Initial Brief of League of Women Voters

Home , Andy Gardiner, Bill Galvano, Denise Grimsley, Dorothy Hukill, Florida Senate, Jack Latvala

IN THE SUPREME COURT FOR THE STATE OF FLORIDA

______) IN RE: JOINT RESOLUTION ) OF LEGISLATIVE ) CASE NO. SC12-460 APPORTIONMENT ) ______)

BRIEF OF THE LEAGUE OF WOMEN VOTERS OF FLORIDA, THE NATIONAL COUNCIL OF LA RAZA, AND COMMON CAUSE FLORIDA IN OPPOSITION TO THE LEGISLATURE’S JOINT RESOLUTION OF LEGISLATIVE APPORTIONMENT

Ronald G. Meyer Paul M. Smith* Florida Bar No. 0148248 [email protected] MEYER, BROOKS, DEMMA AND Michael B. DeSanctis* BLOHM P.A. [email protected] 131 North Gadsden Street Jessica Ring Amunson * Post Office Box 1547 [email protected] Tallahassee, Florida 32302 Kristen M. Rogers* Telephone: (850) 878-5212 [email protected] *Pro hac vice pending J. Gerald Hebert* JENNER & BLOCK, LLP [email protected] 1099 New York Ave NW, Suite 900 *Pro hac vice pending Washington, DC 20001 191 Somervelle Street, #415 Telephone: (202) 639-6000 Alexandria, VA 22304 Telephone: (703) 628-4673

TABLE OF CONTENTS

TABLE OF CITATIONS ...... ii

STATEMENT OF INTEREST ...... 1

INTRODUCTION ...... 2

STATEMENT OF CASE AND FACTS ...... 4

SUMMARY OF ARGUMENT ...... 8

ARGUMENT ...... 9

I. THE SENATE‘S PLAN DEMONSTRATES BLATANT PARTISAN AND INCUMBENT FAVORITISM AND DOES NOT COMPORT WITH ARTICLE III, SECTION 21 AS INTERPRETED BY THIS COURT...... 9

II. INDIVIDUAL DISTRICTS IN THE SENATE‘S PLAN ARE DRAWN TO FAVOR THE CONTROLLING PARTY AND INCUMBENTS...... 14

III. THIS COURT IS REQUIRED TO APPORTION THE DISTRICTS...... 42

CONCLUSION ...... 44

CERTIFICATE OF COMPLIANCE ...... 50

TABLE OF CITATIONS

CASES Brown v. Secretary of Florida, 668 F.3d 1271 (11th Cir. 2012) ...... 42

DeGrandy v. Wetherell, 794 F. Supp. 1076 (N.D. Fla. 1992) ...... 43

League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) ...... 43

Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla. 2002) ...... 14

In re Senate Joint Resolution of Legislative Apportionment 1176, No. SC12- 1, --- So. 3d ----, 2012 WL 753122 (Fla. Mar. 9, 2012) ...... passim

CONSTITUTIONAL PROVISIONS Fla. Const., art. III, § 16(f) ...... 3, 43

LEGISLATIVE MATERIALS Tr. of Senate Reapportionment Cmte. Mtg. (March 20, 2012) ...... 4-5

Tr. of Senate Floor Debate (March 22, 2012) ...... 5, 6, 7, 18, 30, 31

OTHER AUTHORITIES Florida Division of Elections, http://election.dos.state.fl.us/elections/ resultsarchive/Index.asp ...... 13

Florida Division of Elections, Candidate Listing for 2012 General Election, http://election.dos.state.fl.us/candidate/CanList.asp, last visited April 6, 2012 ...... 18, 27, 30, 38

Denise Grimsley for State Senate, http://www.denisegrimsley.com/ ...... 29

Bill Galvano for State Senate, Facebook Page http://www.facebook.com/pages/Bill-Galvano-for-State- Senate/93037564339#!/pages/Bill-Galvano-for-State- Senate/93037564339?sk=wall, last visited March 28, 2012 ...... 29 http://www.flsenate.gov/Session/Redistricting/ ...... 4

Mary Ellen Klas, Florida Senate Approves Second Redistricting Plan, TAMPA BAY TIMES, March 23, 2012, http://www.tampabay.com/news/politics/national/florida-senate- approves-second-redistricting-plan/1221407 ...... 21

Mary Ellen Klas, Senate revamps redistricting map, BRADENTON HERALD, March 23, 2012 ...... 21

Brandon Larrabee, Florida Senators Face Decisions On Careers, NEWS- PRESS, March 23, 2012, http://www.news- press.com/article/20120323/NEWS0107/120323022/Florida-senators- face-decisions-careers?odyssey=tab%7Ctopnews%7Ctext%7CHome ...... 21

George Meros, Oral Argument, Case No. SC12-1 (Fla. Feb. 29, 2012) ...... 11

Peter Schorsch, Am I missing something or are Bill Galvano and Denise Grimsley drawn in the same Senate district?, SAINTPETERSBLOG, Mar. 19, 2012, http://saintpetersblog.com/2012/03/am-i-missing- something-or-are-bill-galvano-and-denise-grimsley-drawn-in-the-same- senate-district/ ...... 29

Peter Schorsch, Mike Fasano Endorses John Legg To Be His Successor for State Senate, SAINTPETERSBLOG, Oct. 13, 2011, http://saintpetersblog.com/2011/10/mike-fasano-endorses-john-legg-to- be-his-successor-for-state-senate/ ...... 27

iii

STATEMENT OF INTEREST The League of Women Voters of Florida (LWV) is a nonpartisan organization founded in 1939 to promote active citizenship through informed and engaged participation in government. The League was one of the primary proponents of the FairDistricts Amendments and its members have been actively engaged in the redistricting process.

Common Cause Florida (CCF) is a nonpartisan, nonprofit advocacy organization founded as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.

Common Cause Florida was also a primary proponent of the FairDistricts

Amendments and its members have been actively engaged in the redistricting process.

The National Council of La Raza (NCLR) is a nonpartisan, nonprofit

Hispanic civil rights and advocacy organization in the United States, working to improve opportunities for Hispanic Americans through community-based organizations. NCLR (formerly Democracia, Inc.) was one of the primary proponents of the FairDistricts Amendments and its members were actively engaged in the redistricting process to try to get the Florida State Legislature to comply with the amendments, particularly the amendments‘ provisions for minority rights.

INTRODUCTION In its March 9, 2012 decision, this Court ―declare[d] the plan apportioning the districts for the Florida Senate to be constitutionally invalid under the Florida

Constitution‖ and tasked the Legislature with ―adopting a new joint resolution of apportionment ‗conforming to the judgment of the supreme court‘ as set forth in article III, section 16(d).‖ In re Senate Joint Resolution of Legislative

Apportionment 1176, No. SC12-1, --- So. 3d ----, 2012 WL 753122, at *1 (Fla.

