts in voter preferences is the ideal for a “fair” plan. See, e.g., Davis v. Bandemer, 478 U.S. 109, 130-31 (1986) (plurality op.). 30 MIAMI 942372 (2K)


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minority voting strength. Op. at 126-27. The revised plan maintains the same number of majority-minority districts and minority opportunity districts (AG App. B8-11, B32-35).

Moreover, as described above, the Legislature performed a

functional analysis to ensure that compliance with the minority protection requirements did not come at the expense of the tier-two constitutional requirements. None of the revisions impairs minority voting protections. The NAACP argues that revised Districts 9 and 31 impair minority voting protections. As to District 9, it claims that the revised plan “strands a significant number of black voters in the Daytona Beach area” (br. at 17).

The Senate

understands that position. After all, it had modeled its minority districts after the NAACP‟s proposal. Op. at 130 & n.40. But the NAACP did not endorse the original plan, allowing the opponents to argue that a district stretching from Jacksonville to Daytona Beach was invalid. This Court agreed, commending a design confining the district to Duval County. Op. at 153. The Senate followed this Court‟s instructions. New District 9 is nearly identical to the district this Court endorsed.

The NAACP now proposes the

Senate‟s original district and asks the Court to reverse course. The Court should decline the invitation. Moreover, as the NAACP itself admits, its objections are not based on facts, but on speculation. The most it can argue is that the evidence before the Court is MIAMI 942372 (2K)

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insufficient to prove that Districts 9 and 31 will perform for minorities (br. at 6, 8, 16), arguing that such data does not exist because “the list of elections available does not include a sufficient number of racially-contested elections” (br. at 8). But as this Court has recognized, the Florida Constitution “does not incorporate the portion of Section 5 [of the VRA] placing the burden of proof on the covered jurisdiction to establish the requirements necessary to obtain preclearance.” Op. at 60 n.26. This means that the entire Senate plan, including the majority-minority districts, “still come[s] to this Court with an initial presumption of validity.” Id. at 19. As a result, any insufficiency in the evidence simply means that the NAACP cannot meet its burden and that its objection should be overruled. The NAACP‟s claim that BVAP in District 31 is 47.75% is incorrect. BVAP in District 31 is 50.1% (AG App. B1). The correct figure includes persons who self-identified as black in combination with one or more races or ethnicities, consistent with Department of Justice counting methodologies. 8 See Guidance

8

The NAACP—and the Coalition in its brief and Appendix Tab D—count only those as black who on their 2010 Census forms self-identified their race as “Black, African Am., or Negro” alone and who self-identified as “No, not of Hispanic, Latino, or Spanish origin.” Any person who checked any of the following boxes in combination with “Black, African Am., or Negro” is excluded from the NAACP‟s and Coalition‟s percentages: (1) White, (2) American Indian or Alaska Native, (3) Asian Indian, (4) Chinese, (5) Filipino, (6) Other Asian, (7) Japanese, (8) Korean, (9) Vietnamese, (10) Native Hawaiian, (11) Guamanian or Chamorro, (12) Samoan, (13) Other Pacific Islander, (14) Some other race, (15) Mexican, Mexican 32 MIAMI 942372 (2K)


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Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470, 7472-73 (Feb. 9, 2011). The functional analysis this Court prescribed proves that minority voting strength in District 31 is not only sufficient, but strong. See infra Part II.B.5. c) The revised plan creates contiguous districts It is uncontested that the revised plan contains districts that “consist of contiguous territory.” Art. III, §§ 16(a), 21(a), Fla. Const. 2. The Revised Plan Satisfies the Tier-Two Requirements The revised plan also satisfies the tier-two requirements that districts (a) be nearly as equal in population as practicable; (b) be compact; and (c) adhere to political and geographical boundaries. a) The revised plan maintains small deviations from the equal population requirement The population deviation under the revised plan is 1.99%—less than one percent under or over the ideal (AG App. B1). This is slightly less than the deviation under the original plan, which this Court found acceptable, Op. at 128 n.39, and significantly less than the 3.98% deviation in the House plan, which the Court upheld, id. at 112. Moreover, as this Court recognized, this requirement must “give way” to the tier-one standards and “be balanced with both compactness Am., Chicano, (16) Puerto Rican, (17) Cuban, or (18) Another Hispanic, Latino, or Spanish origin. MIAMI 942372 (2K)

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and the use of political and geographical boundaries.” Op. at 74. To the extent the revised plan deviates from strict mathematical equality, this was done to preserve minority districts, to respect political and geographical boundaries, or to construct compact districts. b) The revised plan creates compact districts The revised plan creates far more visually compact districts than the original did (AG App. B1, 3). And the metrics this Court used confirm that districts are more compact. A comparison of compactness scores shows that the revised plan is superior to the benchmark plan, the original 2012 plan, and the Coalition plan: Plan Benchmark Plan Original 2012 Plan Coalition Plan Revised 2012 Plan

Reock 0.31 0.35 0.40 0.40

ACH 0.64 0.69 0.74 0.76

An analysis of individual districts shows the same improvement. In SC12-1, the Court identified nine districts—three House districts and six Senate districts— with low compactness scores. Op. at 110, 129. Each had a Reock score less than 0.25 and an ACH score less than 0.50 in the ESRI compactness report.9 The only districts in the revised plan with such low compactness scores (19 and 39) are drawn to comply with Section 5 of the VRA, which requires federal preclearance 9

House Districts 88 (.08/.34), 117 (.20/.49), and 120 (.16/.46) and Senate Districts 1 (.12/.46), 6 (.12/.43), 12 (.24/.41), 19 (.21/.45), 34 (.05/.25), and 40 (.19/.43). MIAMI 942372 (2K)

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of voting changes that affect Florida‟s five covered counties. 10 Both districts are substantially unchanged from the original plan, and, while noting their low compactness scores, see Op. at 129, the Court found no fault with either. 11 Moreover, District 39 includes the Florida Keys, which necessarily affects its compactness scores. Op. at 86. Other quantitative measures confirm that the districts in the revised plan are objectively more compact than those of the benchmark 2002 plan and the original 2012 plan, as well as the Coalition plan: Plan Benchmark Plan Original Senate Plan Coalition Plan Revised Senate Plan

Average Perimeter 286.8 miles 249.4 miles 244.4 miles 223.4 miles

Average End-to-End Distance 71.2 miles 67.9 miles 64.4 miles 62.4 miles

10

This holds true whether the compactness scores are calculated by ESRI, Maptitude, or the Senate. 11

Indeed, the Court was especially deferential to legislative determinations regarding compliance with Section 5 and avoiding retrogression in the five preclearance counties. Op. at 114 (upholding a House district after noting that it included “covered jurisdiction under Section 5 of the VRA, and must obtain preclearance from the DOJ”); id. at 121 (upholding a House district after noting that it covered “one of the five Florida counties that must obtain preclearance from the DOJ under Section 5 of the VRA”); id. at 178 (“Significantly, District 40 includes three covered counties (Monroe, Collier, and Hendry Counties) for purposes of Section 5 preclearance under the VRA.”).

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(AG App. B6). These results are attributable in great measure to the functional analysis the Court prescribed. In applying this Court‟s instruction to “conduct the appropriate functional analysis to ensure compliance with the Florida minority voting protection provision as well as the tier-two standards,” Op. at 189, the Senate followed the Court‟s examples. See id. at 151-52, 153-54, 168 n.55, 171 n.59. It obtained from the House‟s MyDistrictBuilder application the full assortment of voter-registration data and election information for districts not only in the revised plan, but in alternatives considered in the drafting process. For reference, the Senate created summary spreadsheets that contained the precise data points the Court included in its functional analyses (AG App. B8-B11). See id. The Senate redrew three of six historically performing African-American districts more compactly.12 Unlike its predecessor, which spanned five counties from Jacksonville to Daytona Beach, new District 9 is contained entirely in Duval County. Unlike its predecessor, which followed a narrow corridor from North Palm Beach to South Broward County, new District 31 is contained entirely in

12

Of the other three, two (new Districts 19 and 39) are subject to Section 5 preclearance review, and the third (new District 36) was already among the most compact.

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Broward County. And unlike its predecessor, whose unusual shape extended into two counties, new District 12 is now contained entirely in Orange County. This remodeling not only enabled the Legislature to draw three minority districts wholly within single counties, but also enhanced those districts‟ visual and mathematical compactness: Reock

District 9 (formerly 6) 12 31 (formerly 34)

Old .12 .24 .05

ACH New .41 .40 .33

Old .43 .41 .25

New .64 .74 .70

The Legislature performed the functional analysis this Court prescribed to determine whether minorities will be able to elect their preferred candidates, and whether—and to what extent—the tier-two requirements must yield.13 c) The revised plan adheres geographical boundaries

to

political

and

Mindful of this Court‟s criticism that the original plan “freely split counties and follow[ed] a variety of roads and waterways, including minor residential roads and creeks,” Op. at 129, the revised plan preserves county integrity where feasible. The 2002 benchmark plan left intact only 22 counties (AG App. B7). The original 2012 plan left intact 36. Id. The revised plan leaves intact 43 (64.2%). Id. It also 13

The Senate also performed the functional analysis on the new Hispanic-majority district in Central Florida (new District 14) and concluded that it cannot be materially altered without serious detriment to the ability of Hispanic voters to elect the candidates of their choice. See infra Part II.B.3. MIAMI 942372 (2K)

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adheres to municipal boundaries. Whereas the benchmark plan kept intact 284 of 410 municipalities and the original 2012 plan kept intact 356, the revised plan keeps intact 363 (88.5%). Id. While certain counties and municipalities remain divided, the constitution requires using existing political and geographical boundaries “where feasible.” Art. III, § 21(b), Fla. Const. Moreover, as this Court recognized, Op. at 38, this standard is subordinate to the tier-one standards, including the minority protection requirement, and must be balanced with the need to create compact districts of equal population. The revised plan adheres to existing political and geographical boundaries while conforming to other constitutional standards. B. The Revised Plan Remedies the Specific Constitutional Deficiencies This Court Identified in Eight Districts in Five Regions This Court held invalid eight districts in five regions: Districts 1 and 3 (northwest), Districts 6 and 9 (northeast), District 10 (central), District 30 (southwest), and Districts 29 and 34 (southeast). The Legislature corrected each of these deficiencies. We first address these, and then address other districts to which the opponents have objected. 1.

