IN THE SUPREME COURT OF FLORIDA

Transcription

1 Electronically Filed 06/11/ :04:29 AM ET RECEIVED, 6/11/ :08:33, Thomas D. Hall, Clerk, Supreme Court RENE ROMO, et al., IN THE SUPREME COURT OF FLORIDA Petitioners, Case No. SC DCA Case No. 1D v. L.T. Case Nos CA CA THE FLORIDA HOUSE OF REPRESENTATIVES, et al., Respondents. / PETITIONERS AMENDED MOTION FOR EXPEDITED REVIEW Rene Romo, Benjamin Weaver, William Everett Warinner, Jessica Barrett, June Keener, Richard Quinn Boylan, and Bonita Agan (the Romo Petitioners ), pursuant to Florida Rule of Appellate Procedure and Section VI of this Court s Internal Operating Procedures, hereby move to expedite this Court s review of this appeal and accelerate the briefing schedule on both the jurisdictional question and the merits. For the reasons that follow, a swift resolution of this appeal, which involves a challenge to the Legislature s 2012 congressional reapportionment plan (the 2012 Plan ), is of critical importance. The Romo Petitioners have conferred with counsel for Respondents and have been advised that the Secretary of State does not oppose the proposed schedule found in Section III of this motion. The Florida House of Representatives and Senate (together, the Legislative Respondents ) do not oppose the proposed

2 schedule for jurisdictional briefs, but were unable to advise whether they could agree to the proposed schedule for merits briefing, given the contingency of those dates. I. BACKGROUND The First District Court of Appeal s decision now before the Court on review represents the first time that a Florida appellate court has ruled on whether and to the extent legislators and legislative staffers may invoke a legislative privilege to avoid discovery into the intent of a redistricting or reapportionment plan following the passage of the Fair Districts Amendments and enactment of Article III, Section 20 of the Florida Constitution. This issue requires immediate resolution by this Court for the reasons that follow. II. ARGUMENT The extent to which Florida s citizenry is able to enforce the Florida Constitution s prohibitions on political gerrymandering when legislators and legislative staffers responsible for drawing a redistricting or reapportionment plan claim legislative privilege concerns questions fundamental to Florida s representative democracy, and time is of the essence. Although the plaintiffs filed this action on the very same day that the Legislature passed the challenged congressional plan, one election has already taken place based on the 2012 Plan and the Legislature has previously indicated that, if this litigation is not resolved -2

3 well in advance of the next congressional election cycle, it will seek to hold those elections under the map presently in place. Shortly after filing their complaint on February 9, 2012, the Romo Petitioners requested that the Circuit Court consider the matter on an expedited schedule. The Court declined to expedite consideration of the entire matter, but suggested that [i]t may be possible... to separate Plaintiffs facial challenges to the legislation from the as applied challenges, and to resolve the former on an expedited basis. Romo v. Detzner, Nos CA-412, 2012-CA-490, Order From Case Management Conference at 2 (Fla. 2d Cir. Ct. Mar. 26, 2012) (Exhibit A). The Court explained that it anticipated that the initial facial review would be similar to that recently conducted by the Florida Supreme Court in In re: Senate Joint Resolution of Apportionment 1176, No. SC12-1 (Fla. S. Ct. March 9, 2012). Id. In other words, there would be no discovery prior to this initial hearing, but if the Circuit Court found that the plan was not invalid on its face, discovery would commence and the case would progress to trial. Respondent the Florida House of Representatives (the Florida House ) filed a 47-page memorandum arguing why the case could and should not disrupt the 2012 election, even if the Circuit Court were to find the Legislature s plan invalid upon facial review. See Florida House Memo. of Law Regarding Litigation Schedule (Mar. 12, 2012) (Exhibit B). The Florida House raised a hue and cry that -3

4 injecting last-minute districting changes to complex state election machinery does not serve the public interest, id. at 6, and argued that timely final resolution is hopelessly unrealistic before the 2012 election cycle, id. at 12. It further promised that the case was bound to generate substantial disputes relating to discovery, id. at 21, a promise that the Legislative Respondents and third party Republican consultants have made good on. In the end, the Florida House asked that the case proceed in the ordinary course rather than on an expedited basis, ensuring sufficient time for full review before the 2014 congressional elections. Id. at 2. One year later, the 2014 congressional elections are fast-approaching. The Florida Division of Elections has set April 18, 2014, as the qualifying deadlines for congressional candidates. If this challenge is successful, either the Legislature or the Circuit Court will have to create a new map before the qualifying deadline. That map will then be subject to preclearance review under Section 5 of the Voting Rights Act. In addition, the Legislative Respondents are likely to seek appellate review of any decision favorable to the challengers. Together, these external deadlines and the virtually certain appeals process mean that any further delay in discovery could effectively deny the people of Florida meaningful relief from an illegal map for yet another congressional cycle. This is surely not what the people of Florida envisioned when they voted overwhelmingly to rid their elections of -4

5 partisan gerrymandering. Indeed, if the will of the people of Florida now codified in the Florida Constitution as Article III, Section 20 is to be meaningfully enforced, justice requires that this matter be resolved as expeditiously as this Court s schedule permits. This Court has previously recognized that the right to elect representatives and the process by which we do so is the very bedrock of our democracy. In re Legislative Apportionment 1176, 83 So. 3d 597, 600 (Fla. 2012). To ensure the protection of this right, the citizens of the State of Florida, through the Florida Constitution, [approved the Amendments, which employ] the essential concept of checks and balances, granting to the Legislature the ability to apportion the state in a manner prescribed by the citizens and entrusting this Court with the responsibility to review the apportionment plans to ensure they are constitutionally valid. Id. The question of whether legislators and their staff enjoy a legislative privilege that allows them to avoid discovery in cases enforcing the Fair District Amendments is critical to the effectiveness of the prescriptions on the Legislature s power to reapportion. If the Legislature can avoid compliance by resisting discovery, those prescriptions lose a significant amount of their power. Here, the Legislature has already succeeded in avoiding scrutiny of its intent for one congressional election cycle. To protect the citizenry of Florida and ensure that they are not compelled to once again cast their ballots for their congressional representatives under a plan -5

6 that Petitioners expect to be found unconstitutional, it is imperative that this appeal be resolved as expeditiously as possible. III. PROPOSED BRIEFING SCHEDULE Undersigned counsel has conferred with Respondents counsel and has been advised that the Secretary of State does not oppose the proposed schedule set forth below. The Legislative Respondents do not oppose the proposed schedule for jurisdictional briefs, but were unable to advise whether they could agree to the proposed schedule for merits briefing, given the contingency of those dates. With that background, the Romo Petitioners propose that the Court issue an expedited briefing schedule pursuant to which: Respondents response to this brief on jurisdiction would be due on or before June 21, Merits briefing would be conducted on an expedited schedule, under which the Answer brief would be due 14 days after service of the initial brief, and the reply brief would be due 14 days after service of the Answer brief. The Court would hear oral argument as soon as possible, in July or August. -6