Mar. 9, 2012) (hereinafter ―Op.‖).

As is set forth below, the Legislature‘s new Senate plan does not conform to the judgment of this Court, but rather flouts that judgment by once again engaging in blatant incumbent protection and partisan gamesmanship. The Senate has persisted in its disregard for the constitutional mandates of compactness and utilization of political and geographical boundaries in order to draw districts that will keep incumbent Senators in office, assist incumbent House members with election to the Senate, and make gains for the Republican Party. This Court once again has a ―weighty obligation to measure the Legislature‘s Joint Resolution with a very specific constitutional yardstick,‖ Op. at *76, and once again the Senate‘s plan must be found lacking.

Pursuant to this Court‘s scheduling order of March 13, 2012, the LWVF,

CCF, and NCLR (the ―Coalition‖) submit this brief in opposition to the

Legislature‘s Joint Resolution of Legislative Apportionment. Together with this brief, the Coalition has submitted an alternative districting plan that shows how the

Senate could have complied with this Court‘s decision interpreting the mandates of

Article III, Section 21. See App. Tab A.1 Following this Court‘s decision on

March 9th, the Coalition undertook to draw a new apportionment plan for the

Senate that would fully comply with and implement this Court‘s interpretation of

Article III, Section 21. The Coalition used the last enacted plan, S9008, as its starting point and applied this Court‘s holdings to that plan. The Coalition submitted its alternative plan, SPUBS0178, to the Senate‘s redistricting website on

April 4, 2012.2

Pursuant to Article III, Section 16(f) if this Court ―determine[s] that the apportionment made [by the Legislature] is invalid, the court shall, not later than sixty days after receiving the petition of the attorney general, file with the custodian of state records an order making such apportionment.‖ Fla. Const., art.

III, § 16(f). The Coalition respectfully suggests that in making such apportionment, this Court should use the Coalition‘s plan submitted with this brief as a guide.

1 References to ―App.‖ are to the appendix submitted with this brief. 2 The Coalition‘s SPUBS0178 Plan is attached at Tab A of the Appendix, and is available at http://www.flsenate.gov/Session/Redistricting /Plan/spubs0178. 3

STATEMENT OF CASE AND FACTS On March 9, 2012, this Court issued a decision in which for ―the first time,‖ the Court ―judicially interpreted the newly added constitutional provisions of article III, section 21.‖ Op. at *77. Pursuant to that interpretation, the Court found the Senate‘s reapportionment plan constitutionally invalid. The Court then

―provided the Legislature with parameters for the application of the standards to

[its new Senate] apportionment plan.‖ Id. at *78. In so doing, the Court not only

―attempted to provide the Legislature with direction as to the specific constitutional problems that [it] conclude[d] have been proven,‖ but also provided guidance as to the ―general problems with the entire Senate plan, including the renumbering of the districts.‖ Id. (emphasis added).

Following the Florida Supreme Court‘s decision, the Governor called a special legislative apportionment session. On March 14th, the Senate

Reapportionment Committee convened for the first time to take up the work of drawing a new Senate map. At that first meeting, the Senate made clear that it believed its only task was to fix the eight districts specifically invalidated by the

Court‘s opinion and to do no more. According to the Senate‘s interpretation of this

Court‘s March 9th opinion, the Court ―declare[d] … 32 of 40 Senate districts valid.‖3 See also, e.g., Tr. of Senate Reapportionment Cmte. Mtg. at 96 (March

3 See http://www.flsenate.gov/Session/Redistricting/. 4

20, 2012) (statement of Senator Negron) (―[I]t is very clear that 32 of the 40 districts have been found that there‘s nothing wrong with them.‖). The Senate ignored that this Court ―declar[ed] the Senate plan invalid based on a number of reasons.‖ Op. at *75.

On Saturday March 17th, Chairman Gaetz filed the first proposed reapportionment plan, S9016, on the Senate‘s website. The plan made changes to the eight districts invalidated by this Court, as well as some adjoining districts.

The Reapportionment Committee then met again on March 20th and March 21st. At those meetings, the Committee considered amendments offered by Senators

Latvala, Diaz de la Portilla, and Altman. However, before the final vote in

Committee, the senators withdrew their alternative plans. The Committee voted out Chairman Gaetz‘s S9016 Plan on March 21 by a 21 to 6 vote. Chairman Gaetz then filed an amendment to randomly renumber the districts from the S9016 Plan.

Using a lottery system, the districts were renumbered. The renumbered plan was passed out of committee as S9026.

The S9026 plan then went to the full Senate. On March 22, amendments were offered on the Senate floor. Senator Smith offered an amendment that would have kept the African-American community in Daytona Beach whole, including the community surrounding the historically black Bethune-Cookman College. See

Tr. of Senate Floor Debate at 112-13 (Mar. 22, 2012). Under Senator Gaetz‘s Plan

9026, both Daytona Beach and the African-American community in Daytona

Beach had been split right down the middle by the dividing line between Districts

6 and 8, thus maintaining Republican performance in both districts. The Senate rejected Senator Smith‘s amendment. Id. at 136.

Senator Latvala then offered a substitute amendment, Plan S9030, which had not been raised in committee or discussed prior to its introduction on the floor.

Indeed, the amendment had been introduced just two minutes before the deadline of 5:00 pm of March 21. This amendment shifted the lines of four districts in

Central Florida: Districts 15, 24, 21 and 26. The stated reason for this amendment was that the Mayor of Plant City had requested that the city be kept in a

Hillsborough County centered district. But as several Senators pointed out on the floor, that amendment was designed to ensure that two Republican Senate candidates (one a House incumbent and one a former House member) who had been pitted against one another in the Gaetz 9026 Plan would not have to run for election in the same district. See id. at 158. Indeed, when asked, Senator Latvala did not deny that this was the effect of his amendment, instead offering his opinion that it did not count as partisan or incumbent favoritism since they were both

Republican candidates. Id. at 159.

Several Senators disagreed with Senator Latvala‘s interpretation of the constitution. Senator Thrasher openly stated that ―mak[ing] these fairly dramatic

shifts in this particular plan, or amendment to the overall plan … puts the entire plan at jeopardy in front of the Supreme Court.‖ Id. at 165. The Latvala 9030 Plan also had the effect of reducing Polk County‘s share of District 21 from 50.2% to

39.4%. Senator Dockery stated, ―I understand that people in here want to help their friends, some of the House members, to come over [to the Senate], but that should not be done on the backs of citizens of Polk County.‖ Id. at 169. Senator

Latvala‘s S9030 Plan was nonetheless adopted by a 20 to 15 vote, and the resolution as amended – CS/SJR 2-B – was adopted by the full Senate in a 31 to 6 vote on March 22, 2012.