Northwest Florida

This Court held that Districts 1 and 3, which followed a horizontal orientation to separate the Panhandle‟s coastal and rural communities, were not compact and did not consistently use political and geographical boundaries: MIAMI 942372 (2K)

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(Figure 1: Northwest Florida in the original plan) The revised plan abandons this horizontal alignment and instead adheres to county boundaries. While the original plan divided five counties, the revised plan divides one. Where the equal population standard compels dividing Okaloosa County, the boundary is Interstate 10.

It deviates from Interstate 10 only to

preserve the City of Crestview, which lies on both sides of the highway. The new configuration also enhances the compactness of the Panhandle districts. They resemble squares or rectangles, and the mathematical measures confirm the visual impression. The following chart demonstrates the improved compactness of the two districts: District 1 3 (now 2)

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Reock Old .14 .26

ACH New .43 .45

39

Old .46 .73

New .79 .80


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The map reveals the compact shapes of the new Panhandle districts:

(Figure 2: Northwest Florida in the revised plan) None of the opponents have objected to the Panhandle districts. The Court should approve them. 2.

Northeast Florida

The Court concluded that District 6, a minority-opportunity district extending from Duval to Volusia County, sacrificed compactness and use of political and geographical boundaries when not necessary to comply with minority voting protections. Op. at 155. The Court remarked that the Senate did not perform a functional analysis to determine whether minority voting strength could be maintained consistent with tier-two standards. Id. at 151. It also concluded that, because District 6 must become more compact, adjacent District 9 must “become more compact as well.� Id. at 155.

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The revised plan corrects the deficiencies. The minority-opportunity district (renumbered District 9) is now contained entirely in Duval County. New District 9 is compact and respects political and geographical boundaries.

Its compactness scores increased from 0.12 to 0.41

(Reock) and from 0.43 to 0.64 (ACH). Its perimeter decreased from 425 miles to 146, and the distance between the two most remote points decreased from 103 miles to 31. District 9 no longer divides five counties, but is contained in one, and therefore allows three other counties—St. Johns, Flagler, and Putnam—to remain whole. Within Duval County, where no single political or geographical boundary is readily available, District 9 uses the St. Johns River, the Broward River, and Interstates 10, 95, and 295. A comparison of these districts in the original and revised plans shows the improvement:

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(Figure 3: Northeast Florida in the original plan (left) and the revised plan (right)) Even with the enhanced compactness of new District 9, minorities retain an undiminished ability to elect the candidates of their choice. With assistance from the House‟s MyDistrictBuilder web application, the Senate performed a functional analysis. It found that in District 9, which has a black-voting age population (“BVAP”) of 43.0%, Alex Sink (D) would have received 57.0% of the vote in the 2010 gubernatorial election, Barack Obama (D) would have received 59.8% in the 2008 presidential election, and Jim Davis (D) would have received 48.6% in the 2006 gubernatorial election. Further, 54.9% of registered voters are Democrats, 67.6% of registered Democrats are black, and 86.7% of black registered voters are

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Democrats. In the last general election, 54.3% of registered voters who voted were Democrats, 67.5% of those Democrats were black, and 91.4% of black voters were Democrats. Black voters would also have comprised 66.3% of the Democratic primary (AG App. B8). This analysis shows that minorities are as likely as in Benchmark District 1 to elect the candidates of their choice. New District 9 resembles Coalition District 1, which this Court commended. Op. at 155 (“Thus, the Coalition has demonstrated that District 6 can be drawn much more compactly and remain a minority-opportunity district. In addition to being much more visually compact, the compactness measurements are much better”). 14 A functional analysis demonstrates that minority voting strength in new District 9 is comparable to that in Coalition District 1. See id. New District 9, like Coalition District 1, is contained wholly in one county, but its boundaries are cleaner and less erratic, in part because they more extensively follow rivers and interstate highways. A visual comparison confirms the point:

14

The Coalition‟s new (April 4) District 9 is virtually identical to the Senate‟s.

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(Figure 4: Northeast Florida in the revised plan (left) and the Coalition Plan (right)) New District 9 enables its adjacent district (renumbered District 6) to be compact as well. New District 6 no longer consists of parts of four counties, but of three whole ones (St. Johns, Flagler, and Putnam) and (to attain the necessary population) a small part of Volusia County. In fact, under the revised plan, except for Duval and Okaloosa Counties, every county north of Marion and Volusia remains whole. The compactness scores of new District 6 increased from 0.16 to 0.49 (Reock), and from 0.61 to 0.78 (ACH). New District 6 also permits Clay County to remain whole. Finally, no appearance of intent to favor incumbents or political parties remains. Old District 9 derived 69.7% of its population from its predecessor district. Op. at 156. New District 6 derives less than half (49.6%).

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The opponents’ objections are meritless. Re-drawing District 9 necessarily required re-drawing Districts 6 and 8. The opponents object to these districts, complaining that the boundary between Districts 6 and 8 follows no consistent political or geographical boundary. This is plainly false: the boundary between Districts 6 and 8 uses county boundaries along its entire length, except where District 6, to meet the one-person, one-vote mandate, enters Volusia County. The county boundaries are not straight, but they are county boundaries.

In Volusia County, District 6 follows the principal

highway—U.S. 92, also known as International Speedway Boulevard—and not a “minor roadway,” as the opponents suggest (Coalition br. at 16). The Coalition complains that District 6 divides Volusia County with “no justification” (br. at 16), but this too is plainly wrong. District 6 is composed of three whole counties—St. Johns, Putnam, and Flagler—and must enter another county—either Clay or Volusia—to achieve the requisite population. The Senate decided that, rather than split a county that would otherwise be kept whole (Clay), District 6 should enter Volusia, which was already divided by District 10. This is a legitimate decision within the Legislature‟s discretion. The Legislature was not bound to split Clay County to preserve Daytona Beach. Like the House, the Senate emphasized county integrity—an approach the Court approved. Op. at 88-89.

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The opponents hint that the division of the Bethune-Cookman College community diminishes minority rights, but they do not identify a decipherable legal theory that supports their conclusion. Communities of interest, of course, are not protected by the Florida Constitution, Op. at 81, and the Bethune-Cookman community is not a political subdivision. There is no contention that the BethuneCookman community is sufficiently numerous to form a majority-minority district, as Section 2 principles require.

Op. at 57.

And the Legislature avoided

diminishment by redrawing benchmark District 1 precisely as the Court suggested: “entirely within Duval County.” Op. at 153. The fact that District 9 no longer includes Bethune-Cookman is not a valid objection: the non-diminishment standard does not prohibit changes to the boundaries of existing minority districts. Op. at 171-72. Indeed, the Court instructed the Legislature to redraw this district without extending to Daytona Beach. Op. at 153. 15 The FDP‟s argument is unprecedented. The FDP essentially contends that, where the boundaries of a performing minority district are altered, minorities who 15

In SC12-1, the opponents advocated “spreading out minority voters over a greater number of districts” (FDP br. at 23). The revised Senate plan affords black voters in the area more influence than the alternative plans: Plan Revised Senate Plan Revised Coalition Plan FDP Plan MIAMI 942372 (2K)

BVAP in District 6 10.6% 8.2% 8.2% 46

BVAP in District 8 10.0% 10.4% 10.3%


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were in the benchmark district but not in the new district must be given the ability to elect a white Democrat (br. at 13-21). This Court directed that the minorityopportunity district not run from Jacksonville to Daytona Beach, but be limited to Duval County.

No case supports the contention that the Senate must create

Democratic districts in Saint Augustine, Palatka, and Daytona Beach. Experts agree that “candidates of their choice” does not mean simply “Democrats.” Nathanial Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 226 (2007) (“If the new [reauthorized Section 5] is going to be successful (let alone upheld as constitutional), it cannot be seen as a tool for the systematic furtherance of certain partisan interests.” (footnote omitted)). Thus, the fact that Districts 6, 7, and 8 do not guarantee victory for Democrats does not violate the Constitution‟s minority protections. The FDP‟s own alternative plan does not transform Districts 6, 7, and 8 into majority-minority districts. It merely makes two of them more Democratic than in the Senate plan. 16

16

Although the FDP now argues that the Jacksonville-to-Daytona Beach configuration “can potentially be justified” (br. at 13-14), it previously had mocked that configuration. See Br. of FDP 23, In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Fla. Mar. 9, 2012) (No. SC12-1) (“This district is one of the least compact among all of the districts . . . as it winds in and out of the Jacksonville area with awkward protrusions in various directions to grab pockets of minority voters.”); see also id. at 27, 40, 44, 45. MIAMI 942372 (2K)

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The FDP‟s challenge to District 7 makes little sense. First, that district— consisting of three intact counties—remains unchanged from the prior plan, and should not be subject to challenge at all.

Next, the FDP states that, in the

benchmark district (numbered District 14), blacks “have consistently been able to elect their preferred candidates” (br. at 17). That district, however, is represented by Senator Oelrich, a white Republican. Before Senator Oelrich was elected, it was represented by Senator Rod Smith, a white Democrat.

Nothing but his

affiliation with the Democratic Party suggests that Senator Smith was the AfricanAmerican candidate of choice, and the Florida Constitution does not secure against diminishment in the ability of white Democrats to be elected.

It protects

“majority-minority districts” and “other historically performing minority districts.” Op. at 62. In Northeast Florida, that district has been preserved. The opponents argue that the boundary between Districts 6 and 8 advances partisan objectives, but they point to nothing but the partisan compositions of the districts. In fact, it is the opponents‟ configuration of districts in this region that was engineered to promote Democrats. See infra Parts III.B & III.C. The Coalition‟s suggestion that the Legislature drew District 8 with the intent to favor Representative Hukill is easily refuted. Former Representative Pat Patterson (R) is also a candidate for District 8, and the local newspaper clearly does not consider District 8 to be a gift to Representative Hukill: “One of Florida‟s MIAMI 942372 (2K)

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most competitive state Senate races just got even tougher.”

Derek Catron,

DeLand’s Patterson Announces Run for New State Senate Seat, DAYTONA BEACHNEWS JOURNAL, Mar. 20, 2012. In fact, the data show that new District 8 is a competitive district:

President Obama received 50.4% of the vote.