7 IV. CONCLUSION For all of the foregoing reasons, the Romo Petitioners respectfully request that the Court expedite its consideration of this appeal and issue a briefing and argument schedule that will allow for its resolution as soon as is reasonably possible. Dated: June 11, 2013 By: /s/_mark Herron Mark Herron Florida Bar No.: mherron@lawfla.com Robert J. Telfer III Florida Bar No.: rtelfer@lawfla.com Angelina Perez Florida Bar No.: aperez@lawfla.com MESSER CAPARELLO, P.A Centennial Place Tallahassee, FL Telephone: (850) Facsimile: (850) Marc Elias (admitted pro hac vice) Kevin J. Hamilton (admitted pro hac vice) John Devaney (admitted pro hac vice) Abha Khanna (admitted pro hac vice) Elisabeth Frost (admitted pro hac vice) PERKINS COIE LLP th St., N.W., Suite 700 Washington, D.C Tel: (202) Fax: (202) MElias@perkinscoie.com KHamilton@perkinscoie.com JDevaney@perkinscoie.com AKhanna@perkinscoie.com -7

8 Attorneys for the Romo Plaintiffs -8

9 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic Mail this 11 June 2013 to each of the following parties on the attached service list: /s/ Mark Herron Mark Herron MESSER CAPARELLO, P.A Centennial Place Tallahassee, FL Telephone: (850) mherron@lawfla.com -9

10 SERVICE LIST Daniel E. Nordby, General Counsel Florida House of Representatives 422 The Capitol 402 South Monroe Street Tallahassee FL Primary Secondary Charles T. Wells George N. Meros, Jr. Jason L. Unger Andy Bardos GRAY ROBINSON, P.A. Post Office Box Tallahassee, FL Primary Secondary Primary Secondary Michael A. Carvin Louis K. Fisher JONES DAY 51 Louisiana Avenue N.W. Washington, D.C George T. Levesque, General Counsel The Florida Senate 404 South Monroe Street Tallahassee, FL Primary Secondary Miguel A. De Grandy MIGUEL DE GRANDY, P.A. 800 Douglas Road, Suite 850 Coral Gables, FL Stephen Hogge STEPHEN HOGGE, ESQ., LLC 117 South Gadsden Street Tallahassee, FL

11 Charles G. Burr BURR & SMITH, LLP Grand Central Place 442 W. Kennedy Blvd., Suite 300 Tampa, FL Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD Allison J. Riggs Timothy D. Osterhaus, Deputy Solicitor Anita S. Earls General SOUTHERN COALITION FOR Blaine Winship, General Counsel SOCIAL JUSTICE OFFICE OF THE ATTORNEY 1415 W. Highway 54, Suite 101 GENERAL Durham, NC The Capitol, PL-01 Tallahassee, FL Harry O. Thomas Christopher B. Lunny RADLEY THOMAS YON & CLARK, P.A. 301 S. Bronough Street, Suite 200 Tallahassee, FL Primary Secondary Primary Secondary Jon L. Mills (Miami Office) Karen C. Dyer (Orlando Office Elan M. Nehleber (Orlando Office_ BOIES, SCHILLER & FLEXNER, LLP 100 SE 2 nd Street, Ste Miami, FL S Orange Avenue, Suite 840 Orlando, Primary s: jmills@bsfllp.com enehleber@bsfllp.com ecruz@bsfllp.com Raoul G. Cantero Jason N. Zakia Jesse L. Green WHITE & CASE, LLP Ashley Davis Assistant General Counsel Florida Department of State R.A. Gray Building -11

12 Southeast Financial Center, Ste South Biscayne Boulevard Miami, FL Primary s: 500 S. Bronough Street Tallahassee, FL Telephone: (850) Cell: (850) D. Kent Safriet Thomas R. Philpot HOPPING, GREEN & SAMS, P.A. P.O. Box 6526 Tallahassee, FL Telephone: (850) Facsimile: (850) Daniel C. Brown CARLTON FIELDS, P.A. P.O. Drawer 190 Tallahassee, FL Telephone: (850) Primary s: David B. King Thomas A. Zehnder Frederick S. Wermuth KING, BLACKWELL, ZEHNDER & WERMUTH, P.A. P.O. Box 1631 Orlando, FL

13 EXHIBIT A

14 IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA RENE ROMO, an individual; BENJAMIN WEAVER, an individual; WILLIAM EVERETT WARINNER, an individual; JESSICA BARRERTT, an individual; JUNE KEENER, an individual; RICHARD QUINN BOYLAN, an individual; and BONITA AGAN, an individual, CASE NO: 2012-CA-412 vs. Plaintiffs, KEN DETZNER, in his official capacity as Florida Secretary of State, and PAM BONDI, in her official capacity as Attorney General of the State of Florida, Defendants. THE LEAGE OF WOMEN VOTERS OF FLOIRDA, et al, Plaintiffs, vs. CASE NO: 2012-CA-490 KEN DETZNER, in his official capacity as Florida Secretary of State, THE FLORIDA SENATE; MICHAEL HARIDOPOLOS, in His official capacity as President of the Florida Senate; THE FLORIDA HOUSE OF REPRESENTATIVES; and DEAN CANNON, In his official capacity as Speaker of the Florida House of Representatives, Defendants. ORDER FROM CASE MANAGEMENT CONFERENCE These consolidated cases are before me after a case management conference on March 16, Pending at the time were Plaintiffs' request for an expedited scheduling order and Notice of Invoking Continuance Pursuant to F.S filed by the Speaker of 1

15 the house and the President of the Senate. This order memorializes my oral rulings, observations and suggestions at the case management conference, as follows: As to the Notice to Invoke Continuance, I concluded that the privilege was properly invoked by these defendants, but as they are not indispensable parties, Plaintiffs had the option of dropping them from the case in order to proceed. If defendants then wished to intervene, they would have to waive the privilege as a condition of intervention. Since the conference, it appears that the Notice has been withdrawn and is therefore no longer an issue. As to the requested expedited scheduling order, I agree with the Defendants that these claims are too complex and factually intensive to be able to quickly resolve all of them on the schedule proposed by Plaintiffs. It may be possible, however, to separate Plaintiffs' "facial" challenges to the legislation from the "as applied" challenges, and to resolve the former on an expedited basis. I have therefore reserved time on the calendar for a hearing on an appropriate motion to be filed by Plaintiffs. What type of motion to file, how to best present to me the necessary evidence and law to resolve the issues, whether by motion for partial summary judgment, for temporary relief or otherwise, I leave to the Plaintiffs. I would anticipate a review similar to that recently conducted by the Florida Supreme Court in In re: Senate Joint Resolution ofdpportionment 1176, No. SC12-1 (Fla. S. Ct. March 9, 2012). However, unlike with that case, there is no constitutional mandated review nor proscribed procedure for bringing the matter before the court for resolution in these cases. So, the burden is on the Plaintiffs to prove their claims and they must decide how best to present their case for a facial challenge. 2