The measure then went to the House. CS-SJR 2-B was voted out of the

House Redistricting Committee by a 13 to 7 vote on March 26. On the House floor the next day, Representative Jenne offered an amendment in which eight Senate incumbents would have been pitted against one another. Several House members expressed surprise that there were no real incumbent pairings in CS-SJR 2-B.

Nonetheless, the House rejected Representative Jenne‘s amendment after only 8 minutes of debate and passed CS-SJR 2-B without amendment by a vote of 61-47.4

The Attorney General petitioned this Court for review of CS-SJR 2-B (Plan

S9030) on April 6, 2012.

4 As of the date of this filing, neither the Attorney General nor the Legislature has made available the transcripts of the House proceedings. 7

SUMMARY OF ARGUMENT The Joint Resolution of Apportionment adopted by the Legislature does not comply with Article III, Section 21 as that provision was definitively construed by this Court in its March 9th opinion. Specifically, the Legislature‘s reapportionment plans continue to demonstrate an intent to favor Senate and House incumbents and to favor the Republican Party. The Legislature did not heed this Court‘s admonition that Florida law now expressly ―prohibits what has previously been an acceptable practice, such as favoring incumbents and the political party in power.‖

Op. at *17. In redrawing its districts ostensibly to comply with this Court‘s judgment, the Senate did exactly as it had done before – protected incumbents and attempted to gain maximum partisan advantage for the party controlling the

Legislature. Indeed, some of the incumbent protection maneuvers and partisan power grabs in this plan are even more egregious than those in the plan this Court already invalidated.

Because of the overall partisan and incumbent-protection goals of the plan, a number of individual districts violate the constitutional imperatives of compactness and respect for political and geographical boundaries without any justification.

The Coalition‘s plan submitted with this brief plainly demonstrates that there was a way to comply with this Court‘s judgment, yet the Legislature chose not to do so.

As this Court held: ―[A]lternative plans may be offered as relevant proof that the

Legislature‘s apportionment plans consist of district configurations that are not explained other than by the Legislature considering impermissible factors, such as intentionally favoring a political party or an incumbent.‖ Op. at *14. The

Coalition‘s plan is thus relevant proof that improper intent was the motivating factor for the Legislature in these districts. The Senate plan must be invalidated and the Court should use the Coalition‘s plan as a guide in fashioning its own apportionment plan.

ARGUMENT

I. THE SENATE’S PLAN DEMONSTRATES BLATANT PARTISAN AND INCUMBENT FAVORITISM AND DOES NOT COMPORT WITH ARTICLE III, SECTION 21 AS INTERPRETED BY THIS COURT. In its March 9th decision, this Court considered overall challenges to the legislative plans, as well as district-by-district challenges. Although it did not invalidate the Senate plan based solely on any of the overall challenges, this Court nonetheless considered the overall challenges of partisan and incumbent favoritism when it conducted its district-by-district analysis. As the Court stated: ―One 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.‖ Op. at *19. The Court then ―conclude[d] that the Senate plan is 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.‖ Id. at *53.

The same clear pattern is present in the Senate‘s revised plan and a review of all the evidence together will lead this Court to the conclusion that the

Legislature‘s Senate plan was drawn for the prohibited purpose of continued incumbent and partisan favoritism.

First, in invalidating the Senate‘s redistricting plan, the Court looked to the fact that that ―the Senate plan does not pit incumbents against each other.‖ Op. at

*53. Once again, the Senate plan does not pit incumbents against one another in any meaningful way. It is no accident that the only incumbent pairings in the

Senate‘s new map are between incumbents who are term-limited and those who are not term-limited (with one exception, see infra p. 22). Indeed, as is displayed in the Appendix at Tabs J and K, the Senate managed to ―pair‖ non-term-limited incumbents with term-limited incumbents in parts of the state where the incumbents live 14 or 15 miles apart, yet somehow the Senate kept from pairing non-term-limited incumbents with one another where the incumbents live only 2 or

3 miles apart.5 See App. Tab K. Under the Senate‘s map, all of the non-term- limited incumbents (29 out of 29) will once again get their own districts in which

5 Together with this brief, the Coalition is submitting a non-public filing listing all incumbent addresses. These addresses were derived from the voter file maintained by the Florida Secretary of State as of December 31, 2011. 10

to run for re-election. As counsel for the House of Representatives told this Court at oral argument on the Legislature‘s first joint resolution, ―[T]he inevitable result

[] when you apply these standards, [is that] people will be paired whether one likes it or not.‖ G. Meros, Oral Argument at 32:00, Case No. SC12-1 (Fla. Feb. 29,

2012). The Senate intentionally drew its plan so as to avoid the inevitable.

Second, the Court looked to the fact that ―the new districts on average are composed of 64.2% of their predecessor districts‖ and that ―at least some incumbents appear to have been given large percentages of their prior constituencies‖ which is of ―even greater concern given that the 2002 Senate plan was drawn at a time when intent to favor a political party or an incumbent was permissible and there were no requirements of compactness or utilizing existing boundaries.‖ Op. at *54.

The new map is hardly better. In the new map, non-term-limited incumbents retain an average of 62.8% of their former districts. See App. at I-6. But what is striking is the disparity in retention statistics between term-limited and non-term- limited incumbents. Yet again, the Senate cannibalized the districts of term- limited incumbents so as to boost the performance of the surrounding non-term- limited incumbents. Districts of term-limited incumbents therefore retain only

54% of their prior constituents. See id. Sixteen of the Senate‘s non-term-limited incumbents retain more than 64.2% of their former districts. See id. at I-2, I-3. As

the Court found, the ―drawing of a new district so as to retain a large percentage of the incumbent‘s former district‖ is an objective indicator of improper intent. Op. at

*20.

Moreover, the Legislature also ensured that a number of House incumbents who are planning to run for open districts in the Senate (some of whom sat on the

House Redistricting Committee) are well taken care of. As discussed below and depicted in the Appendix at Tab L, a number of open Senate districts appear to have been drawn specifically such House incumbents.

Third, this Court looked at ―the partisan balance of the plan.‖ Op. at *54.