The

Republican, whether Hukill or Pattereson, will face Volusia County Chair Frank Bruno (D) in what promises to be a close election. Finally, District 8 satisfies the constitutional requirement of compactness. Collectively, its compactness scores are outside the range the Court considered low. Each of the nine districts the Court identified as mathematically non-compact had a Reock score less than 0.25 and an ACH score less than 0.50. District 8 has a Reock score of 0.23 but an ACH score of 0.73. Visually, its shape was influenced by changes made in northeast and central Florida, and by the Senate‟s desire to respect county integrity to the extent possible. Thus, the Senate preserved whole all counties immediately north of District 8—Clay, Putnam, Alachua, St. Johns, Bradford, and Flagler. And while the boundary between Marion and Putnam Counties and the Ocala city line are not straight, the Legislature‟s choice to utilize these obvious political boundaries is not unconstitutional. Op. at 86 (“Thus, if an oddly shaped district is a result of this state‟s „irregular geometry‟ and the need to keep counties and municipalities whole, these explanations may serve to justify the shape of the district in a logical and constitutionally permissible way.”). In fact, MIAMI 942372 (2K)

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District 8‟s shape and compactness scores are similar to a number of House districts, including Districts 35 (0.29/0.74) and 27 (0.35/0.66). District 8 is larger than the House districts, but compactness does not mean “small in size.” Op. at 78. The Coalition‟s new plan divides three counties in the region—Clay, Marion, and Volusia—while the Senate splits only two. The FDP believes that its plan keeps Volusia County whole (br. at 19), but it does not. The Coalition boasts that, in its new plan, Daytona Beach “naturally remains whole” (br. at 19), but in its plan, Clay County is split, as is the City of Edgewater in Volusia County. The Coalition‟s District 6 is also less compact, both visually and mathematically, than the Senate‟s.

And the Coalition claims that its 51.1% Democratic district is

“competitive,” but complains that the Senate‟s district, which is 51.2% Republican, was “gerrymander[ed] for partisan gain” (br. at 19). Clearly, it was not. 3. Central Florida In the original plan, District 10 included a half-mile wide passageway between District 12, a black opportunity district, and District 14, a new Hispanicmajority district. To the east of this passage, District 10 expanded into an “oddshaped appendage” between Districts 12 and 14 that contained one incumbent‟s residence, but stopped short of another‟s. Op. at 158. Noting that the Senate had not justified the appendage through a functional analysis of District 12, the Court

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invalidated District 10 “because it is visually non-compact with an appendage that reaches out to clearly encompass an incumbent.” Op. at 161. The revised plan corrects the deficiencies this Court identified. Consistent with the Court‟s analysis, the Senate performed a functional analysis and fundamentally redrew these districts. While the revised plan has a densely populated territory between the two minority districts (for reasons explained below), it makes several fundamental changes: First, the revised plan eliminates the half-mile wide passageway between the minority opportunity districts. Thus, the district is no longer united by a hair‟sbreadth connector, but extends to the east along county boundaries. Second, the revised plan adheres more closely to county boundaries. Unlike old District 10, new District 13 consistently uses the Orange and Brevard County boundaries on the north and the Orange County boundary on the south. Third, because it utilizes the boundary between Orange and Seminole Counties, the revised plan pairs two Republican incumbents.

Senator Andy

Gardiner, the Majority Leader, and Senator David Simmons, the Majority Whip, both reside in new District 13. And that district contains only 11.0% of benchmark District 9, which Senator Gardiner currently represents, and 25.0% of benchmark District 22, which Senator Simmons currently represents.

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Fourth, the revised plan makes the black opportunity district more compact and confines it to a single county, allowing Seminole County (divided in the original plan) to remain whole. The functional analysis showed that this minorityopportunity district will retain its voting strength without a narrow extension into Seminole County. 17

Both compactness scores increased—from 0.24 to 0.40

(Reock) and from 0.41 to 0.74 (ACH). Some territory remains between the two minority districts because a different configuration would threaten minorities‟ ability to elect their preferred candidates. The Senate considered many alternatives and conducted the functional analyses the Court prescribed, and concluded that the addition of this territory to one or both minority districts would jeopardize the ability of minorities in those districts to elect their preferred candidates. The appendage in the original plan contained 158,044 people—roughly the size of a House district—with a voting-age population 76.7% white, and only 6.1% black and 13.5% Hispanic (App. 22). To

17

In revised District 12, Alex Sink (D) would have received 61.9% of the vote in the 2010 gubernatorial election, Barack Obama (D) would have received 66.3% in the 2008 presidential election, and Jim Davis (D) would have received 51.5% in the 2006 gubernatorial election. Further, 51.9% of registered voters are Democrats, 54.4% of registered Democrats are black, and 84.1% of black registered voters are Democrats. In the last general election, 50.4% of registered voters who voted were Democrats, 57.2% of those Democrats were black, and 88.9% of black voters were Democrats. Black voters would also have comprised 56.2% of the Democratic primary (AG App. B-2). MIAMI 942372 (2K)

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add this population (or a significant part of it) to either minority district would significantly alter its demography. District 12. As the functional analysis demonstrated, the voting strength of African-Americans in Central Florida‟s black opportunity district was already weaker than in the other five districts that historically have performed for black voters.

In benchmark District 19, only 47.7% of voters in the 2010 primary

election were black, only 47.4% of voters in the 2010 general election were black, and only 43.0% of registered Democrats were black. Benchmark District 19 also included a significant Hispanic population that was primarily Democratic, but much of this population was incorporated into new District 14 to afford Hispanics an opportunity to elect the candidate of their choice.

This shift required a

reconfiguration of benchmark District 19 and counseled against adding the largely white population of the appendage into newly reconfigured District 12. As this Court explained, the Florida Constitution now prohibits a diminishment in the ability of minorities to elect the candidates of their choice. Under tier one, a redistricting plan may not “leave a minority group less able to elect a preferred candidate” in a district that “previously provided minority groups with the ability to elect a preferred candidate.” Op. at 61-62. While this provision permits a “slight change in percentage of the minority group‟s population in a given district” as long as the change “does not . . . have a cognizable effect on a MIAMI 942372 (2K)

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minority group‟s ability to elect its preferred candidate,” id. at 62, the voting ability of minorities in performing districts must remain “commensurate” to their voting strength in the benchmark districts. Id. at 127. A functional analysis indicated that the addition of a largely white population to old District 12 would reduce minority voting ability (AG App. B9). District 14.

To add the appendage to old District 14 would decrease

the likelihood that Hispanics will be able to elect their preferred candidates. First, Hispanics in Central Florida are less cohesive than black voters: in old District 14, 51.6% of Hispanic registered voters were registered as Democrats, while 15.1% were registered as Republicans (AG App. B9). Second, their voter turnout rates are not robust. While 48.1% of registered Democrats in Old District 14 were Hispanic, only 29.6% of Democrats who voted in the 2010 primary election were Hispanic (id.). Perhaps for these reasons, no legislative district with a Hispanic voting-age population (“HVAP”) less than 49.8% currently elects an Hispanic legislator. For example, House Districts 120 (47.8%), and 106 (47.0%) and Senate Districts 34 (46.4%), 39 (43.0%), and 35 (42.9%) do not elect Hispanic members.

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The retention of territory between two minority districts finds additional support in the nearly identical designs in the proposals of the Coalition and Representative Evan Jenne (D):18

(Figure 5: Central Florida in the revised plan (left), the Coalition Plan (center), and the Jenne Plan (right)) In this respect, the revised plan resembles the alternative proposals. In all three— and unlike the original plan—the district is not connected through a narrow passageway, the black opportunity district is compact and respects political boundaries, and two incumbents find themselves paired in one district that includes small shares of their current districts.

The competing proposals, however,

needlessly divide Seminole County, and the Coalition plan weakens the proposed 18

Representative Jenne introduced his proposal in the House Redistricting Committee. See H.R. Comm. on Redist., Amend. 724771 to SJR 2-B (Mar. 27, 2012) (on file with comm.). MIAMI 942372 (2K)

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Hispanic district (from 50.0% HVAP to 43.7%) to a point at which it is unlikely to elect the candidates preferred by Hispanic voters. The revised plan responds to the Court‟s concern that Central Florida districts were drawn to preserve incumbents‟ districts. It employs a functional analysis to harmonize tier-one and tier-two standards to the maximum extent and provides two diverse minority groups in Central Florida with opportunities to elect the candidates of their choice. The opponents’ objections are meritless. The Coalition argues that District 13 retains the “exact same appendage” that the Court found objectionable (br. at 20).

But much has changed.

As

discussed above, the Senate closed the half-mile wide passageway, redrew the district along county boundaries, paired two incumbent Republican leaders, placed Senator Gardiner in a district that includes only 11.0% of his former constituency, and conducted a functional analysis of minority voting ability. The opponents ignore these facts.

They first claim that the pairing of

Senators Gardiner and Simmons is not a “true incumbent pairing” because Senator Simmons will move and seek reelection in District 10 (Coalition br. at 21). The intent of the Constitution, however, is not to force pairings that terminate careers in public service, but to ensure incumbent-blind redistricting. And the degree of disruption caused to the incumbents in Districts 10 and 13 shows that incumbent MIAMI 942372 (2K)

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protection did not motivate the Senate‟s decisions. To force one incumbent to seek reelection in a district that sheds 89.0% of his past constituency, and force another incumbent to leave his home and move to a different county, is not incumbent protection. The Coalition claims that the appendage contains “190,000 constituents as the anchor of the district” (br. at 22). But this proves the Senate‟s point. The size of this overwhelmingly white population is the very reason it cannot be incorporated into either of the adjacent minority districts. The figure below depicts the racial composition of Central Florida (blacks depicted in red, and Hispanics in blue), with district boundaries superimposed:

(Figure 6: Racial composition of Central Florida in the revised Senate plan (left), the Coalition‟s new plan (center), and the FDP‟s plan (right))

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While the FDP curiously suggests that the Senate might not have performed a functional analysis (br. at 38), the functional analysis was distributed and extensively discussed in committee before the Attorney General submitted it to this Court (AG App. B8-B41, G268). The Coalition‟s own alternative plans do not remedy the supposed defects. The Coalition‟s first plan included the “exact same appendage” which it now regards as irrefutable evidence of incumbent protection. So did Representative Jenne‟s. So did the amendments offered by Senator Chris Smith (D). See Fla. S. Jour. 87 (Extra. App. Sess. 2012). The new Coalition plan trims the appendage slightly, shifting whites into a minority district, but the core of the appendage remains. The Coalition plan also allows Senator Gardiner and Senator Simmons to pursue reelection in separate districts. Senator Simmons could move into east Seminole County and seek reelection in Coalition District 16. While both Coalition alternatives maintain the “appendage,” the FDP incorporates it into the adjacent black-opportunity district, and the resulting diminishment is obvious.