16 Because of the time constraints, it is anticipated that the motion will be resolved on the basis of stipulated or uncontested facts, or on facts appropriate for judicial notice. I do not foreclose or preclude, however, any party from proffering evidence they deem relevant. I observe only that I may be unable to resolve contested issues of fact and render a timely decision, given the looming election deadlines. Accordingly, Plaintiffs are directed to file an appropriate motion with supporting memoranda on or before March 26, 2012, with notice of hearing on April 16, 2012 beginning at 9:00 A.M. in courtroom 3G. The motion should be as detailed as possible so as to give Defendants sufficient notice of the specific challenges. Defendants shall file their response with supporting memoranda no later than ten days after service of Plaintiffs' motions. Plaintiffs may file a reply thereto within five days of service. DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida, this day of March, Copies to: All counsel of record. TERRY. EWI Circuit Judge 3

17 EXHIBIT B

18 IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA RENE ROMO, an individual; BENJAMIN WEAVER, an individual; et. al, vs. Plaintiffs, CASE NO CA KEN DETZNER, in his official capacity as Florida Secretary of States, PAMELA JO BONDI, in her official capacity as Attorney General, Defendants. / THE LEAGUE OF WOMEN VOTERS OF FLORIDA; THE NATIONAL COUNCIL OF LA RAZA; et al., Plaintiffs, vs. CASE NO CA KEN DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; et al., Defendants. / DEFENDANT FLORIDA HOUSE OF REPRESENTATIVES MEMORANDUM OF LAW REGARDING LITIGATION SCHEDULING The issue in these consolidated cases is the constitutional validity of the recently enacted congressional redistricting plan (the Congressional Plan ). At the March 7, 2012 case management conference, the Court heard argument regarding the manner in which these consolidated cases should proceed. Plaintiffs suggested that the Court should hold an expedited trial and immediately implement a remedy. That is, Plaintiffs ask the Court to hold a final trial on the merits, invalidate the Legislature s enactment, and draw its own map all in time to allow full appellate review and federal preclearance well before the June 4 qualifying deadline. This is

19 unreasonable and unworkable for any number of reasons. Worse, Plaintiffs proposal would guarantee chaos, introduce widespread voter and candidate confusion, invade Florida s constitutionally grounded separation of powers, and set aside any semblance of due process. The Court should reject the proposal, and these consolidated cases should proceed in the ordinary course, ensuring sufficient time for full review before the 2014 congressional elections. The issues involved here simply do not lend themselves to a rush to judgment. Instead, they demand a studied and orderly process that will protect the interests of not only the parties, but all of Florida s citizens and voters. At the conclusion of last week s conference, the Court requested briefing on the issues raised. The Florida House of Representatives (the House ) respectfully submits this brief. I. THE SECTION AUTOMATIC STATUTORY CONTINUANCE IS IN PLACE. First, and independent of all other reasons below, these consolidated cases cannot proceed because the House has invoked its statutory right to continuance under Section , Florida Statutes. Plaintiffs in one of the consolidated cases (the LOWV Plaintiffs ) have challenged the continuance, and the Court has ordered responses. By separate filing, the House will respond. But in the meantime, the automatic statutory continuance remains in place. See , Fla. Stat. ( Any proceeding before any court... shall stand continued... when notice to that effect is given.... ). II. UNTIL THE CONGRESSIONAL PLAN AT ISSUE IS PRECLEARED, PLAINTIFFS CLAIMS ARE UNRIPE, AND THE LITIGATION SHOULD NOT PROCEED. All parties agree that the Congressional Plan requires federal preclearance. See Lopez v. Monterey County, Cal., 519 U.S. 9, 20 (1996) ( No new voting practice is enforceable unless the covered jurisdiction has succeeded in obtaining preclearance. ). If the Congressional Plan does not obtain preclearance, it will have to be revised separate and apart from any ruling of this Court. Therefore, Plaintiffs essentially ask this Court to issue an advisory opinion. See Martinez 2

20 v. Scanlan, 582 So. 2d 1167, 1171 (Fla. 1991) (absent actual controversy, any opinion on a statute s validity would be advisory only and improperly considered in a declaratory action ). Therefore, it is well-established that until clearance has been obtained, courts should not address the constitutionality of the new measure. Wise v. Lipscomb, 437 U.S. 535, 542 (1978); accord Connor v. Waller, 421 U.S. 656, 656 (1975) (per curiam) ( Those Acts are not now and will not be effective as laws until and unless cleared pursuant to 5. The District Court accordingly also erred in deciding the constitutional challenges to the Acts.... ); Hughley v. Adams, 667 F.2d 25, 26 (11th Cir. 1982) (holding that the court would decline, for reasons of ripeness, to consider plaintiffs remaining objections to the plan before it has received preclearance ). This Court should not consider the merits of Plaintiffs constitutional challenge until preclearance is completed. In fact, this is the precise position counsel for Plaintiffs in this case took in federal litigation in Texas. 1 In that case, they argued the Court should delay the trial: There are compelling reasons why this Court should postpone these proceedings and resume them upon a preclearance determination. First, it is axiomatic that this Court cannot address the merits of any of the statewide plans until preclearance is obtained. Since the Voting Rights Act became law in 1965, numerous courts have stayed their hand and awaited the Section 5 preclearance determination before proceeding to take up liability issues.... Having an extremely abbreviated discovery schedule and conducting a trial in early September on redistricting plans that will either never become effective as law or, if precleared will not become effective as law until nearly three months from now, makes little sense.... It makes little sense to put this Court and the parties through the time and expense of a liability trial for redistricting plans and districts that ultimately may be denied preclearance.... Put another way, this Court and the parties should not use precious resources to present evidence on whether redistricting plans or minority opportunity districts dilute the voting strength of racial and language minorities when those plans or districts may never be effective at law if preclearance is denied. Perez v. Perry, Case No (W.D. Tex.) ( Plaintiffs Motion to Stay Proceedings And/Or to 1 Several of Plaintiffs counsel in this case also represent some plaintiffs in the Texas litigation and submitted the quoted memorandum. 3

21 Postpone Trial Date ) (doc. 127) (emphasis added) (available at In that case, Plaintiffs argued that even after preclearance, there would be sufficient time for a trial. But the preclearance determination was expected (according to their motion) by late 2011, which was still nearly one year before the 2012 election. Id. The three-judge panel denied the request for stay and later drew its own map, which the United States Supreme Court invalidated in an expedited proceeding. See Perry v. Perez, 132 S. Ct. 934 (2012). The challenge in Texas continues today. Although the Congressional Plan should obtain preclearance, the Department of Justice review is far from a rubber stamp. Along with is administrative application to be served on the Department of Justice shortly, the State of Florida is providing electronic files that are the equivalent of hundreds of thousands of pages for review. No decision is expected quickly. Moreover, since Plaintiffs apparently believe the Legislature drew districts with the intent to diminish the ability of racial and language minorities to elect representatives of their choice, (Romo Am. Compl 30; accord LOWV Compl. 72), presumably they will object to federal preclearance, potentially delaying the process. 2 In fact, the League of Women Voters of Florida and La Raza (Plaintiffs here) are among the more than twenty-five intervening defendants in Florida s pending Section 5 litigation regarding a separate election law. See State of Florida v. United States of America, Case No. 11-cv (D.D.C.). If they are successful in opposing 2 Not only do all Plaintiffs allege diminishment of minority ability to elect as applied to the Congressional Plan generally, see, e.g., Romo Am. Compl. 19(h); LOWV Compl. 49, but the Romo Plaintiffs specifically allege one of the new districts impacting a Section 5 covered county: Congressional District 14 under the 2012 Congressional Plan... was drawn with the result of diminishing the ability of racial and language minorities to elect representatives of their choice. Romo Am. Compl. 26(g). New Congressional District 14 includes portions of Hillsborough County, a covered jurisdiction. Thus, Plaintiffs are expected to challenge preclearance. 4