Although the Court ―rejected the challenge that statewide voter registration and election results demonstrate an overall intent to favor the Republican party,‖ id. at

*45, it nonetheless stressed that ―effect can be an objective indicator of intent,‖ id. at *43. Here, the overall partisan effects of the Senate plan demonstrate such a severe partisan skew that the intent to favor the party in power is obvious. As is set forth in the attached appendix, the Legislature created 16 safe Republican seats,

14 safe Democratic seats and 10 toss-ups—9 of which lean Republican. App. at F-

1.6 The overall composition of the Legislature‘s Senate map is likely to be 26

6 As explained in the Appendix at Tab F, this calculation is made using the average Democratic performance of the 2010 gubernatorial election and the 2008 presidential election is herein referred to as the ―two-race average.‖ The average of Democratic performance from the 2006 and 2010 gubernatorial elections and the 2004 and 2008 presidential elections is herein referred to as the ―four-race 12

Republican seats to 14 Democratic seats, or 62.5% Republican. See id. Yet in the last five presidential elections, out of all votes cast in Florida, there were

15,397,180 for the Democratic candidate and 15,340,416 for the Republican candidate, only a 56,764 vote difference – less than 0.2%.7 As is graphically demonstrated at Appendix Tab H, the Legislature achieved its goal of maximum partisan gain by packing as many Democrats as possible into as few seats as possible, recreating the same problems that existed in the map this Court invalidated.

This partisan skew in the Senate‘s new plan is not the result of a ―natural

‗packing‘ effect of urban Democrats.‖ Op. at *45. Indeed, that much is obvious from the fact that the Coalition submitted a plan in which adherence to this Court‘s mandates naturally results in more partisan balance. Rather, as is discussed in further detail in the district-by-district challenges below, the partisan skew in the

Legislature‘s plan is the result of systematic choices by the Legislature to favor the

Republican Party.

Considering all of this evidence together, the obvious conclusion to draw from the Senate‘s map is that it is still rife with objective indicators of unconstitutional intent to favor one party over another and to favor incumbents. average.‖ A ―toss-up‖ seat is defined as one between 46% and 54% Democratic performance using the two-party vote share. 7 See Florida Division of Elections, http://election.dos.state.fl.us/elections/resultsarchive/Index.asp. 13

Rather than heeding the mandate of this Court, the Senate went about business as usual, drawing a plan for maximum partisan gain and incumbent protection. See

Martinez v. Bush, 234 F. Supp. 2d 1275, 1312 (S.D. Fla. 2002) (noting that the

Legislature stipulated at trial that its ―overriding goal with respect to state legislative reapportionment in 2002 was to adopt [a] plan that would … maximize the number of districts likely to perform for Republicans.‖). But ―the purpose of article III, section 21‖ was to ―restrict legislative discretion in an effort to level the playing field and to prevent gerrymandering.‖ Op. at *57. The Senate has proven unable to properly apply and implement Article III, Section 21 in its reapportionment process, and it is left to this Court to do so.

II. INDIVIDUAL DISTRICTS IN THE SENATE’S PLAN ARE DRAWN TO FAVOR THE CONTROLLING PARTY AND INCUMBENTS. The overall invalidity of the Senate plan based on its rampant partisan and incumbent favoritism is borne out in the analysis of individual districts. In describing its ―global approach‖ to determining the constitutional validity of individual districts, this Court stated: ―Because compliance with the tier-two principles is objectively ascertainable, it provides a good starting point for analyzing challenges to the Legislature‘s joint resolution. Where adherence to a tier-one requirement explains the irregular shape of a given district, a claim that the district has been drawn to favor or disfavor a political party can be defeated.

Where it does not, however, further inquiry into the Legislature‘s intent becomes necessary.‖ Op. at *42.

The Court also held that it would ―consider[] the role of the alternative plans submitted by the Coalition‖ and if ―an alternative plan can achieve the same constitutional objectives that prevent vote dilution and retrogression of protected minority and language groups and also apportions the districts in accordance with tier-two principles so as not to disfavor a political party or an incumbent, this will provide circumstantial evidence of improper intent.‖ Id. at *43. ―That is to say, an alternative plan that achieves all of Florida‘s constitutional criteria without subordinating one standard to another demonstrates that it was not necessary for the Legislature to subordinate a standard in its plan.‖ Id.

As the district-by-district analysis below shows, the Coalition‘s alternative plan achieves all of Florida‘s constitutional criteria and thus demonstrates that the

Legislature‘s disregard of the constitution was neither necessary nor justified. The

Court therefore should impute improper intent to the Legislature and invalidate the following districts in the Legislature‘s plan.

A. Districts 6 And 8 Are Unconstitutional.

In Districts 6 and 8, the Legislature blatantly violated the requirement to draw compact districts that utilize existing political and geographical boundaries where feasible. Like the line between Districts 1 and 3 in the original Senate plan,

the line between districts 6 and 8 “follows no consistent political or geographical boundary. Instead, the district dividing line follows a variety of boundaries….”

Op. at *62. Moreover, the dividing line splits the city of Daytona Beach, as well as the African-American community in Daytona Beach, right down the middle. By splitting Daytona Beach, which votes heavily Democratic, the Legislature was able to maintain Republican performance in Districts 6 and 8. There is no justification for splitting Daytona Beach, nor any excuse for the Senate’s “pick-and-choose legislative discretion” about the boundary between Districts 6 and 8. Id. at *39.

Similarly unjustified is the non-compactness of the districts.

Daytona Beach is a city of more than 61,000 people and African-Americans are nearly a third of the population.8 The city of Daytona Beach is heavily

Democratic, voting for the Democratic candidate at 61.6% in the 2008 presidential race and 63.9% in the 2010 gubernatorial election. In arbitrarily choosing a border between Districts 6 and 8 that appears to follow a minor roadway for part of the way and no discernible boundary for other parts of the way, the Legislature splits

Daytona Beach right down the middle, putting just under half in District 6 and just over half in District 8. The Legislature also cuts directly through the African-

American community in Daytona Beach, thus diminishing African-American

8 According to Maptitude, Daytona Beach is 61,005 total population and 51,395 VAP. The African-American community is 21,585 people and 16,304 VAP. 16

voting strength by fracturing the community between two districts, as the map below demonstrates.

Senator Chris Smith warned the Senate about the problems with splitting the

African-American community in half, including the community surrounding the historically black college Bethune-Cookman, and proposed an amendment that would have kept Daytona Beach wholly within District 8. As Senator Smith explained: “The map, without this amendment, we cut the Bethune-Cookman community in half, an historically African-American community that has tremendous significance to this state. The way the maps are drawn now, it goes right in between Bethune-Cookman College and a strong African-American community right below Bethune-Cookman College that supports that college, and the map without this amendment will cut that community in half and

disenfranchise those African-American voters into two different Senate districts, one going all the way up to the Duval County line.” Tr. of Senate Floor Debate at

112-13 (Mar. 22, 2012). Despite the fact that Senator Smith’s amendment had the support of other African-American Senators, it was soundly rejected by the Senate, with one Senator remarking, “Does it matter that you’ve got a few more African-

Americans to the north or to the south?” Id. at 122 (statement of Senator Lynn).