A functional analysis shows that minority voting

strength in the FDP‟s proposed District 12 is dramatically weaker than in the benchmark plan. For example, the share of Democratic primary voters who are black falls from 47.7% in the benchmark district to 38.7%. The combined share of Democratic primary voters who are black or Hispanic falls from 62.5% to 44.4%. MIAMI 942372 (2K)

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In fact, minority voting strength in the FDP‟s District 12 more closely resembles that in benchmark District 6, which has a BVAP of 30.4% but elects a white Democrat (Bill Montford) who defeated a black Democrat in the 2010 primary election. The FDP‟s alternative helps demonstrate that the Senate plan is drawn to respect minority voting rights. 4.

Southwest Florida

This Court held that old District 30 was not compact, did not use political and geographical boundaries where feasible, and was drawn with an intent to favor an incumbent. Op. at 162. It noted that the district divided the City of Bonita Springs and severed Sanibel Island from the mainland. Id at 163. The Court also noted that 84.9% of the district‟s population came from the predecessor district. Id. But the Court recognized that the VRA bars substantial changes to the district boundary in Collier County. Id. at 164 (“District 40 . . . is in a covered county under Section 5 of the VRA. . . . With the exception of the boundary it shares with District 40, District 30 does not need to be configured to avoid diminishing minority voting strength.”). Because benchmark District 39 afforded protected minorities in Collier County (a covered county) the ability to elect the candidates of their choice, to avoid denial of preclearance any new plan must afford minorities who reside in the covered counties the same ability. See id. at 121 (“Because

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Section 5 applies only to the five covered counties, it protects from retrogression minority voting strength in only those counties.”). The revised plan corrects these defects while avoiding retrogression in Collier County. To the extent permitted by Section 5, new District 23 is visually compact and its scores increased from 0.19 to 0.32 (Reock) and from 0.56 to 0.67 (ACH). And the new district‟s boundaries divide no municipalities. The new boundary resembles the Coalition‟s proposal, except that the Coalition‟s divides Lehigh Acres:

(Figure 7: Southwest Florida in the revised plan (left) and the Coalition Plan (right)) No opponents have objected to these revised districts. MIAMI 942372 (2K)

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Southeast Florida

This Court held that Senate Districts 29 and 34 were not compact and disregarded political and geographical boundaries. Op. at 165. It explained that the Senate had not performed a functional analysis, and that it was possible to achieve compactness while preserving minority voting strength.

Id. at 169. The

Court also concluded that District 34 was designed to preserve adjacent District 29 as a Republican district in a largely Democratic region, while “logical, compact districts” would have produced “five Democratic districts.” Id. at 170-74. The revised plan addresses these deficiencies. The revised plan creates a compact majority-minority district entirely within Broward County. In new District 31, which has a BVAP of 50.1%, Alex Sink (D) would have received 80.4% of the vote in the 2010 election, Barack Obama (D) would have received 82.0% in the 2008 election, and Jim Davis (D) would have received 75.3% in the 2006 election (AG App. B11). Further, 65.3% of registered voters are Democrats, 58.8% of registered Democrats are black, and 84.6% of black registered voters are Democrats (id.). In the last general election, 70.2% of voters were Democrats, 62.1% of those Democrats were black, and 90.0% of black voters were Democrats. Blacks were 61.2% of Democratic primary voters (id.). New District 31 is as likely as the benchmark district to afford black voters the

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ability to elect their preferred candidates, and does not “eliminate” a majorityminority district. See Op. at 62.19 The new majority-minority district is more visually compact than its Coalition counterpart. In the Coalition plan, District 29 contains two claws that capture distant populations in Palm Beach and Broward Counties and unite them through sparsely populated agricultural and conservation areas. Coalition District 29 has a perimeter of 382 miles and a length of 99 miles; new District 31 has a perimeter of 56 miles and a length of 17 miles. The revised plan also renders the general region far more compact.

Its districts in Palm Beach and Broward

Counties contain fewer hooks and arms than the Coalition Plan. Mathematical measures of compactness confirm this conclusion. Under the Coalition plan, the

19

While the BVAP is reduced from 60.7% in the benchmark district to 50.1%, new District 31 remains a majority-minority district, and the functional analysis indicates that it is as likely as the benchmark district to elect the candidate preferred by minority voters. This reduction is comparable to the reductions in House Benchmark Districts 14 (from 59.6% to 50.7%), 39 (from 68.3% to 52.1%), and 103 (from 70.7% to 52.1%), which this Court upheld, see Op at 108. In general, reductions in BVAP in districts with high BVAPs do not have the same harmful effect on the ability of minorities to elect candidates of their choice as reductions in districts with lower BVAPs. The minority-preferred candidate‟s probability of success approaches certainty long before BVAP approximates 100%. See David L. Epstein & Sharyn O‟Halloran, Trends in Minority Representation, 1974 to 2000, in THE FUTURE OF THE VOTING RIGHTS ACT 65-66 (David L. Epstein, et al., eds. 2006). A far more significant difference exists between 40% and 50% BVAP than between 60% and 70%. MIAMI 942372 (2K)

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six districts in the region have average scores of 0.36 (Reock) and 0.75 (ACH). Op. at 172-73. The revised planâ€&#x;s scores average 0.41 and 0.81. Finally, the districts in the revised plan are far more compact than in the original:

(Figure 8: Southeast Florida in the original plan (left) and the revised plan (right)) The revised plan is also more respectful of political boundaries. It includes only one district (34) that crosses the Palm Beach/Broward County line, compared to two in the Coalition Plan and three in the original plan. The revised plan splits

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only three Palm Beach County municipalities, compared to six in the Coalition plan and eight in the original plan. 20 The revised plan not only complies with tier-two standards, but also creates a new opportunity for minority voters in new District 27. That district includes much of the population which, under the benchmark plan, resided in majorityminority District 29. New District 27 is a 52.0% combined majority-minority district: it has a BVAP of 25.7% and an HVAP of 27.4%, with a 1.1% overlap of those who identified themselves as both black and Hispanic. It therefore affords minorities an opportunity, either by a coalition between minority groups or with crossover support from white voters, to elect the candidates of their choice. At the same time, new District 27 complies with tier-two standards: among all Senate districts, its Reock and ACH scores rank second and fourth, respectively. Unlike the original plan, in which one of the five districts in this region leaned Republican in a “largely Democratic� region, Op. at 170-74, all five districts are now Democratic. The table below identifies the vote shares of Alex Sink, Barack Obama, and Jim Davis, as well as voter-registration affiliations:

20

While new District 34 includes a coastal component in Broward County, the addition of this territory to new District 31 would eliminate a majority-minority district and diminish the ability of minorities in new District 31 to elect their preferred candidates. That part of District 34 that lies in Broward County contains 155,213 people, with a voting-age population that is 81.4% white (App. 23). MIAMI 942372 (2K)

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District

Sink

Obama

Davis

25 27 29 31 34

58.4 66.0 61.0 80.4 55.2

59.0 69.2 62.0 82.0 57.0

60.2 65.1 61.4 75.3 57.1

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Republican Registration 31.0 23.3 27.0 14.1 32.6

Democratic Registration 43.2 51.7 47.0 65.3 41.9

(AG App. B10-11). In addition, the creation of compact districts had disruptive effects on incumbents. Senator Ellyn Bogdanoff (R) resides in new District 34, which, as the table above illustrates, is distinctly Democratic, and Senator Maria Sachs (D) resides in new District 25, see Bill Kaczor, Democrats to Offer Florida Senate Redistricting Plan, PALM BEACH POST, Mar. 26, 2012, which derives only 30.7% of its population from the benchmark district she currently represents. When the revised plan debuted, Representative Joe Abruzzo (D) declared his candidacy for District 25, prompting reports that Senator Sachs might pair herself with Senator Bogdanoff and seek reelection in District 34. See Brandon Larrabee, Senators Face Decisions on Careers, NAPLES DAILY NEWS, Mar. 23, 2012. The new districts preserve and even enhance the ability of minorities to elect the candidates of their choice, and achieve superior compactness and respect for political boundaries. No opponent objects to these districts.

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C. The Opponents’ Objections to Districts this Court did not Invalidate are Unfounded, and Many Address Districts That are Unchanged from the Prior Plan As shown above, the opponents have not challenged at all the Senate‟s changes to five of the eight districts this Court found invalid (1, 3, 29, 30, and 34). They do object, however, to various districts that this Court did not invalidate. Although some objections concern districts that have been changed from the prior plan, others are to unchanged districts and therefore, as discussed in Section I, should not be considered now. We address these below. Districts 17, 19, and 22. The Coalition objects to three districts in the Tampa Bay area (br. at 23-26). Other than their numbers, however, these three districts are unchanged from the original Senate plan. The opponents could have objected in the initial proceeding, but did not. Res judicata, this Court‟s prior mandate, and the constitutional right of the Legislature to correct any plan deficiencies, now bar these claims. Moreover, this Court expressly upheld District 17 (then District 15). The Court rejected the contention that District 15 was drawn with an intent to favor the incumbent, Op. at 175-76, and the Court‟s instructions to the Legislature for the extraordinary apportionment session did not include the Tampa Bay region. Id. at 189-90. Even if the Court were to revisit Tampa Bay and consider the opponents‟ claims, it should reject them. The Coalition alleges that the Legislature failed to MIAMI 942372 (2K)

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create “an additional influence district for Hispanics” (br. at 24), but this Court recognized that the VRA—and, by extension, the Florida Constitution‟s minority protection provisions—creates no legal entitlement to influence districts.

Under

Section 2, “[t]he showing of either an additional minority influence district . . . , as opposed to an actual majority-minority district, is insufficient,” Op. at 57, while Section 5 protects only “majority-minority districts” and “other historically performing minority districts,” id. at 62. The opponents pin their hopes on the Court‟s mere refusal to “rule out the potential” that a constitutional violation “could be established by a pattern of overpacking minorities into districts where other coalition or influence districts could be created,” id. at 108 (emphasis added). But (1) the opponents allege no pattern, and (2) the Court did not find one when the same Tampa Bay districts were before it in the original Senate plan, id. at 12627. Moreover, while the Court did not “rule out” the possibility of such a claim, it did not endorse it, either. The Court‟s cautious approach is proper: the United States Supreme Court has questioned whether extending protection to possible influence districts would violate the Equal Protection Clause:

“If § 2 were

interpreted to protect this kind of influence, it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions.” See LULAC v. Perry, 548 U.S. 399, 446 (2005) (plurality op.); see also Bartlett v. Strickland, 556 U.S. 1, 21-22 (2009) (plurality op.) (same as to coalition districts). MIAMI 942372 (2K)

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The Coalition does not contend that Hispanics would have any ability to elect the candidates of their choice in alternative District 17: Hispanics, though 25.5% of the voting-age population, would be 5.0% of the Democratic primary and 4.6% of the Republican primary. Indeed, Hispanics have substantial influence in the Senate‟s own District 17, with a 19.0% VAP in a competitive district. The opponents‟ suggestion that including black and Hispanic voters in the same district (District 19) disadvantages one or the other is contrary to the views of the Department of Justice. In 1992, the Department of Justice denied preclearance to a Senate plan that failed to cross Tampa Bay to create a minority district (App. 24-27). It noted: “With regard to the Hillsborough County area, the state has chosen to draw its senatorial districts such that there are no districts in which minority persons constitute a majority of the voting age population.”