22 preclearance regarding the Congressional Plan, this case will be all the more pointless. Therefore, the Court should wait until preclearance is granted before moving forward. III. EVEN IF THIS COURT INVALIDATED THE CONGRESSIONAL PLAN ON PLAINTIFFS PROPOSED SCHEDULE, THE COURT MUST PERMIT THE 2012 ELECTIONS TO PROCEED UNDER THE LEGISLATURE S NEWLY DRAWN PLAN. Even if the Congressional Plan were already precleared, even if Plaintiffs were asking for more than an advisory opinion, and even if there were no statutory continuance in place, this Court should decline expedited treatment for at least the following reasons: There is no time for an orderly and fair resolution of Plaintiffs claims in this Court; There is no time for resolution of all appeals in Plaintiffs favor; There is no time for the Legislature to redraw the Congressional Map at the conclusion of those appeals (and this Court has no authority to draw a remedial map); and There is no time for federal preclearance of a redrawn map. Nevertheless, for purposes of argument, this Section will set aside all of those realities each of which is individually sufficient to support denial of expedited treatment and assume that this Court could efficiently and properly resolve the claims by the end of April (as Plaintiffs propose), that the appellate process would immediately end in Plaintiffs favor, that the Court had authority to draw a new congressional plan, that appeals regarding remedy were immediately decided in Plaintiffs favor, and that federal preclearance was immediately obtained. Even assuming all of those impossibilities, this Court should permit the 2012 election to proceed with the plan currently in place. First, it is no novel proposition to utilize reapportionment plans even when they have been found constitutionally invalid. The United States Supreme Court has expressly permit[ted] elections to be held pursuant to apportionment plans that do not in all respects measure up to the legal requirements, even constitutional requirements. Upham v. Seamon, 456 U.S. 37, 44 (1982); accord Clark v. Marx, Case No , 2012 WL (W.D. La. Jan. 9, 5

23 2012) (noting that United States Supreme Court recognized that immediate injunctive relief is not always appropriate [e]ven when a state s apportionment scheme has been found to be unconstitutional ). This is not because the United States Supreme Court is unconcerned with plaintiffs constitutional rights (cf. Romo Notice of Priority Status at 2); instead [n]ecessisty has been the motivating factor in these situations. Upham, 456 U.S. at 44. The United States Supreme Court has simply recognized as this Court must that injecting last-minute districting changes to complex state election machinery does not serve the public interest. [W]here an impending election is imminent and a State s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. Reynolds v. Sims, 377 U.S. 533, 585 (1964). In deciding whether to order immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. Id. Considering these equitable principles, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court s decree. Id. Numerous courts have applied this logic to deny the type of expedited injunctive relief Plaintiffs seek here. Just last month, a federal court in Pennsylvania denied a request to immediately invalidate a redistricting plan because the public interest in an orderly election process and in voters participation in the 2012 election particularly, the primary election in the spring of this Presidential year requires denial of plaintiffs requested relief. Pileggi v. Aichele, -- F. Supp. 2d --, 2012 WL (E.D. Pa. Feb. 8, 2012). Citing Reynolds, the Court noted that the primary election was just eleven weeks away, that petition deadlines were 6

24 forthcoming, and the elections process was well underway. Id. at *7. In view of this immediacy, we are compelled to have the elections proceed under the 2001 Plan. In short, this is precisely a case where an impending election is imminent and a State s election machinery is already in progress, such that a court may withhold from granting relief, even if the existing apportionment scheme is found to be invalid. Id. at *8 (quoting Reynolds). That Court s decision was no outlier, and it found support from numerous other decisions: Id. at 7. Since the Reynolds decision, a number of federal courts have withheld the granting of relief, and even dismissed actions, where an election was imminent and the election process had already begun. See, e.g., Political Action Conference of Ill. v. Daley, 976 F.2d 335, (7th Cir. 1992) (affirming district court s dismissal of plaintiffs complaints alleging Equal Protection and Section 2 VRA claims for failure to state a claim); Clark v. Marx, No , 2012 WL 41926, at *7 (W.D. La. Jan. 9, 2012) (denying preliminary injunction, despite the fact that the short holdover period may have been sufficient to constitute a violation of the Equal Protection Clause, because this [wa]s the type of case in which the Supreme Court [in Reynolds] has guided federal courts to use restraint and decline to grant the immediate relief requested ); Graves v. City of Montgomery, No , 2011 WL , at *13-15 (M.D. Ala. Aug. 10, 2011) (dismissing Equal Protection claim and Section 2 VRA claim where [t]he impending election falls squarely within the Reynolds time frame of imminency ); Old Person v. Brown, 182 F. Supp. 2d 1002, 1017, 1020 (D. Mont. 2002) (observing Reynolds observation of circumstance where impending election is imminent and entering judgment in favor of defendants with respect to plaintiffs Section 2 VRA claim); Cardona v. Oakland Unified Sch. Dist., 785 F. Supp. 837, 843 (N.D. Cal. 1992) (denying motion for preliminary injunction and dismissing action where [t]he Oakland election machinery [wa]s already in gear for the June 2, 1992 primary election ). The Court also relied on Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606 (4th Cir. 1970). In that case, like here, Plaintiffs sought an injunction against use of the legislature s reapportionment, which Plaintiffs claimed was unconstitutional. In rejecting Plaintiffs challenge, the federal appeals court noted that the complaint was filed only thirteen weeks before the candidate filing deadline. Id. at 609. (Romo, et al. filed their Amended Complaint with even less time.) The Court recognized that even if 7