In rejecting Senator Smith’s amendment, the Legislature achieved its partisan goals. By splitting Daytona Beach, the Legislature ensured that District 8 would continue to lean Republican, at 48.9% Democratic performance (using the two-race average). And District 6 would stay safely Republican at 41.9% (using the two-race average) for incumbent Senator John Thrasher.

Moreover, the dividing line between Districts 6 and 8 falls just north of the district boundary for House District 28, which is represented by Republican

Dorothy Hukill, who happens to be the Co-Chair of the Senate Redistricting

Subcommittee in the House. Representative Hukill has filed to run for election to the Senate in District 8,9 which is an open district since its incumbent is term- limited. It seems no coincidence that District 8’s contorted borders follow, in part,

Representative Hukill’s district borders. See App. at L-1. In total, Senate District

8 contains 98.39% of Representative Hukill’s House District.

9 See Florida Division of Elections, Candidate Listing for 2012 General Election, http://election.dos.state.fl.us/candidate/CanList.asp, last visited April 6, 2012. 18

As the Coalition’s alternative map for Districts 6 and 8 demonstrates, the

Legislature’s disregard for the constitutional imperatives to draw compact districts that utilize existing political and geographical boundaries where feasible and not to dilute minority voting strength was neither necessary nor justified. The Coalition’s map does exactly what this Court suggested should be done: it uses counties as building blocks. See Op. at *48-49. Thus, the Coalition’s District 6 is comprised wholly of three counties: Clay, St. John’s, and Flagler Counties, while District 8 remains wholly within Volusia County.

The Coalition map shows that by respecting the county line, the city of

Daytona Beach naturally remains whole. Following the constitutional mandates as the Coalition did, rather than gerrymandering for partisan gain, the alternative

Volusia County District 8 naturally yields a competitive district that leans

Democratic, with 51.1% Democratic performance (using the two-race average). In

the Coalition’s alternative District 8, African-Americans are 9.5% of the voting age population. Given how highly competitive the district is and the fact that the minority population and the district both trend Democratic, this minority population will have the opportunity to influence both primary and general election outcomes. See Op. at *24 (“Influence districts are districts in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected.”).

As the Court noted, “[t]here will be times when districts cannot be drawn to follow county lines or to include the entire municipalities within a district.” Op. at

*40. Plainly, this is not one of them. Thus, the Court should declare that “both districts are constitutionally invalid because they are not compact, do not utilize political and geographical boundaries where feasible, and appear to have been drawn with the intent to favor an incumbent and a political party.” Op. at *69.

B. Districts 10 And 13 Are Unconstitutional.

In its March 9th decision, this Court held District 10 invalid, finding it was

―visually non-compact as a result of the bizarrely shaped appendage‖ in which an incumbent lived. Op. at *66. In its new map, the Legislature simply recreated the mirror image of District 10 in District 13, leaving the exact same appendage intact with its incumbent still living there. In essence, the Legislature flipped the district from west to east, while keeping it ―visually non-compact with an appendage that

reaches out to clearly encompass an incumbent.‖ Id. at *67. Once again, ―this bizarre shape cannot be justified based on concerns pertaining to ensuring minority voting strength.‖ Id.

Although the appendage now encompasses two incumbents rather than one –

Senators Gardiner and Simmons (the only pairing of non-term limited incumbents in the entire map) – this is not a true incumbent pairing since Senator Simmons announced within a week of the release of the map that he will run for re-election in the open District 10 to the north, where he already owns property.10 The open

10 See Mary Ellen Klas, Florida Senate Approves Second Redistricting Plan, TAMPA BAY TIMES, March 23, 2012, http://www.tampabay.com/news/ politics/national/florida-senate-approves-second-redistricting-plan/1221407; Brandon Larrabee, Florida Senators Face Decisions On Careers, NEWS-PRESS, March 23, 2012, http://www.news-press.com/article/20120323/NEWS0107/ 120323022/Florida-senators-face-decisions-careers?odyssey=tab%7Ctopnews %7Ctext%7CHome (―‗I will move back to Seminole County,‘ Simmons said. The freshman senator noted that he lived in Seminole for more than 15 years, moving to Maitland about six years ago, and owns several residences. Almost 65 percent of the new District 10 – which includes all of Seminole County—is in Simmons‘ District 22.‖); Mary Ellen Klas, Senate revamps redistricting map, BRADENTON HERALD, March 23, 2012 (―Sens. Andy Gardiner of Orlando and David Simmons 21

District 10 was drawn so as to retain 64.55% of Senator Simmons‘ former constituents. There is no true incumbent pairing in District 13. Rather, Senator

Gardiner will keep District 13 to himself by maintaining the ―bizarrely-shaped appendage‖ containing his home and approximately 190,000 constituents as the anchor of the district.

This Court has held that ―[w]ith respect to intent to favor or disfavor an incumbent, the inquiry focuses on whether the plan or district was drawn with this purpose in mind.‖ Op. at *19. The Court held that it would look to ―the shape of the district in relation to the incumbent‘s legal residence, as well as other objective evidence of intent‖ such as ―the maneuvering of district lines in order to avoid pitting incumbents against one another in new districts or the drawing of a new district so as to retain a large percentage of the incumbent‗s former district.‖ Id. at

*20. The Court also noted that ―[w]hen analyzing whether the challengers have established an unconstitutional intent to favor an incumbent, we must ensure that this Court does not disregard obvious conclusions from the undisputed facts.‖ Id.

The obvious conclusion to be drawn from these undisputed facts is that Districts 10 and 13 were tailor-made to favor incumbent Senators Simmons and Gardiner.

of Maitland are drawn into the new District 13. Simmons, however, has said he will move to run for an adjacent Senate seat, District 10, based in Seminole County.‖). 22

C. Districts 17, 19, And 22 Are Unconstitutional.

The Legislature’s configuration of districts in the Tampa Bay region is an egregious gerrymander in order to prevent the creation of what would otherwise be a naturally-occurring toss-up district in the area. The Legislature showed no respect for political or geographical boundaries in creating these districts and also packed Hispanic voters into District 19, which has traditionally elected an African-

American, thereby preventing the creation of an additional Hispanic influence district.

First, in its configuration of Districts 17 and 19, the Legislature packed

Hispanics into an African-American district, thereby diluting the African-

American vote share and denying Hispanics an additional influence district. As this

Court has held, “a violation of the Florida minority voting protection provision could be established by a pattern of overpacking minorities into districts where other coalition or influence districts could be created.” Op. at *47. Such a violation is present here.