(Id.

(emphasis added.) Thus, DOJ deemed blacks and Hispanics in the Tampa Bay area as politically cohesive. The Senate is not required now to remove Hispanic voters from District 19 and run the risk of another preclearance objection. The opponents allege that District 17 is “visually non-compact” and was drawn with the intent to favor an incumbent, Coal. Br. at 25, but the Court rejected these arguments in the prior case. There, the Court found that “there are simply no objective indicators of improper intent” and that District 17 (then District 15) “is not oddly shaped or strangely contorted.” Op. at 175. Nothing has changed. MIAMI 942372 (2K)

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Contrary to the Coalition‟s allegation that there is “simply no explanation . . . for why District 22 crosses the bay” (br. at 26), there is a perfectly good one. Pinellas County has a population of 916,542—a little less than the ideal population of two Senate districts.

Thus, while Pinellas County may contain one whole

Senate district, the other must cross into Pasco County or Hillsborough County. In the Coalition‟s new plan, it crosses into Pasco County; in the revised Senate plan— as in the FDP‟s alternative—it crosses into Hillsborough County.

This is a

legitimate choice well within the Legislature‟s discretion. Moreover, in crossing into Hillsborough County, the Senate followed Interstate 275. In crossing into Pasco County, the Coalition drew a largely arbitrary line. District 14. The FDP (br. at 27-30) challenges District 14, a new Hispanic-majority district in Central Florida. The FDP did not challenge District 14 in the prior proceeding, Op. at 161 n.52 (“[N]o party challenges District 14.”), and its claim is therefore barred. On the merits, too, the claim fails. This Court did not identify District 14 in the original Senate plan as mathematically non-compact, Op. at 129, and its compactness has improved since (from .25/.57 to .26/.64).

The Court noted that District 14 was not visually

compact, id., but it discussed District 14 in detail and found no infirmity, id. at 156-59. Indeed, the Legislature is fully authorized to establish new majorityMIAMI 942372 (2K)

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minority districts that afford minorities a legitimate opportunity to elect candidates of their choice. While the FDP would reduce HVAP in District 14 to 46.5% (the Coalition would reduce it to 43.6%), no state legislative district in Florida today— House or Senate—elects the Hispanic candidate of choice with an HVAP below 49.8%, and a functional analysis shows that Hispanic voting strength is weaker in both alternatives than in the Senate‟s district. 21 Given these facts, and despite the FDP‟s unsupported assertion (br. at 29) that its alternative would “still protect minority voting rights,” the FDP has not shown that a weaker district would in fact elect the Hispanic candidate of choice. Marginal improvements in compactness would hardly compensate for the risk to the ability of Hispanics to elect their candidates of choice.

21

The following summary of data compares the proposed Central Florida Hispanic district in each plan. The first number in each set refers to the Senate‟s District 14, the second number refers to the FDP‟s proposed district, and the third refers to the Coalition‟s: Alex Sink (61.2/57.7/59.5); Barack Obama (66.5/63.5/64.3); Jim Davis (49.6/47.6/47.9). Registered voters who are Democrats: 47.1/45.1/44.7. Registered Democrats who are Hispanic: 47.5/46.4/43.8. Registered Hispanics who are Democrats: 51.5/51.6/51.3. Democratic voters in the 2010 general election: 46.7/43.9/43.8. Democratic voters who were Hispanic: 36.6/35.7/34.1. Hispanic voters who were Democrats: 56.2/56.1/55.0. Democratic primary voters who were Hispanic: 28.3/28.0/26.6. MIAMI 942372 (2K)

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District 18. Aside from its district number, District 18 (prior District 20) is unchanged from the original plan. The Coalition‟s claim is therefore barred. It also fails on the merits. The Coalition argues that District 18 is not compact. Visually, District 18 is quite compact, and differs little from District 18 in the Coalition‟s new plan. Mathematically, District 18‟s compactness scores (.37/69) are superior to the scores of six districts in the Coalition‟s new plan. The Coalition argues that District 18 does not utilize political and geographical boundaries; but it consistently follows county boundaries. In Pasco County, where District 17 enters to reach its ideal population, the boundary follows State Road 52—a geographical boundary. Op. at 91. While the Senate‟s district does not include the northeast corner of Sumter County, this was done to equalize its population. The northeast corner of Sumter County contains more than 46,000 people. For the same reason, the Coalition cuts off the southwest corner of Pasco. The Coalition‟s suspicion that District 18 was drawn to favor Representative John Legg‟s election to the Senate is unfounded. To the contrary, District 18 pairs Representative Legg with Wilton Simpson (R), a businessman who has received the endorsement of Senate President Mike Haridopolos (R).

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See Lee Logan,


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Wilton Simpson Picks Up Backing of Outgoing Senate Prez Haridopolos, TAMPA BAY TIMES, Mar. 14, 2012. Districts 21 and 26. The Coalition argues that an amendment by Senator Latvala was designed to unpair two candidates—one former and one current House member—and thus to favor incumbents. Even if House members are “incumbents” for purposes of the Senate plan, all objective evidence indicates that the intent of the amendment was to restore Plant City to a district based in Hillsborough County.

This is a

legitimate and constitutional objective that is well within the Legislature‟s discretion. Mere effect does not equate to illicit intent, and the Constitution does not prohibit the use of the amendment process to accomplish legitimate and constitutional objectives. On March 17, 2012, the Senate Reapportionment Committee released the committee substitute that later became SJR 2-B. On March 19, Dan Raulerson, the Mayor of Plant City, sent a letter to the Chairman of the Committee, noting that the committee substitute placed Plant City, which is located in Hillsborough County, into a district contained chiefly in Polk County. Mayor Raulerson requested that Plant City be reunited with Hillsborough County as the only incorporated area in the eastern part of that County (App. 28).

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Senator Latvala, responding to the concerns of Mayor Raulerson, the City Commission, the County Commission, the Chamber of Commerce, and his constituents (AG App. G597), raised this issue at committee meetings on March 20 and 21 before sponsoring a floor amendment (id. G324-36, G596-98, G796-802).22 Senator Latvala argued that the people of Plant City are “very interested in being represented from within their county,” and explained that his amendment, which affected four districts, enhanced the compactness scores of the region (id. G798800).

In support of the amendment, Senator Norman explained that he had

“received a passionate call from the Mayor of Plant City, urging this Legislature to please consider bringing Plant City back into Hillsborough County” (id. G811). The Senate adopted the amendment, 20-15 (id. G830). The amendment shifted Plant City from District 15 to District 24, which is contained wholly in Hillsborough County.

As a result, District 24 was

overpopulated by about 50,000 people, and District 15 was underpopulated by the same amount.

To equalize these populations, the district boundaries of four

districts—Districts 24, 15, 21, and 26—rotated clockwise, each district receiving 22

The Coalition‟s claim that the “amendment had never been mentioned, much less discussed, by the Senate Committee on Reapportionment” (br. at 30) is wrong (AG App. G597-G598 (“I have had a lot of local feedback . . . from the county commissioner from out there and the city commission and the Mayor and the Chamber of Commerce, . . . and, you know, very well may have an amendment on that tomorrow.” (statement of Sen. Latvala)); see also id. G323-G325). MIAMI 942372 (2K)

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about 50,000 people from the next until the last rotation removed 50,000 people from overpopulated District 24. As illustrated below, District 15 moved further south into Polk County, District 21 moved further south into Highlands County, and District 26 moved North into Hillsborough County:

(Figure 9: The Plant City rotation before (left) and after (right) the amendment) With the transfer of Plant City to District 21, this rotation was the one natural and obvious method of equalizing populations—and the opponents do not contend otherwise. It also enhanced the compactness of the four districts, increasing their average Reock score from .37 to .41 and their average ACH score from .75 to .77.

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The opponents nevertheless contend that the Senate‟s actual intent must have been to unpair Representative Denise Grimsley and former Representative Bill Galvano, both of whom are candidates for the Senate and were residents of District 26 in the committee substitute. The opponents note that, as District 21 shifted south into Highlands County, it incorporated Representative Grimsley‟s home near Sebring. The opponents, however, offer no alternative method of eliminating the population disparities created by removing Plant City from District 21.

The

rotation of District 21 into District 26 naturally occurred in Highlands County, which was already divided, and not in Glades or Hardee County, which were not. And within Highlands County, the rotation naturally took place around Avon Park and Sebring, which were northernmost. Together with their environs, Avon Park and Sebring contained the requisite population of approximately 50,000 people. The opponents, therefore, ask the Court to disregard the evidence of a legitimate and constitutional purpose and simply equate effect with intent. But this Court has rejected such an approach: “by its express terms, Florida‟s constitutional provision prohibits intent, not effect.” Op. at 43; see also id. (“We “recognize that any redrawing of lines, regardless of intent, will inevitably have an effect on the political composition of a district and likely whether a political party or incumbent is advantaged or disadvantaged.”). MIAMI 942372 (2K)

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In fact, the Court rejected a similar challenge to House District 99, which the Coalition argued was designed to place a black incumbent who had provoked House leadership “one block outside of his current district” and “pit him against another Democratic incumbent.” Op. at 118. Rather than indulge the opponents‟ cynicism, the Court concluded that the new district “may be incidental to widesweeping changes made . . . in this region,” and it found “no objective indicia of intent to disfavor an incumbent on this record.” Op. at 118-19. The Court rejected a similar challenge to District 15 in the original Senate plan, which the Coalition claimed was “configured to favor an incumbent by removing from his district parts of Hillsborough County because he is unpopular there.” Op. at 175. Noting that the district was “not oddly shaped or strangely contorted,” the Court found “no objective indicators of improper intent.” Id. The amendment did not result in bizarre shapes and boundaries or materially alter the political composition of the affected districts. Indeed, the Coalition‟s own alternative plans do not pair Representatives Grimsley and Galvano.