25 Plaintiffs were successful in invalidating the plan creation of a new plan would take time: [T]he development of a rational reapportionment plan takes time. If it is not to be unnecessarily disruptive, many political considerations should be acknowledged. These include such things as the undesirability of having electors choose between contending office-seekers with whom the electors have had insufficient opportunity to become acquainted. The most satisfactory solutions are not to be found in the products of slide rules untempered by practical considerations of the needs of constituencies and the effective functioning of political processes. Maryland Citizens, 429 F.2d at 609. If the Court ignored the legislature and drew its own plan, it would not only brush aside important considerations of federalism, but it, too, would enter upon a time-consuming process. If a satisfactory plan is to be developed, the court should take the time to inform itself of those considerations which the General Assembly properly and reasonably would recognize and attribute appropriate weight to them in the plan's formulation. Id. Regardless of who drew the new plan, its emergence in final form could not have been expected until close upon the eve of the July 6, 1970 deadline for the filing of candidacies. Such a result would necessarily impose great disruption upon potential candidates, the electorate and the elective process. Id. at 610. As a result, the Court concluded that no immediate relief was warranted, regardless of the merits of the plaintiffs claim. Id. (emphasis added); accord Graves v. City of Montgomery, 807 F. Supp. 2d 1096, 1112 (M.D. Ala. 2011) ( The impending election falls squarely within the Reynolds time frame of imminency. Accordingly, even if a constitutional claim were stated on the face of the Complaint, Plaintiffs request for injunctive relief to enjoin the August 23, 2011 election would have been denied. ) (emphasis added); see also Grogan v. Graves, 1990 WL (D. Kan. Oct. 30, 1990) ( The court finds that the timing of this lawsuit does not allow state and local election officials sufficient time to make the changes necessary to allow voters to write-in votes for governor and lieutenant governor under the existing election systems. To require election officials to reprogram voting machines, reprint ballots, retrain workers, and 8

26 reschedule their schedules is simply unreasonable at this late date. ); Simkins v. Gressette, 495 F. Supp (D.S.C. 1980) ( In these circumstances, it would be impossible to order reapportionment of the South Carolina Senate without imposing immediate disruption on political candidates, the voters, and the election process. Whether development of a new reapportionment plan was left to the General Assembly, as it should be in the first instance when the State has not been recalcitrant in its reapportionment obligations, or whether such reapportionment was undertaken by a Three-Judge Court, the task could not possibly be completed prior to the June 10, 1980, primary elections.... It requires no special insight to perceive the immediate disruption of the 1980 election process which would follow if the relief requested by the plaintiffs were granted. ). State courts, too, have followed this approach. After invalidating North Carolina s reapportionment, that state s Supreme Court refused to allow the maps invalidity to disrupt the upcoming election. Pender County v. Bartlett, 649 S.E.2d 364, 376 (N.C. 2007). The Court was cognizant that the General Assembly will need time to redistrict. Id. More importantly, the Court also realize[d] that candidates have been preparing for the 2008 election in reliance upon the districts as presently drawn. Accordingly, to minimize disruption to the ongoing election cycle, the remedy explained above shall be stayed until after the 2008 election. At the conclusion of the 2008 election, House District 18 and other impacted districts must be redrawn. Id. (citation to Reynolds omitted). Earlier, the Pennsylvania Supreme Court found the legislature s reapportionment invalid but refused to enjoin its use: It is obvious that the Pennsylvania Legislature cannot properly act to reapportion itself in the short time remaining before the election.... Serious disruption of orderly state election processes and basic governmental functions would result from immediate action by any judicial tribunal restraining or interfering with the normal operation of the election machinery at this late date. The Legislature should not be denied a reasonable opportunity to enact new reapportionment 9

27 legislation. Butcher v. Bloom, 203 A.2d 556, (Penn. 1964); see also Davenport v. Apportionment Commission of State of N. J., 304 A.2d 736, 739 (N.J. App. 1973) ( Our decision not to disrupt this year s election process does not mean that we approve the Apportionment Commission s districting plan now before us. As we point out later, on the basis of the record before us we have grave doubts as to whether the plan complies completely as it should with state constitutional requirements. ). Our own Supreme Court has likewise acknowledged the validity of concerns Reynolds expressed. In its automatic review of the 1972 state legislative apportionment, the Court rejected certain constitutional challenges, which it found it could not effectively review in its limited, facial, thirty-day review. In re Apportionment Law Senate Joint Resolution No. 1305, 1972 Regular Session, 263 So. 2d 797, 808 (Fla. 1972). Furthermore, an impending election is imminent and the state s election machinery is already in progress. The proximity of the election should be, and is, considered by this Court, as well as the mechanics and complexities of an election under the apportionment plan contained in Joint Resolution No Id. The Court expressly held that [t]he forthcoming election may proceed, but allowed future challenges to the apportionment to be brought later. Id. at 809. The same should happen here. If the Congressional Plan is later invalidated, of course, that would not undermine the elections or candidates already elected. See, e.g., Connor v. Williams, 404 U.S. 549 (1972) (state legislative elections based on concededly unconstitutional plan need not be invalidated or require immediate new elections); Johnson v. Mortham, 926 F. Supp. 1460, 1495 (N.D. Fla. 1996) (three-judge panel) (invalidating redistricting plan but specifically ordering that representatives elected under invalid plan remain in office until next election). Even if representatives are elected under an invalid map, there is no serious claim that their constitutional offices would be 10

28 at risk. On the contrary, by tasking invalidly apportioned state legislatures with the responsibility of reapportioning themselves, the United States Supreme Court obviously has recognized that until a new legislature is elected, the existing legislature is validly in place. See, e.g., Reynolds, 377 U.S. at Next, postponing a decision would square with longstanding practice. Following the 2002 redistricting, there were three challenges to the new plans, but none was resolved in time to change the 2002 elections: Challengers in Brown v. Butterworth, 831 So. 2d 683 (Fla. 4th DCA 2002), initiated their case in March, 2002, saw a motion to expedite denied in June, and a decision by the appellate court in October. In Florida Senate v. Forman, 826 So. 2d 279 (Fla. 2002), challengers filed their complaint in May, obtained a trial-court decision in July, and obtained a Supreme Court ruling in September. And in Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla. 2002) (threejudge court), Plaintiffs filed their complaint in January, and the trial court ruled in July, and issued its written opinion in December Id. In none of these cases was the election threatened. There would be nothing unusual or improper about this Court s avoiding chaos, voter confusion, and election misadministration by declining Plaintiffs demand for immediate injunctive relief. Indeed, what would be unusual or improper would be thrusting a new, to-be- 3 In addition, the United States Supreme Court has repeatedly recognized the appropriateness of limiting the times in which constitutional challenges to redistricting plans can be made. For example, the federal constitution requires each congressional district to have equal population. See Karcher v. Daggett, 462 U.S. 725, 730 (1983). This does not mean, though, that a plan can be invalidated every time population shifts yield unequal districts. Instead, States operate under the legal fiction that their plans are constitutionally apportioned throughout the decade, a presumption that is necessary to avoid constant redistricting, with accompanying costs and instability. LULAC v. Perry, 548 U.S. 399, 421 (2006); see also Georgia v. Ashcroft, 539 U.S. 461, 488 n.2 (2003). Similarly, even though immediately after Amendment Six s adoption, districts shall be compact, no party seriously contends that they could have challenged the existing redistricting plan on this ground. 11