As is depicted below, a protrusion in the northwest portion of the

Legislature’s District 19 extends west of I-275 to grab a heavily Hispanic, heavily

Democratic pocket of voters in the area around Egypt Lake-Leto. There are approximately 72,000 people in this area, which is just over 52.5% Hispanic voting-age population and voted for the Democratic candidate at 61.7% in the 2008

presidential election and at 57.1% in the 2010 gubernatorial election. The

Legislature then packed these voters into an already heavily Democratic district that has traditionally elected an African-American. The district has a 74.8%

Democratic performance (using the two-race average) and a 38.1% African-

American voting age population.

The Coalition’s configuration of districts in this area shows that it was possible to create an additional influence district for Hispanics and the Legislature chose not to do so. By not extending the northwest corner of District 19 into a heavily Hispanic area, the Coalition’s plan creates an additional Hispanic influence district in District 17. The Coalition’s District 17 has a 25.5% Hispanic voting-age population (18.5% citizen voting-age population) in a true toss-up district, with a

Democratic performance of 50.2% using the two-race average. See App. at D-3, F- 24

4. Hispanics will undoubtedly have the opportunity to influence the election in this district.

By packing Hispanic voters into District 19, the Legislature maintains the adjoining District 17 as a safe seat for Republican incumbent Jim Norman, keeping the Democratic performance of the Legislature’s District 17 at just 46.6% (using the two-race average). See App. at F-2. Moreover, Senator Norman keeps 68% of the constituents from his former district in the visually non-compact District 17 that sprawls from Hillsborough into Pasco County. See App. at I-2. In contrast, as depicted below, the Coalition’s plan uses the county line as its northern boundary, creating a visually compact district that offers Hispanics an additional influence district.

Second, the Legislature gerrymandered District 22 by gratuitously crossing

Tampa Bay to combine the Tampa peninsula with Pinellas. Configuring the district in this nonsensical way ensures that Senator Norman in District 17 keeps more than two-thirds of his prior constituents. See App. at I-2. District 22 is not a minority opportunity district, so there is no Tier 1 justification for its violations of

Tier 2. There is simply no explanation – other than partisan favoritism and incumbent protection – for why District 22 crosses the bay, goes into Hillsborough

County, and grabs the Tampa peninsula when the district could have remained entirely in Pinellas County. “[W]here the shape of a district in relation to the demographics 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, improper intent may be inferred.” Op. at *20.

Again, the Coalition’s alternative plan demonstrates that it was possible to draw a constitutionally compliant district that respects both the geographical boundary of Tampa Bay and the county boundaries of Pinellas and Hillsborough.

In the Tampa Bay region, ―[t]he Coalition‘s plan makes the area, as a whole, more compact than the corresponding area under the Senate plan.‖ Id. at *71. The

Coalition‘s plan serves as ―relevant proof that the Legislature‘s apportionment plans consist of district configurations that are not explained other than by the

Legislature considering impermissible factors, such as intentionally favoring a political party or an incumbent.‖ Id. at *14.

D. District 18 Is Unconstitutional.

District 18 is a non-compact district that avoids using existing political or geographical boundaries in order to encompass the entire district of the House incumbent who has declared his candidacy for this open district. As is depicted at

Appendix at L-2, Senate District 18 crosses the Pasco/Hernando county line to go into Pasco County and pick up the entirety of House District 46, represented by

Republican John Legg. Representative Legg is on the House Redistricting

Committee and is the Co-Chair of the House‘s Congressional Redistricting

Subcommittee. Senate District 18 is an open seat since its incumbent Senator

Mike Fasano is term-limited. Representative Legg has declared his candidacy for the seat and Senator Fasano has endorsed Representative Legg as his successor in

Senate District 18.11

Senate District 18 is visually non-compact and scores only 0.37 on the

Reock measure and 0.69 on the Area/Convex Hull measure of compactness. App. at C-3. Moreover, District 18 does not follow existing political and geographical

11 See Florida Division of Elections, Candidate Listing for 2012 General Election; Peter Schorsch, Mike Fasano Endorses John Legg To Be His Successor for State Senate, SAINTPETERSBLOG, Oct. 13, 2011, http://saintpetersblog.com/2011/10/mike-fasano-endorses-john-legg-to-be-his- successor-for-state-senate/. 27

boundaries. In order to keep all of Representative Legg‘s population in District 18, the Legislature was forced to jettison non-Legg population by cutting off the upper northeast corner of Sumter County. As the Coalition‘s alternative plan shows, keeping Sumter and Hernando Counties whole was entirely possible. The

Coalition‘s alternative plan also shows that drawing a compact district was possible. Not only is the Coalition‘s District 18 far more visually compact, it scores far better than the Legislature‘s district: 0.44 on the Reock measure of compactness and 0.73 on the Area/Convex Hull measure of compactness. Id.

Because the Coalition‘s plan ―achieves all of Florida‘s constitutional criteria without subordinating one standard to another[, it] demonstrates that it was not necessary for the Legislature to subordinate a standard in its plan.‖ Op. at *43.

E. Districts 21 and 26 Are Unconstitutional.

Districts 21 and 26 are partisan and incumbent protectionism at its peak. In these districts, a Senate incumbent introduced a last-minute amendment so as to provide safe, open seats for two well-known Republicans (one a House incumbent) who otherwise would have had to run against one another in a Republican primary.

―There is no question that the goal of minimizing opportunities for political favoritism was the driving force behind the passage of the Fair Districts

Amendment.‖ Op. at *41. This is exactly the type of political favoritism and self- dealing that Article III, Section 21 was meant to end.

Under the initial proposals for the new Senate map from Chairman Gaetz,

(S9016 and S9026), one current House incumbent, Representative Denise

Grimsley and one former Representative Bill Galvano – both of whom had already filed to run for Senate this year and had already begun to fundraise for their Senate campaigns12 – had been pitted against each other in Senate District 24. The media took note of this pairing. As one blogger sarcastically wrote upon seeing the map that Senator Gaetz released on March 17: ―[U]nless I am missing something or

Google Maps isn‘t working, someone better file an amendment real quick and put

Denise Grimsley in District 26. Otherwise, we‘re gonna have one heckuva a [sic] primary on our hands.‖13

Not surprisingly, someone did file an amendment to avoid this ―heckuva primary.‖ Two minutes before the 5:00 pm deadline for filing floor amendments on March 21, Senator Jack Latvala offered an amendment that shifted territory

12 See Denise Grimsley for State Senate, http://www.denisegrimsley.com/; https://www.campaigndonate.com/grimsley/, last visited March 28, 2012; Bill Galvano for State Senate, Facebook Page http://www.facebook.com/pages/Bill- Galvano-for-State-Senate/93037564339#!/pages/Bill-Galvano-for-State- Senate/93037564339?sk=wall, last visited March 28, 2012. 13 See Peter Schorsch, Am I missing something or are Bill Galvano and Denise Grimsley drawn in the same Senate district?, SAINTPETERSBLOG, Mar. 19, 2012, http://saintpetersblog.com/2012/03/am-i-missing-something-or-are-bill-galvano- and-denise-grimsley-drawn-in-the-same-senate-district/. 29

among the districts in Central Florida.14 This amendment had never been mentioned, much less discussed, by the Senate Committee on Reapportionment.