And it is

simply implausible that the Legislature would pair two incumbent leaders but take pains to unpair two candidates who are not even incumbent Senators.

If the

inquiry extends to House members, it is relevant that the Legislature did nothing to unpair the many House members who are paired as Senate candidates.

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The Coalition emphasizes that the two candidates were unpaired by an amendment (br. at 29). Nothing inherent in an amendment signals improper intent. The Legislature frequently enacts important policies through amendments. Indeed, amendments are the appropriate vehicle by which members other than the sponsor contribute to legislation. The Constitution neither bars nor cast suspicion on them, especially where it is an obvious response to public comment. If it did, it would discourage the open consideration of different redistricting proposals—a process this Court endorsed. See Op. at 124.23 The FDP suggests (br. at 25) that District 21 is not compact and does not utilize political and geographical boundaries. But the FDP concedes that District 21 is “relatively compact according to quantitative measures,” and a visual inspection shows that it differs little from some House districts that this Court upheld, including Districts 19 and 21. At its narrowest point, District 21 is a whole county (Okeechobee County). It follows county boundaries along most of its perimeter, deviating only to ensure ideal populations for itself and adjacent 23

While the Coalition notes that the effect on Representatives Grimsley and Galvano was mentioned on the Senate floor, “the fact that the Senate or House . . . may . . . have had the incumbents‟ addresses is not determinative of intent . . . .” Op. at 48. This Court explained that “the inquiry focuses on whether the plan or district was drawn with this purpose in mind”—not whether it was drawn with knowledge of its effects. Op. at 45; cf. Op. at 103 (“We also reject the suggestion that once the political results of the plan are known, the Legislature must alter the plan to bring it more in balance with the composition of voters statewide.”). MIAMI 942372 (2K)

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districts.

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The Constitution requires adherence to political or geographical

boundaries only “where feasible.” Art. III, § 21(b) Fla. Const. Senator Latvala‟s amendment implemented a legitimate purpose in an appropriate manner. This Court should reaffirm its conclusion that effect alone does not establish intent and find that the opponents have not carried their burden. District 32. This Court has already rejected the opponents‟ challenge to District 32 (prior District 25). Op. at 176. The opponents are therefore barred from raising this challenge. But even if they were not, their objection fails. The opponents‟ renewed challenge is a combination of unpersuasive allegations. First, District 32 was not drawn, as the opponents suggest (Coalition br. at 32-33, FDP br. at 24) to protect communities of interest. The district enters Indian River and Palm Beach Counties not for partisan purposes, but because District 16 would be over-populated if it included all of Indian River County, and District 25 would be over-populated if it included the remainder of Palm Beach County. It was appropriate, therefore, to unite the remaining territories in a single district, rather than extend two districts from the interior of the state to the coast. The Coalition argues that District 32 was drawn to be a safe Republican district, but the Coalition‟s own depiction of partisan affiliation disproves the argument (br. at 34). It shows that most of the blue areas, which depict high MIAMI 942372 (2K)

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concentrations of Democratic voters, are within District 32—not outside of it. In any event, it shows that there are red areas and blue areas on both sides of the line. The Coalition‟s allegations of partisan line-drawing are internally inconsistent. It alleges that the Legislature “pushed” District 32 into Indian River County to make District 32 Republican (br. at 33). It also argues that by adding the Indian River voters to District 32, District 16 became Republican. Id. at 35. If voters in Indian River are Republicans, their inclusion in one district and exclusion from another would not make both districts more Republican. The Coalition states that District 32 does not follow Interstate 95 (br. at 34), but this is false. District 32 follows Interstate 95 or the Florida Turnpike for more than 35 miles, deviating from these highways only (1) to keep Fort Pierce whole, and (2) to attain the ideal population. District 32 does not avoid a “Democratic pocket of voters” for partisan purposes: it avoids a heavy concentration of voters which, if added to District 32, would cause its population to exceed the ideal. This Court did not identify District 32 (then District 25) as either visually or mathematically non-compact. Op. at 128-29 (identifying districts that are visually or mathematically non-compact). It did not direct the Senate to redraw the district. The Court should adhere to its earlier opinion and uphold District 32.

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District 39. District 39 underwent only de minimis changes between the original and revised Senate plans—and none in Miami-Dade County—and therefore does not warrant challenge. Moreover, the opponents challenge District 39 without even mentioning that it is protected by Section 5 of the VRA (Coalition br. at 36-42; FDP br. at 30-34). Although they use derogatory redistricting buzzwords such as “grab,” “bulb,” “spindly,” and “pockets,” the Senate districts in Miami-Dade County carefully balance and preserve the voting-rights of diverse minority groups, as the VRA and the Florida Constitution require. The Court‟s original opinion recognized this careful balance. The opponents alleged that Districts 35 and 36 were drawn with the intent to favor the incumbents. The Court rejected the challenge, explaining that “[b]oth districts are defined by their surrounding districts, which include minority districts.” Op. at 177. The opponents now renew their assault from the west, asking the Court to transfer blacks from a black-opportunity district (District 39) into Hispanic districts. In Miami-Dade County, District 39 is identical to District 40 in the original Senate plan.

Moreover, the Court anticipated this challenge and rejected it:

“Significantly, District 40 includes three covered counties (Monroe, Collier, and Hendry Counties) for purposes of Section 5 preclearance under the VRA. District 40 reaches around District 37 and District 35 and necessarily affects the MIAMI 942372 (2K)

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configuration of the districts in the Miami-Dade County area.”

Op. at 178.

District 39‟s configuration is no less necessary now. District 39 includes all of Monroe and Hendry Counties and part of Collier County. Because these counties are covered by Section 5 of the VRA, see 28 C.F.R. pt. 51 app., the state must prove to the United States Department of Justice or a federal district court that the new districts do not diminish the ability of minorities who reside in these counties to elect the candidates of their choice. Op. at 121. Here, the 2002 benchmark district enabled blacks in Monroe, Collier, and Hendry Counties to elect their candidate of choice. This ability must be preserved, even if the district must obtain minority populations from non-covered counties.24 To preserve the ability of blacks in the covered counties to elect their preferred candidates, District 39 must incorporate black populations in MiamiDade County. The two “appendages” to which the opponents object are designed to do precisely that. They ensure that the black population is sufficient to elect the candidates of their choice, and ensure that preclearance is not denied. The Coalition asks the Court to lop off the southern “appendage” as unnecessary, contending that this appendage ensures that the adjacent districts are 24

Ten years ago, the Department of Justice denied preclearance to a House district that did not extend from Collier County into Broward or Miami-Dade County in order to enable minorities in Collier to elect their preferred candidates. (App. 2934). MIAMI 942372 (2K)

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not “politically competitive” (br. at 38).

The adjacent districts, however, are

existing, performing Hispanic districts, where Hispanics have historically had the ability to elect the candidates of their choice. In southeast Florida, Hispanics and blacks are not politically cohesive, and generally prefer different candidates. To add the black Democrats in the southern “appendage” to a Hispanic Republican district to make that district “politically competitive” would subvert the ability of Hispanics to elect the candidates of their choice, in violation of Section 2 of the VRA and the Florida Constitution.

See Art. III, § 21(a), Fla. Const.

The

Constitution does not require competitive districts. Op. at 99. It certainly does not require them when the ability of minorities to elect their preferred candidates hangs in the balance. The Coalition‟s latest alternative eliminates the southern “appendage” and adds it to District 37—a district where Hispanics have been able to elect their preferred candidates. The effect is to convert District 37 into a Democratic district, ensuring defeat to the Hispanic-preferred candidate. See infra Part III.B. The Coalition boasts (br. at 41) that its alternative plan “makes District 37 a competitive Democratic district rather than a solidly Republican district.” (According to the Coalition, 54.4% Democratic is “competitive,” but 55.5% Republican is “solidly Republican.” Id.) This proves the Senate‟s point. The constitution requires the Legislature to protect the rights of minority voters and MIAMI 942372 (2K)

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prohibits the Legislature from favoring one party over another. The Coalition turns these provisions on their heads by gerrymandering districts to favor Democrats, at the expense of Hispanic Republicans. The Florida Constitution‟s new minority protection provisions protect all minorities who have the ability to elect, including Hispanics in three South Florida districts that historically have elected Hispanic Republicans. Further, any change that endangers the ability of Hispanics to elect their preferred candidates in at least three South Florida districts would prompt immediate litigation under Section 2 of the VRA. See infra Part III.B. District 39 was not drawn for partisan gain, but to navigate the complex interplay of voting-rights protections afforded to diverse minority groups. The opponents again look to the effect of the Senate plan on House incumbents to infer improper intent. They allege that District 39 was drawn to favor Representative Dwight Bullard (D), who, they claim, resides in the southern “appendage.”

The notion that a Republican Senate would violate the State

Constitution to help a House Democrat is not persuasive. It also ignores that Representative Ron Saunders (D), the House Minority Leader, and former Representative James Bush (D) have declared their candidacies for the same seat. The Coalition also claims that its District 39 is more compact (br. at 41), but its compactness scores are the same as in the revised Senate plan. MIAMI 942372 (2K)

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III.

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THE OPPONENTS’ ALTERNATIVE PLANS DO NOT PROVE THE INVALIDITY OF THE REVISED PLAN After the Senate‟s extraordinary session adjourned, the Coalition and the

FDP created new alternative proposals—the Coalition‟s third. As discussed below, neither plan establishes the invalidity of the enacted plan. Further, the objective evidence shows that both alternatives intend to favor the Democratic Party. A.