29 developed congressional redistricting plan on an election system already underway. Even if this Court could rule in Plaintiffs favor immediately and finally, it should decline immediate injunctive relief, as numerous other courts have appropriately done. At any rate, this is somewhat beside the point, because Plaintiffs claims cannot be adjudicated quickly, even under the best of circumstances, as shown below. IV. HAVING TIMELY FINAL RESOLUTION IS HOPELESSLY UNREALISTIC, EVEN UNDER THE BEST OF CIRCUMSTANCES. A. The Claims, Although Imprecise, Will Be Incredibly Complex. This case will be a difficult one on any schedule. It is an impossible one in the hurried schedule Plaintiffs propose. The claims at issue all of which are based on new Amendment Six or the federal law it incorporates are incredibly complex and require careful fact-finding and application of unsettled law. As the LOWV told the Florida Supreme Court (regarding substantively identical Amendment Five), the Court must determine: Whether the [Congressional districts] were drawn with intent to favor or disfavor a political party or any incumbent; Whether the plans were drawn with the intent or result of interfering with the equal opportunity of racial or language minorities to participate in the political process or to diminish the ability to elect representatives of choice; Whether the districts are contiguous, and to the extent possible without interfering with federal law or the previously stated criteria; Whether the districts are compact; Whether the districts are as equal in population as practicable; and Whether the districts utilize existing geographical and political boundaries wherever feasible (LOWV Reply Br. at 3) (available at Contrary to suggestions made at the conference, Plaintiffs challenge the Congressional Plan under each of these standards, 12

30 except for contiguity and equal population. (The Congressional Plan is indisputably contiguous and has a total deviation from its most populous to least populous district of one human being.) Other than contiguity and equal population, Plaintiffs seize on every remaining standard, sparing none. They contend that the congressional districts were drawn with an intent to favor a political party, (see, e.g., LOWV Compl. 42), were drawn with an intent to disfavor a political party, (see, e.g., Romo Am. Compl. 29), were drawn with an intent to favor incumbents, (see, e.g., Romo Am. Compl. 24) were drawn with an intent to disfavor incumbents, (see, e.g., LOWV Compl. 42), were drawn with an intent to deny or abridge the equal opportunity of racial and language minorities to participate in the political process, (see, e.g., Romo Am. Compl. 25), were drawn with the intent and result of diminishing the ability of racial and language minorities to elect representatives of their choice, (see, e.g., id. 25, 26), are not compact, (see, e.g., id. 30), and do not utilize political and geographical boundaries where feasible, (see, e.g., LOWV Compl. 76.) To fully and finally resolve any of these claims much less all of them requires a substantial undertaking that cannot be completed in time to alter the 2012 election. 1. The Minority Protection Claims Are Incredibly Complex. Amendment Six s minority protections include two distinct requirements. First, districts must not deny or abridge the equal opportunity of... minorities to participate in the political process. Art. III. 20(a), Fla. Const. As the Florida Supreme Court announced Friday, this imperative 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. In re: Senate Joint Resolution of Legislative Apportionment 1176, -- So. 3d --, at *49 (Fla. Mar. 9, 2012) (available at 13

31 2012_Opinion.pdf ) (the 2012 Opinion ) (quoting 42 U.S.C. 1973(b) (2006)). Like Section 2, this prohibits dilution of minority voting strength. Id.; see also Thornburg v. Gingles, 478 U.S. 30, 51 (1986). Second, Amendment Six prohibits diminishment of minority electoral opportunities, effectively imposing a statewide VRA Section 5 standard. Compare 42 U.S.C. 1973c(b) (prohibiting districts that diminish[] the ability of [minorities] to elect their preferred candidates of choice ) with Art. III. 20(a), Fla. Const. (disallowing districts that diminish [minorities ] ability to elect representatives of their choice ). Although VRA Section 5 s nondiminishment standard applies in only five Florida counties, see 28 C.F.R. pt. 51, app., Amendment Six effectively extends it to all sixty-seven. See 2012 Opinion at *49 (Amendment Six s second imperative regarding minority protections reflects the statement codified in Section 5 of the VRA prohibiting apportionment plans that have the purpose of or will have the effect of diminishing the ability of any citizens... on account of race or color... to elect their preferred candidates of choice. 42 U.S.C. 1973c(b) (2006). ). Forty years of federal VRA litigation proves its complexity, and by incorporating the VRA into state law, Amendment Six makes new state-law challenges equally complex. Cf. Uno v. City of Holyoke, 72 F.3d 973, 977 (1st Cir. 1995) ( In 1965, Congress enacted the Voting Rights Act. Three decades later, the legislation remains a Serbonian bog in which plaintiffs and defendants, pundits and policymakers, judges and justices find themselves bemired. ) (citation omitted). At last week s conference, Plaintiffs referenced the Texas case of Perez v. Perry several times, and several of Plaintiffs counsel are involved in that case. Rather than demonstrate the feasibility of Plaintiffs schedule, the Texas case highlights its hopelessness. That case, which includes federal VRA claims, began on May 9, 2011 and continues today ten months later. See Perry v. Perez, Case No (W.D. Tex.). Along the way, it has generated more than 680 docket entries, seen the appearance of numerous intervenors (on both sides), and visited the 14

32 United States Supreme Court on an expedited basis. After the United States Supreme Court rejected the trial court s interim maps, Perry v. Perez, 132 S. Ct. 934 (Jan. 20, 2012), the district court drew new interim maps just weeks ago, Perry v. Perez (doc. 681), and the case continues, id. ( This interim plan is not a final ruling on the merits of any claims asserted by the Plaintiffs in this case or any of the other cases consolidated with this case. ). In a separate proceeding, the United States District Court for the District of Columbia is evaluating the Texas maps for compliance with Section 5 of the VRA. See Texas v. United States, Case No (D.D.C.). That contested proceeding began on July 19, 2011, (see id. doc. 1), and continues today. Numerous expert reports have been provided to the Court, summary judgment has been considered (and denied), and the court held nine days of trial in January. (See id., docket entries.) Afterwards, the parties submitted proposed findings of fact (the Court granted at least one party s motion to exceed the fifty-page limit). (Id.) At issue in that case is whether Texas s redistricting plans violate Section Five, which prohibits districts that diminish[] the ability of [minorities] to elect their preferred candidates of choice. 42 U.S.C. 1973c(b). The three-judge federal district court has not yet resolved that issue. Yet Plaintiffs ask this one-judge court to determine (by next month) the issue of whether the Congressional Plan diminish[es] the ability of racial and language minorities to elect representatives of their choice. (See, e.g., Romo Am. Compl. 20.) The complexity of the Texas litigation is not unusual, and few VRA cases are easy. Claims based on Section 2 (the analogue to Amendment 6 s prohibition against denying or abridging minorities equal opportunity to participate in the political process) are governed by the well-known test under Thornburg v. Gingles, 478 U.S. 30, 51 (1986): At a minimum, Section 2 plaintiffs must prove the three now-familiar Gingles factors (compactness/numerousness, minority cohesion or bloc voting, and majority bloc voting). Other factors may, however, in the totality of circumstances, be relevant to a claim of racial vote dilution. Derived from the 15