The intent behind Senator Latvala‘s amendment was obvious: to separate two fellow Republicans and ensure that each had a safe, open, district in which to run.

Indeed, Senators pointed this out on the Senate floor, asking Senator Latvala: ―It is my understanding that in the map that is being put forward today by Chairman

Gaetz, this CS for SJR-2B, that there are two announced candidates in the area that would both be competing in one seat. And my question to you is, in your amendment that you are offering today, is the result of that amendment that those two candidates will be in different districts?‖ Tr. of Senate Floor Debate at 158

(Mar. 22, 2012). Senator Latvala responded that it was his ―understanding that the

Constitution refers to incumbents and political parties, and a candidate is not an incumbent or a political party‖ and he could not ―imagine that since there is [sic] only candidates within one party, we are advantaging one party over another.‖ Id. at 159.

Senator Dockery then aptly remarked that ―[t]o the question about whether or not this helps some other candidates not be in the same district, I think we all know that that is the case. And I understand that people in here want to help their

14 See The Florida Senate, CS/SJR 2-B: Joint Resolution of Apportionment, Bill Page, http://www.flsenate.gov/Session/Bill/2012B/0002 (showing that amendment was filed at 4:58pm on March 21, 2012). 30

friends, some of the House members, to come over here, but that should not be done on the backs of citizens of Polk County.‖ Id. at 169. As the Senator representing Polk County, Senator Dockery objected to the fact that the Latvala amendment dropped Polk County‘s share of District 21 from 50.2% to 39.4%.

Nonetheless, the Senate went ahead and passed Senator Latvala‘s amendment ―on the backs of the citizens of Polk County.‖

Senator Latvala‘s amendment shifted the easternmost border of District 24, ensuring that Representative Grimsley‘s hometown of Sebring and her residence would fall into a different district than former Representative Bill Galvano‘s. If

S9030 stands, Grimsley will run in District 21, and Galvano will run in District 26.

This is precisely the sort of partisan and incumbent protection that Article III,

Section 21 is intended to prevent.

F. District 32 Is Unconstitutional.

The Legislature’s District 32 sprawls through four counties in a blatant attempt to ensure that this remains a safe Republican seat for incumbent Senator

Negron. District 32 is not a minority opportunity district, nor does it share a border with any minority opportunity district. There is simply no justification for its disregard of the constitutional mandate to utilize political and geographical boundaries where feasible. Instead, the Legislature was intent on protecting

Senator Negron by giving him a district in which he retains 72.2% of his former constituents. See App. at I-2.

This Court has already held that a desire to keep “coastal communities together and separate from rural communities” does not justify disregarding the

Tier 2 criteria. Op. at *61. Yet that is exactly what the Legislature chose to do with District 32. It is a “majority-white voting-age population” district and “[t]hus, no considerations with respect to Florida’s minority voting protection provision come into play.” Id. at *62. “[M]aintaining communities of interest is not required by the constitution, and comporting with such a principle must not come at the expense of complying with constitutional imperatives. We also consider it significant that [the district] maintained a large percentage of the same constituency as the predecessor district.” Id. at *68.

As is depicted below, the Legislature’s coastal District 32 looks as if someone pushed it northward from where it otherwise should have abutted District

27. And indeed, by pushing it northward into Indian River County, the district is kept safely Republican, at 46.8% Democratic performance (using the two-race average). See App. at F-3.

When looking at the Senate’s “pick-and-choose legislative discretion” as to which boundaries to follow in District 32, Op. at *39, the Senate’s motivations become obvious. As is depicted below, rather than following I-95 or following county lines, the Legislature instead followed lines that appear to be based solely on partisan performance, going northward into Indian River County to pull a heavily Republican pocket of voters from Vero Beach into District 32 and avoiding the Democratic pocket of voters between I-95 and the Florida Turnpike.

Had the Legislature instead kept Martin County intact (as the Coalition’s alternative map did), or included more voters from St. Lucie County (as the

Coalition’s alternative map did), the district would have become less safe for

incumbent Senator Negron. See App. at F-3, F-5 (showing partisan performance of

Coalition’s District 32 at 49.3% Democratic performance vs. Legislature’s District

32 at 46.8% Democratic performance). Moreover, by pushing District 32 northward, the Legislature also succeeded in keeping District 16 safely Republican for Republican incumbent Senator Altman, at 44.3% Democratic performance

(using the two-race average). See App. at F-2.

As shown below, the Coalition‘s alternative plan demonstrates a constitutionally compliant way to draw the district.

The Coalition plan keeps Martin County intact and contained wholly within

District 32. It also makes District 32 far more compact, scoring 0.41 on the Reock measure of compactness as compared to the Legislature‘s 0.23. See App. at C-4.

Because there are no Tier 1 justifications for the Legislature‘s violations of

Tier 2 in District 32 and because the Coalition has offered an ―alternative plan that achieves all of Florida‘s constitutional criteria without subordinating one standard 35

to another,‖ the Coalition has ―demonstrate[d] that it was not necessary for the

Legislature to subordinate a standard in its plan‖ and has ―provide[d] circumstantial evidence of improper intent‖ with respect to District 32. Op. at *43.

G. District 39 Is Unconstitutional.

This Court clearly stated that the extent to which the Senate has failed to draw districts that comply with Tier 2 ―serves as an objective indicator of the impermissible legislative purpose proscribed under tier one (i.e., intent to favor or disfavor a political party or an incumbent).‖ Op. at *41. In District 39, the Senate did both: it sacrificed compactness in order to draw an incumbent into a safe district, thereby preserving safe seats for all surrounding incumbents and confining the influence of Democratic voters to as few districts as possible.

It is immediately apparent that District 39 is precisely the sort of ―bizarrely- shaped district,‖ Id. at *38, that this Court struck down when it invalidated District

10 in the first Senate plan. Just like District 10, this district is ―visually non- compact as a result of […] bizarrely shaped appendage[s].‖ Id. at *66. It contains a large swath of minimally-populated territory, but at its two eastern corners, two spindly appendages protrude. These appendages narrowly weave between communities to grab pockets of Democratic, African-American voters and pull them into one highly-Democratic district. The northernmost appendage stretches almost 19 miles from the body of the district and narrows to the width of the

airport before reaching up to grab parts of Brownsville, Gladeview and Pinewood.

It then turns south, narrowing to merely 350 feet before ballooning into a dangling bulb designed solely for the purpose of packing as many Democratic, African-

American voters into the district as possible so as to remove their voting power from surrounding districts.