A “Better” Plan Does Not Invalidate the Enacted Plan

The Court‟s constitutional duty “is not to select the best plan, but rather to decide whether the one adopted by the legislature is valid.” Op. at 24. As this Court‟s analysis made clear, an alternative plan does not become relevant until the Court finds that the enacted plan does not meet constitutional standards. Then, its sole relevance is in determining whether the identified defects in the enacted plan could have been avoided, or whether they resulted from legal mandates or demographic necessities. See Op. at 98. An alternative proposal does not invalidate the actual plan, even if it is “better” or more nearly approximates constitutional ideals. The “court is not a referee in a contest involving apportionment plans,” In re Interrogatories by Gen. Assembly by House Resolution No. 1020, 497 P.2d 1024, 1025 (Colo. 1972), and redistricting is not a horserace between the Legislature, which is constitutionally charged with the enactment of a redistricting plan, see Art. III, 16(a), Fla. Const.,

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and interest groups. As the United States Supreme Court explained, a redistricting plan is not invalid merely because a “resourceful mind” hits upon a better plan. Gaffney v. Cummings, 412 U.S. 735, 750 (1973). “Involvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally „better‟ . . . .” Id. If the constitutionality of the actual plan depended on comparisons with alternative proposals, “any redistricting plan adopted by the Legislature would be subject to endless attack by those who are later able to devise what they contend is a superior plan that may indeed more closely approximate the constitutional commands.” Mayor of Cambridge v. Sec’y of the Commonwealth, 765 N.E.2d 749, 756 (Mass. 2002). “[N]o matter how compact in shape or equal in population the districts . . . may be, none will be so perfect that there will not be room for improvement . . . .” Preisler v. Kirkpatrick, 528 S.W.2d 422, 426 (Mo. 1975). Worse still, the Legislature‟s constitutional authority to redistrict would become illusory.

The constitutional timeline affords interest groups the last

opportunity to develop a redistricting plan, and thus enables them to “leapfrog” any plan the Legislature adopts. Here, the Coalition drew its response to the Court‟s opinion only after the Legislature adopted the revised Senate plan and the extraordinary apportionment session adjourned.

The Legislature cannot now

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to transform redistricting into a tournament, or place every competitor that enters the arena on equal footing with the Legislature.25 B.

The Coalition’s New Alternative Plan is Intended to Favor the Democratic Party

The Coalition repeatedly protests that its newest alternative plan—its third— is “natural” or “naturally occurring” (br. at 13, 19, 23). In fact, objective evidence shows that the Coalition‟s plan is anything but natural, and that it simply engineers Democratic districts. While the Coalition began with the revised Senate plan as its baseline, it then modified the boundaries where possible to create new Democratic opportunities and achieve a predetermined 20/20 partisan balance. The Coalition‟s intent is clear: First, although the Court admonished the Senate for creating bizarre districts unmoored from constitutional mandates, the 25

If modest improvements in a redistricting plan establish the invalidity of an earlier plan, the Coalition‟s new plan invalidates its own earlier plan. Yet the Coalition extolled the validity of its original plan, which both the revised Senate plan and the Coalition‟s new plan now overshadow. See Br. of the League of Women Voters of Fla., et al., at 3, In re Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly S181 (Fla. Mar. 9, 2012) (No. SC12-1) (“[The Coalition] submitted . . . redistricting plans . . . that demonstrated how the Legislature could have complied with the Florida constitution.”); id. at 12 (“The Coalition proposal was drawn in total compliance with the constitutional requirements in Article III, Section 21 . . . .”); id. at 18 (“[T]he Legislature‟s maps . . . must be invalidated with instruction to the Legislature to draw plans—like those already submitted by the Coalition—that comply with the overall goal of Article III, Section 21.”); id. at 48 (“The Coalition therefore respectfully requests that this Court . . . declare that the Legislature‟s . . . plans are invalid and instruct the Legislature to adopt lawful plans, such as those proposed by the Coalition.”). MIAMI 942372 (2K)

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Coalition‟s new plan does exactly the same in critical instances. Second, the Coalition modifies areas of the state where the Court found no invalidity—indeed, areas where the Court expressly upheld the original Senate districts. Third, the Coalition diminishes the ability of Hispanics in South Florida to elect the candidates of their choice, in violation of Section 2 of the VRA and state constitutional standards. In each case, the Coalition‟s line-drawing favors the Democratic Party. In SC12-1, the opponents argued that that the Constitution requires partisan balance, even if it involves the intentional manipulation of district lines. This Court rejected that argument: We reject any suggestion that the Legislature is required to compensate for a natural packing effect of urban Democrats in order to create a fair plan. We also reject the suggestion that once the political results of the plan are known, the Legislature must alter the plan to bring it more in balance with the composition of voters statewide. Op. at 103. The Coalition ignores this admonition. First: The Coalition created an L-shaped district in North Florida (District 6) that packs Republicans to create two adjacent Democratic districts (Districts 7 and 8). In the revised Senate plan, the partisan composition of these three districts is closely balanced. Democratic performance in District 6 is 42.2%, in District 7 is

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45.7%, and in District 8 is 48.8%. 26 The Coalition plan modifies the lines to remove Republicans from Districts 7 and 8. Democratic performance in District 6 falls to 34.7%, and is buoyed in Districts 7 (52.1%) and 8 (51.2%). The Coalition plan makes one of the districts (District 6) completely uncompetitive, in order to give Democrats a small advantage in the other two (Districts 7 and 8). Second: The Coalition divided Seminole County and weakened a blackopportunity district (District 12) to create another Democratic district (District 10). Rather than use the clean boundaries of Districts 10 and 13 in the revised Senate plan, the Coalition goes to great lengths to combine areas of Orange and Seminole Counties that enable the creation of a 50.4% Democratic district. The Coalition removes historic Eatonville—one of the first incorporated black towns—from the black-opportunity district, 27 adding it to District 10, and removes the largely white area around Belle Isle from District 10, adding it to the black-opportunity district.

26

In this section, partisan performance is measured by a two-race average of the 2010 gubernatorial election and the 2008 presidential election, excluding minorparty and unaffiliated candidates.

27

It is difficult to square the Coalition‟s concern for the Bethune-Cookman College community with its lack of concern with Eatonville, or its concern for Hillsborough County Hispanics with its lack of concern for South Florida Hispanics. Nevertheless, in both instances, the Coalition espouses the position that promotes Democrats. MIAMI 942372 (2K)

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The effect of this swap is to weaken minority voting strength in District 1228 and enhance white Democratic voting strength in District 10. The Coalition then splits Seminole County, excluding Republican-leaning Winter Springs and Oviedo from District 10. The consequence is a bizarrely-shaped but Democratic District 10—in the exact area of the state where the Court found that the Senate‟s original District 10 was bizarrely drawn to favor a Republican incumbent. Op. at 156-61. In fact, the Coalition‟s tailoring of Districts 10 and 12 makes them less compact than in the new Senate plan (from .56/.92 to .41/.75 in SD10 and from .40/.74 to.45/.71 in SD 12), and among its ripple effects is a district (District 16) that begins in Winter Springs and collects parts of four counties before it exits along the coast at Sebastian Inlet. Third: The Coalition redrew District 17 and transformed it into another Democratic district—even though the Court rejected the Coalition‟s challenge to District 17 (then District 15) and expressly upheld that district. Op. at 175-76. In doing so, the Coalition exceeded the scope of the Court‟s instructions for a purely

28

Compared to the revised Senate plan, the Coalition reduced BVAP from 36.9% to 34.4% and HVAP from 20.0% to 18.7%. It reduced the share of registered voters who are Democrats (51.9% to 49.4%) and the share of general election voters who are Democrats (50.4% to 47.0%) to less than a majority. It also reduced the share of registered Democrats who are black (54.4% to 52.1%), the share of Democratic general election voters who are black (57.2% to 54.3%), and the share of Democratic primary election voters who are black (56.2% to 52.6%). MIAMI 942372 (2K)

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partisan purpose. The ripple effect of the Coalition‟s District 17 is to send two neighboring districts (Districts 20 and 24) into Pasco County in search of the necessary population. Fourth: Worst of all, the Coalition diminishes an existing, performing Hispanic district in Miami-Dade County (District 37) and transforms it into another Democratic district—even though the Court rejected the Coalition‟s earlier challenges and expressly upheld these districts in the original Senate plan. Op. at 176-78. While District 37 retains a 75.2% HVAP, a functional analysis shows that, with the inclusion of areas between Cutler Bay and Homestead, Hispanics will be unable to elect their preferred candidates.29

In the Coalition‟s District 37,

Hispanics are 78.5% of the Republican primary, but only 26.8% of the Democratic primary.

The Coalition‟s District 37, however, votes Democratic in general

elections (54.6% for Sink, 55.0% for Obama, and 51.7% for Davis), suggesting defeat for Hispanic-preferred candidates. By contrast, in the 2002 benchmark district (District 38), Rick Scott (R) won 56.8%, John McCain (R) won 57.9%, and Charlie Crist (R) won 59.9%, and in the revised Senate plan, Scott won 55.4%, McCain won 55.4%, and Crist won 58.7%.

29

As this Court explained, “a minority group‟s ability to elect a candidate of choice depends upon more than just population figures.” Op. at 66; see also id. at 130-32. MIAMI 942372 (2K)

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The Coalition‟s changes to District 37, therefore, violate the Constitution‟s prohibition upon districts that “diminish [the] ability [of minorities] to elect representatives of their choice.” Art. III, § 21(a), Fla. Const.; see also Op. at 62. Under the 2002 benchmark plan, Hispanics in Miami-Dade County are able to elect the candidates of their choice in three districts. Under the Coalition‟s new plan, that number is diminished to two. Further, the Senate was criticized for not creating a fourth performing, super-majority Hispanic district in Miami-Dade County. See Mary Ellen Klas, Legislature Seeks Federal Redistricting Review Even Without a Final Map, MIAMI HERALD, Apr. 2, 2012. The failure even to maintain a third performing Hispanic district would prompt immediate federal litigation under Section 2 of the VRA. The Coalition‟s new plan also produces partisan outcomes wholly inconsistent with academic literature. Academic studies of the clustering of urban Democrats suggest that, in Florida, an apolitical redistricting process would yield Republican majorities of 58 to 61 percent. See Jowei Chen & Jonathan Rodden, Tobler’s Law, Urbanization, and Electoral Bias:

Why Compact, Contiguous

Districts are Bad for the Democrats (available at http://www.stanford.edu/~jowei/ identified.pdf); Op. at 102 (agreeing that the partisan imbalance does not prove an overall intent to favor Republicans, in part because Democrats tend to “cluster in cities,” naturally packing themselves into a smaller number of districts). This MIAMI 942372 (2K)

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advantage naturally becomes more pronounced when the protection of minorities is taken into account. Therefore, the academic literature suggests that the revised Senate plan— not the Coalition plan—is the “naturally occurring” plan. The Coalition contests this Court‟s conclusion that the clustering of Democratic voters in cities creates a natural Republican bias. Op. at 102. It contends that its plan, by achieving equal outcomes, disproves the theory (br. at 13). The Coalition‟s plan, however, proves only that it is possible to counteract the clustering effect and craft a plan that helps Democrats. But the Court knew this, and disapproved any attempt to do so. Op. at 103 (“We reject any suggestion that the Legislature is required to compensate for a natural packing effect of urban Democrats in order to create a fair plan.”). The Coalition did not modify the revised Senate plan to achieve superior objective measures, for in this respect the two plans are essentially identical:

Average Reock Score Average ACH Score Whole Counties Whole Municipalities Average Perimeter Average End-to-End

Revised Senate Plan 0.40 0.76 43 363 223 miles 62 miles

Revised Coalition Plan 0.42 0.75 45 369 221 miles 60 miles

This compelling fact argues for the validity of the revised Senate plan. If the Coalition, with the benefit of hindsight, was unable to craft a plan that is noticeably

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better than the revised Senate plan, it cannot seriously contend that the Senate fell short of constitutional standards. C.