33 Senate Report accompanying the 1982 amendment to Section 2, those factors include: (1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; (2) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; (4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process; (5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; (6) whether political campaigns have been characterized by overt or subtle racial appeals; and (7) the extent to which members of the minority group have been elected to public office in the jurisdiction. Additional factors that may be probative of vote dilution in some cases are: (1) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and (2) whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. Johnson v. Hamrick, 196 F.3d 1216, 1224 (11th Cir. 1999) (citations omitted). These are difficult inquiries: [W]hether Appellees establish the third Gingles factor and whether the totality of circumstances demonstrates black voters are denied equal political opportunity are unusually complex, fact-intensive questions for the district court to answer. Id. For this reason, the Florida Supreme Court found it is impossible for us to conduct the complete factual analysis contemplated by the Voting Rights Act, as interpreted in Thornburg v. Gingles, within the [constitutional 30-day time limit for automatic Supreme Court review.] In re Senate Joint Resolution 2G, Special Apportionment Session 1992, 597 So. 2d 276, 282 (Fla. 1992). Yet Plaintiffs ask this Court to decide it by next month. Florida s last redistricting (in 2002) faced a Section 2 claim. The case was assigned to a three-judge federal court, which issued its 75-page final judgment in December 2002 after the 2002 election and some nine months after Governor Bush signed the congressional plan into law. See Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla. 2002) (three-judge court). The Court held 16

34 a seven-day trial and heard extensive expert testimony before ultimately rejecting plaintiffs claims. Id. There is no reason to believe Plaintiffs Section 2 claims (or analogous Amendment Six claims) would require any less intensive review here even if they arrived alone. Adding them to Plaintiffs numerous other claims, the case becomes even more complicated. The separate non-diminishment (or non-retrogression) inquiry under Section 5 of the VRA or Amendment Six is likewise complex. Although the Supreme Court has never enumerated all relevant factors, it has emphasized that the inquiry is often complex in practice to determine. Georgia v. Ashcroft, 539 U.S. 461, 480 (2003); see also Holder v. Hall, 512 U.S. 874, (1994) (plurality) (noting the difficulty in determining whether a proposed change would cause retrogression ). The United States Department of Justice recently issued guidance regarding analyzing diminishment, which requires a functional analysis of the electoral behavior within the particular jurisdiction or election district. See 76 F.R (2011). The inquiry is detailed because [c]ircumstances, such as differing rates of electoral participation within the discrete portions of a population may impact on the ability of voters to elect candidates of choice, even if the overall demographic data show no significant change. Id. Therefore, demographic data alone is insufficient to resolve the diminishment issue. It is beyond empirical dispute that population statistics by themselves are insufficient to estimate the minority community s ability to elect its preferred candidates. In some cases, constituting 51% of a district s population will not be enough for minorities to elect their preferred candidates (however we define them), and in others it will be much more than necessary. Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174, 243 (2007). Therefore, [t]o assess accurately a group s ability to elect its preferred candidates one must know not only the size, likely turnout, and voting preferences of the minority community, but also the political preferences and voting behavior of whites. If no whites will cross over to vote 17

35 for minority-preferred candidates, then a larger minority presence in the district will be necessary for minorities to elect their preferred candidate. Id. (note omitted). The complexity of the Section 5 inquiry is why the Texas case remains pending in federal court in Washington, D.C., after a nine-day trial. As an example of the complexity, attached to this brief is just one of the numerous filings with proposed findings of fact in that unresolved case. See Exhibit A (doc. 186). Attached as Exhibit B is a summary of expert testimony from that case, noting that intervenors expert, Dr. Allan J. Lichtman (whom the LOWV Plaintiffs employed in the Florida Supreme Court proceeding and presumably will here), has prepared four different reports addressing both the State of Texas proposed congressional map and the proposed senate plan. (Doc. 190.) Just one of Lichtman s reports is attached as Exhibit C. Florida, too, has Section 5 litigation pending in Washington D.C. relating to its election law. See State of Florida v. United States of America, No. 11-cv (D.D.C.). The League of Women Voters of Florida is among the intervening challengers there, opposing preclearance. Id. That case was filed on August 1, 2010 and remains pending today more than seven months later. See id. Accordingly, the minority-rights claims are not going to be resolved soon at least not in a thorough and fulsome manner consistent with state and federal due process and fundamental fairness. For this reason, Plaintiffs might attempt to abandon their minority-rights claims. At the conference, in fact, Plaintiffs counsel suggested that they are not alleging diminishment of minority voting rights. But see, e.g., Romo Am. Compl. 20(g) (district was drawn with the result of diminishing the ability of racial and language minorities to elect representatives of their choice ); LOWV Comp. 53 (plan was drawn with the intent to diminish and/or the effect of diminishing the ability of racial and language minorities to participate in the political process and to elect candidates of their choice ). Regardless, Plaintiffs cannot effectively abandon the issue, 18

36 because it is inseparable from Plaintiffs other claims. For example, the requirements regarding compactness and political and geographical boundaries are expressly subordinated to the minority protections. Art. III, 20(b), Fla. Const. Accordingly, a hypothetical non-compact district would not violate Amendment Six if it were necessary to achieve the tier-one minority protections. Moreover, districts necessary to comply with federal law obviously could not violate the state constitution. Therefore, none of Plaintiffs claims can be resolved absent a thorough analysis of all minority-protection issues. 2. The Legislative Intent Claims Are Difficult to Resolve. Plaintiffs also contend that the Legislature acted with unlawful, malicious intent to favor and disfavor parties and incumbents. To be clear, intent is all that is at issue here. The political effects of the apportionment plan are of no moment. Under the amendment, proof of intent to favor an incumbent or party must be demonstrated before a reapportionment plan will be rejected for noncompliance. Advisory Op. to the Att y Gen. re Standards for Establishing Legisl. Dist. Bounds., 2 So. 2d 175, 186 (Fla. 2009) (plurality) (emphasis in original); see also id. ( [F]or a redistricting plan to run afoul of the [amendment], the conduct by the Legislature must be intentional. ) (emphasis on original). Thus, the focus of the analysis must be on both direct and circumstantial evidence of intent Opinion at *44 (citing Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977)). A showing of illegal legislative purpose is an extremely difficult one. Discriminatory purpose implies that the legislature selected a particular course of action, at least in part, because of, not merely in spite of, its adverse effects upon an identifiable group. Personnel Adm r v. Feeney, 442 U.S. 256, 279 (1977) (internal quotations omitted). This finding requires a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,

37 (1977). In examining unlawful purpose, courts are cognizant of the presumption of validity and are reluctan[t] to attribute unconstitutional motives to legislatures. Mueller v. Allen, 463 U.S. 388, 394 (1983). The Florida Supreme Court found that [o]ne piece of evidence in isolation may not indicate intent, but a review of all of the evidence together may lead this Court to the conclusion that the plan was drawn for a prohibited purpose Opinion at *45. But the Court rejected as probative many of the purported indicia of intent Plaintiffs have alleged. The Romo group alleges no ultimate facts, see infra, but LOWV claims improper intent is demonstrated by: Not presenting proposed maps until after the public hearings. (LOWV Compl ); Not considering the LOWV s proposed map. (Id ); Politically opposing the adoption of the redistricting amendments. (Id ); Failing to provide a proportional number of Republican and Democrat districts. (Id ). The 2012 Opinion rejects these supposed indicators. Regarding the public hearings, the Court held that the Florida Constitution imposes no such requirement on the Legislature, and we conclude that this aspect of the process is not indicative of intent to produce partisan plans Opinion at *105. Similarly, the Court rejected the argument that the Legislature acted improperly by not providing additional consideration to the LOWV proposed map. Id. ( We do not consider the failure of the Legislature to adopt the Coalition s alternative plans to be indicative of an improper intent. ). The Court afforded no credence to the LOWV s allegation that bad faith must be inferred from the Legislature s political opposition to the amendments. [E]vidence that the Legislature resisted efforts to make the new constitutional standards enforceable law does not equate to evidence that the Legislature would then intentionally disregard that law once it was in effect. Id. at *103. Last, the Court dismissed the LOWV s claim that a plan yielding a favorable result for Republicans must have come from an improper purpose. 20

38 Id. at We do not agree that the partisan imbalance in the Senate and House plans demonstrates an overall intent to favor Republicans in this case. Explanations other than intent to favor or disfavor a political party could account for this imbalance. First, it has been observed that Democrats tend to cluster in cities, which may result in a natural packing effect, regardless of where the lines are drawn.... Second, the imbalance could be a result of a legitimate effort to comply with VRA principles or other constitutional requirements. With these facts not supporting Plaintiffs position, they will be forced to find other means of satisfying the sensitive inquiry regarding improper intent all the more difficult. It is not one that will be resolved quickly or easily, and it is bound to generate substantial disputes relating to discovery. See infra. 3. Compactness Issues Are Complicated and Difficult to Resolve. As a second-tier requirement, compactness is subordinate to first-tier requirements and cannot be considered until all first-tier requirements are addressed. And even among second-tier standards, it is co-equal with the requirement regarding adherence to existing boundaries. Regardless, though, it is clear resolution of any compactness claim will involve a detailed review. The Florida Supreme Court s examination of the compactness issue last week highlights the difficulty of the analysis: As a geographical inquiry, a review of compactness begins by looking at the shape of a district ; the object of the compactness criterion is that a district should not yield bizarre designs. Compact districts should not have an unusual shape, a bizarre design, or an unnecessary appendage unless it is necessary to comply with some other requirement. In addition to a visual examination of a district s geometric shape, quantitative geometric measures of compactness have been used to assist courts in assessing compactness. In fact, there is commonly used redistricting software that includes tools designed to measure compactness. The House actually used two such measurements. First, the House utilized the Reock method (circle-dispersion measurement), which measures the ratio between the area of the district and the area of the smallest circle that can fit around the district. This measure ranges from 0 to 1, with a score of 1 representing the highest level of compactness as to its scale. Second, the House used the Area/Convex Hull method in its analysis, which measures the ratio between the area of the district and the area of the minimum convex bounding polygon that can enclose the district. The measure ranges from 0 to 1, with a 21

39 score of 1 representing the highest level of compactness. A circle, square, or any other shape with only convex angles has a score of 1. Both measures used by the House have gained relatively broad acceptance in redistricting. Despite this Court's use of visual and numerical measurements of geographic compactness, our review of that mandate cannot be considered in isolation. Other factors influence a district s compactness, including geography and abiding by other constitutional requirements such as ensuring that the apportionment plan does not deny the equal opportunity of racial or language minorities to participate in the political process or diminish their ability to elect representatives of their choice. The Florida Constitution does not mandate, and no party urges, that districts within a redistricting plan achieve the highest mathematical compactness scores. Given Florida s unique shape, some of Florida s districts have geographical constraints, such as those located in the Florida Keys, that affect the compactness calculations. Other times, lower compactness measurements may result from the Legislature's desire to follow political or geographical boundaries or to keep municipalities wholly intact. 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. Nevertheless, non-compact and bizarrely shaped districts require close examination Opinion at As the Court recognized, the inquiry is not as simple as looking at objective mathematical scores. Because of the necessary balancing of competing principles and because some noncompactness is unavoidable it is obvious that a mathematical formulation for determining whether a particular district is unconstitutionally noncompact was not within the contemplation of the constitutional framers. Matter of Legislative Districting of State, 475 A.2d 428, 443 (Md. 1984); accord People ex rel. Burris v. Ryan, 588 N.E.2d 1023, 1028 (Ill. 1991) ( Statistics do not necessarily reveal compactness. ). Different metrics are computed differently, and each has its flaws. The Reock Test, for example, finds the smallest circle containing the entire district and considers the ratio of the district s area to that of the circle. The resulting ratio is between 0 and 1, with the greater the number the more compact the district. See H.P. Young, Measuring the Compactness of Legislative Districts, Legislative Studies Quarterly, Vol. 13, No. 1 (Feb. 1988). Only a perfect circle would represent perfect compactness under this measure. Id. The Swartzberg Test, as another example, is more complicated and requires constructing an adjusted 22

40 district perimeter by connecting points on the district boundary where three or more census tracts from any district meet. Id. at 108. The length of the adjusted perimeter is then divided into the perimeter of a circle with an area equal to the district s. Id. That each test evaluates districts quite differently than others is highlighted by the fact that of the first four shapes in the table below, the star shape is the most compact under the Reock Test and the least compact under the Schwartzberg Test. Id. at Id. Under the Reock test, the least compact is the simple triangle. Id. at 106. And the coiled snake according to the Reock Test is more compact than a perfect square, id., although no reasonable observer would agree. These variations highlight the difficulty of relying on mathematical scores as a single determining factor in compactness. Rather than looking at scores or calculations, the Court will have to look at broader compactness considerations, all while evaluating other constitutional factors, including the adherence to other boundaries. It cannot do this quickly. 4. Inquiries Regarding Adherence to Existing Boundaries Are Complicated and Difficult to Resolve. Next, Plaintiffs claim the districts violate the requirement that districts shall, where 23

41 feasible, utilize existing political and geographical boundaries. Art. III, 20(b), Fla. Const. Where feasible, of course, cannot mean where theoretically possible. Obviously, any particular point on any existing boundary could be used as part of a district boundary but they cannot all be used. Nor can other redistricting principles be ignored. Non-compact or noncontiguous boundaries cannot be used without disrupting other priorities. Consider the municipal boundaries in Palm Beach County: Or those in Broward County. 24

42 Or those in Miami-Dade County: 25

43 If Plaintiffs ever provide detail regarding their claims, they might argue that such political boundaries should have been utilized. But, again, any boundary could be utilized. And to determine whether the legislative balance used here was constitutionally permissible, the Court would have to look at far more than a list of boundaries that could have been used. It would have to evaluate the overall legislative balance, understand the workings of hundreds of communities throughout the state, hear expert testimony, review the thousands of pages of public testimony, 4 and make detailed findings of fact none of which can occur within the compressed 4 Among the more than 6,800 pages filed with the Attorney General s petition in the Florida Supreme Court regarding the legislative maps, were nearly 4,000 pages of transcripts from the Legislature s 26 public hearings. (See AG Petition, available at 26