The FDP’s Alternative Plan is No Better

The Senate first received the FDP‟s alternative plan on April 10, 2012, and therefore has had little time to analyze it. An initial review, however, suggests that it, too, is deeply flawed. The FDP‟s alternative map, though compact, violates minority rights across the state. The United States Department of Justice would never grant preclearance to the FDP‟s plan. The FDP removes Hendry County—a county covered under Section 5 of the VRA—from an existing, performing opportunity district (District 39), and therefore guarantees a denial of preclearance. It also weakens District 19, which includes Hillsborough County (another covered county), reducing BVAP and HVAP from 39.5% to 35.5% and HVAP from 23.4% to 21.5%. The FDP plan violates Florida‟s minority protection provisions. It weakens District 12, a black-opportunity district, and imperils the ability of minorities in that district to elect candidates of their choice. A functional analysis shows that the FDP‟s District 12 more closely resembles benchmark District 6, where a white Democrat (Senator Montford) defeated a black Democrat (Curtis Richardson) in the 2010 Democratic primary election.

Finally, the FDP‟s plan, like the

Coalition‟s plan, threatens to deprive Hispanics in District 37—an existing, MIAMI 942372 (2K)

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performing Hispanic district—of their ability to elect the candidates of their choice. The FDP‟s district enables Democrats in the general election to defeat the candidate preferred by South Florida Hispanics.

The FDP plan divides 69

municipalities, compared with 47 in the revised Senate plan. These illegalities are poison pills that should instantly disqualify the FDP‟s plan. 30 CONCLUSION The Legislature acted in good faith to meet the constitutional standards and this Court‟s opinion.

The revised plan satisfies constitutional requirements.

Therefore, it is entitled to deference. See Op. at 24. This Court has expressed its reluctance to drawing a plan itself, noting that such an obligation is “the course of last resort.” Op. at 188. Not only that: it would be the first time in this state‟s history that this Court draws a reapportionment plan where the legislature did not decline to do so. Cf. In re Constitutionality of Senate Joint Res. 2G, 601 So. 2d 543 (Fla. 1992). That drastic measure is unnecessary. This plan is constitutional and should be approved.

30

The plan, moreover, is covered with partisan fingerprints. In his affidavit, the FDP‟s expert explains that he received the FDP‟s plan from “the firm NCEC,” see Expert Aff. of Stephen Ansolabehere at 4, which describes itself as “one of most influential political organizations having helped elect hundreds of progressive candidates to congress,” see http://www.ncec.org. 94 MIAMI 942372 (2K)


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Respectfully submitted,

Andy Bardos Florida Bar No. 822671 Special Counsel to the President The Florida Senate 404 South Monroe Street, Suite 409 Tallahassee, Florida 32399 Telephone: (850) 487-5229 Email: bardos.andy@flsenate.gov

/s/ Raoul G Cantero WHITE & CASE LLP Raoul G. Cantero Florida Bar No. 552356 Jason N. Zakia Florida Bar No. 698121 Southeast Financial Center, Ste. 4900 200 South Biscayne Boulevard Miami, FL 33131 Telephone: (305) 995-5290 Facsimile: (305) 358-5744 Email: raoul.cantero@whitecase.com Email: jzakia@whitecase.com

Cynthia S. Tunnicliff Peter M. Dunbar PENNINGTON, MOORE, BELL, & DUNBAR, P.A. 215 South Monroe Street Second Floor (32301) Post Office Box 10095 Tallahassee, Florida 32302 Telephone: (850) 222-3533 Email: pete@penningtonlaw.com Email: cynthia@penningtonlaw.com Attorneys for the Florida Senate

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CERTIFICATE OF SERVICE I certify that a copy of this brief and the accompanying appendix was sent to the following parties by electronic mail and United States Mail on April 13, 2012. These include all parties appearing on the most recent service list at the time of service. Timothy D. Osterhaus Deputy Solicitor General OFFICE OF THE ATTORNEY GENERAL PL-01, The Capitol Tallahassee, Florida 32399-0400 Telephone: (850) 414-3681 Facsimile: (850) 410-2672 timothy.osterhaus@myfloridalegal.com

Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen C. Winsor Charles B. Upton II GRAYROBINSON, P.A. Post Office Box 11189 Tallahassee, Florida 32302 Telephone: (850) 577-9090 Facsimile: (850) 577-3311 Charles.Wells@gray-robinson.com George.Meros@gray-robinson.com Jason.Unger@gray-robinson.com Allen.Winsor@gray-robinson.com CB.Upton@gray-robinson.com

Attorneys for the Attorney General

Attorneys for the Florida House of Representatives

George T. Levesque General Counsel FLORIDA HOUSE OF REPRESENTATIVES 422 The Capitol Tallahassee, Florida 32399-1300 Telephone: (850) 488-0451 George.Levesque@myfloridahouse.gov

Miguel De Grandy 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 Telephone: (305) 444-7737 Facsimile: (305) 443-2616 mad@degrandylaw.com

Attorneys for the Florida House of Representatives

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Attorneys for the Florida House of Representatives

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John M. Devaney PERKINS COIE, LLP 700 Thirteenth Street, NW, Suite 700 Washington, DC 20005 Telephone: (202) 434-1624 jdevaney@perkinscoie.com

Abha Khanna PERKINS COIE, LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 Telephone: (206) 359-8312 akhanna@perkinscoie.com

Attorneys for the Florida Democratic Party

Attorneys for the Florida Democratic Party

Marc Erik Elias PERKINS COIE, LLP 700 Thirteenth Street, NW, Suite 600 Washington, DC 20005 Telephone: (202) 434-1609 MElias@perkinscoie.com

Kevin J. Hamilton PERKINS COIE, LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 Telephone: (206) 359-8741 khamilton@perkinscoie.com

Attorneys for the Florida Democratic Party

Attorneys for the Florida Democratic Party

Joseph W. Hatchett AKERMAN SENTERFITT 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Telephone: (850) 224-9634 Facsimile: (850) 222-0103 joseph.hatchett@akerman.com

Karen C. Dyer Elan M. Nehleber BOIES, SCHILLER & FLEXNER, LLP 121 South Orange Avenue Suite 840 Orlando, Florida 32801 Telephone: (407) 425-7118 Facsimile: (407) 425-7047 kdyer@bsfllp.com enehleber@bsfllp.com

Attorneys for the Florida Democratic Party

Attorneys for the Florida Democratic Party

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Jon L. Mills BOIES, SCHILLER & FLEXNER, LLP 100 Southeast Second Street Suite 2800 Miami, Florida 33131 Telephone: (305) 539-8400 Facsimile: (305) 539-1307 jmills@bsfllp.com

Paul M. Smith Michael B. DeSanctis Jessica Ring Amunson Kristen M. Rogers JENNER & BLOCK, LLP 1099 New York Ave NW, Suite 900 Washington, DC 20001 Telephone: (202) 639-6000 Facsimile: (202) 639-6066 psmith@jenner.com mdesanctis@jenner.com jamunson@jenner.com rogers@jenner.com

Attorneys for the Florida Democratic Party

Attorneys for the League of Women Voters of Florida, the National Council of La Raza and Common Cause Florida

Ronald G. Meyer MEYER, BROOKS, DEMMA AND BLOHM P.A. 131 North Gadsden Street (32301) Post Office Box 1547 Tallahassee, Florida 32302 Telephone: (850) 878-5212 Facsimile: (850) 656-6750 rmeyer@meyerbrookslaw.com

J. Gerald Hebert 191 Somervelle Street, #415 Alexandria, VA 22304 Telephone: (703) 628-4673 hebert@voterlaw.com

Attorneys for the League of Women Voters of Florida, the National Council of La Raza and Common Cause Florida

MIAMI 942372 (2K)

Attorneys for the League of Women Voters of Florida, the National Council of La Raza and Common Cause Florida

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Ronald A. Labasky BREWTON PLANTE, PA 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 Telephone: (850) 222-7718 Facsimile: (850) 222-8222 rlabasky@bplawfirm.net

Charles G. Burr BURR & SMITH, LLP Grand Central Place 442 W. Kennedy Blvd., Ste. 300 Tampa, FL 33606 Telephone: (803) 253-2010 burrc3@verizon.net

Attorneys for Florida State Association of Supervisors of Elections, Inc.

Attorneys for Florida State Conference of NAACP Branches

Allison J. Riggs Anita S. Earls SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 W. Highway 54, Ste. 101 Durham, NC 27707 Telephone: (919) 323-3380

Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 20215 Telephone: (410) 580-5673

Attorney for Florida State Conference of NAACP Branches David A. Theriaque S. Brent Spain Christopher F. Busch THERIAQUE & SPAIN 433 North Magnolia Drive Tallahassee, Florida 32308 Telephone: (850) 224-7332 Facsimile: (850) 224-7662 dat@theriaquelaw.com sbs@theriaquelaw.com cfb@theriaquelaw.com

Attorneys for Florida State Conference of NAACP Branches

Timothy J. McCausland CITY OF LAKELAND 228 South Massachusetts Avenue Lakeland, Florida 33801 Telephone: (863) 834-6010 Facsimile: (863) 834-8204 Timothy.mccausland@lakelandgov.net Attorneys for the City of Lakeland

Attorneys for the City of Lakeland

/s/Andy Bardos Andy Bardos MIAMI 942372 (2K)

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CERTIFICATE OF COMPLIANCE I certify that the foregoing brief complies with the font requirement of Florida Rule of Appellate Procedure 9.210(a)(2) and is submitted in Times New Roman 14-point font.

/s/Andy Bardos Andy Bardos

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Brief of the Florida Senate  

The brief, which was filed April 13, 2012, in the matter of In Re: Senate Joint Resolution of Legislative Apportionment 2-B, describes how t...

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