The district‘s southern appendage is no better, stretching over 11 miles from

Homestead into Richmond Heights, again for no reason other than to grab

Democratic, African-American voters. Moreover, it just so happens that at the very tip of this appendage is the residence of House incumbent Representative

Dwight Bullard, who is running for the Senate seat of his mother, Senator Larcenia

Bullard, the term-limited incumbent who has held District 39.15 District 39 includes not only Representative Bullard‘s residence, but also 72.7% of the district he represented in the House, House District 118. See App. at L-3.

But in addition to ensuring that Representative Bullard can take his mother‘s

Senate seat this bizarrely-shaped appendage provides additional favoritism. By drawing District 39 this way, the Senate was able to preserve safe seats for all of the other incumbents in the neighboring districts. None of the districts surrounding the appendage are remotely politically competitive, and no more than one incumbent resides in any of them. A Republican incumbent who lives just slightly over a mile away from Representative Bullard in District 39 is assured a safe

15 See Florida Division of Elections, Candidate Listing for 2012 General Election. 38

Republican seat in District 37, directly to the west of the appendage. Another

Republican incumbent is drawn into solid Republican District 40 directly to the north of the appendage. And a Democratic incumbent is drawn into District 35, a safe Democratic district directly to the east of the appendage. See App. at F-3.

As this Court has held: ―Where it can be shown that it was possible for the

Legislature to comply with the tier-two constitutional criteria while, at the same time, not diminishing minorities‘ ability to elect representatives of choice or denying minorities an equal opportunity to participate in the political process, the

Legislature‘s plan becomes subject to a concern that improper intent was the motivating factor for the design of the district.‖ Op. at *42. Although the Senate contended that it was compelled by Article III, Section 21(a) and Section 5 of the

Voting Rights Act to draw this appendage, this is flatly untrue. The Coalition‘s corresponding district shows that it is possible to provide African-American voters an ability to elect representatives of their choice while simultaneously respecting the compactness and anti-favoritism requirements.

The Coalition‘s District 39 has virtually the same African-American voting age population as does the Legislature‘s District 39: the Legislature‘s is 32.6%

African-American voting-age population; the Coalition‘s district contains 32.5%.

See App. at D-2, D-4. But the Coalition‘s district is markedly more visually compact, containing a broader northern segment that no longer displays a barely-

dangling bulb, and eliminating the southern appendage entirely. Just as this Court held District 10 ―constitutionally defective‖ for being ―visually non-compact and clearly encompass[ing] an incumbent in [an] appendage,‖ it now must hold District

39 unconstitutional. Op. at *67.

A closer look at District 39‘s southern appendage reveals the Senate‘s undeniable partisan agenda: the appendage keeps Democratic voters out of surrounding districts and preserves solid Republican districts for two Republican incumbents on its borders (Districts 37 and 40). The image below displays how

Democratic-leaning the voters are who live in that appendage compared to the residents of the surrounding districts:

As the Coalition‘s alternative plan demonstrates, drawing a compact District

39 without this appendage makes District 37 a competitive Democratic district rather than a solidly Republican district. Under the Legislature‘s plan, District 37 has a 44.5% Democratic performance (using the two-race average). Under the

Coalition‘s plan, District 37 has a 54.4% Democratic performance (using the two- race average). See App. at F-3, F-5. Thus, beyond proving that a more compact district can still protect the ability of minorities to elect candidates of their choice, the Coalition‘s alternative demonstrates that it is possible to fulfill the spirit of

Article III, Section 21: to ―maximize electoral possibilities by leveling the playing 41

field‖ by ensuring ―equality among all voters and by increasing opportunities for all candidates.‖ Brown v. Sec’y of Fla., 668 F.3d 1271, 1281, 1285 (11th Cir.

2012) (emphasis in original).

***

As this Court has held, ―the extent to which the Legislature complies with the sum of Florida‘s traditional redistricting principles [in tier two of Article III,

Section 21] serves as an objective indicator of the impermissible legislative purpose proscribed under tier one.‖ Op. at *41. Here, despite this Court‘s explicit guidance, the Legislature did not make any real attempt to comply with Florida‘s redistricting principles. Not only is the Legislature‘s failure to draw compact districts that utilize existing political and geographical boundaries an independent constitutional violation, it is also an objective indicator of the Legislature‘s impermissible intent to draw districts so as to favor the Republican Party and incumbents. Under this Court‘s interpretation of Article III, Section 21, the

Legislature‘s revised Senate map is plainly unconstitutional.

III. THIS COURT IS REQUIRED TO APPORTION THE DISTRICTS. The Court provided the Legislature with ―direction as to the specific constitutional problems that [it] conclude[d] have been proven and to the general problems with the entire Senate plan,‖ and expressed ―confiden[ce]‖ in the

Legislature‘s willingness to take that direction. Op. at *78. As is set forth above,

the Senate did not take the Court‘s direction. While the Court‘s ―constitutional obligation of drawing a plan‖ is a ―course of last resort,‖ id., it is now the only course available to the Court.

Under the Florida Constitution, the Senate does not get another chance.

Article III, Section 16(f), requires that ―should the supreme court determine that the apportionment made is invalid, the court shall, not later than sixty days after receiving the petition of the attorney general, file with the custodian of state records an order making such apportionment.‖ Fla. Const., art. III, §16(f). As the

United States Supreme Court has explained: ―Although the legislative branch plays the primary role in congressional redistricting, our precedents recognize an important role for the courts when a districting plan violates the Constitution.‖

League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 415 (2006); cf.

DeGrandy v. Wetherell, 794 F. Supp. 1076, 1083 (N.D. Fla. 1992) (holding that

―[w]hile it is the duty of the legislature to redistrict the state, when the legislature is unable to adopt a redistricting plan, the obligation of devising a redistricting scheme falls upon the courts‖).

As this Court goes about its task of reapportionment, the Coalition respectfully suggests that the Court use the Coalition plan as its guide. The

Coalition‘s plan was drawn in full compliance with this Court‘s guidance in its

March 9th opinion. It faithfully adheres to Tier 2 criteria while not diminishing the

ability of minorities to elect candidates of choice or to participate in the political process. In so doing, the Coalition also creates a politically fair map. As a result of following this Court‘s guidance rather than gerrymandering a map to favor a political party or incumbents, the Coalition‘s map results in a plan that does not favor one party over another and does not draw districts to favor incumbents.

This Court found that ―fairness in drawing the legislative districts‖ was the

―focus‖ of Article III, Section 21. Op. at *8. Overall, ―the intent of the voters … was to require the Legislature to redistrict in a manner that prohibits favoritism or discrimination.‖ Id. at *33. Unfortunately, the Legislature has proven unable to redistrict in a manner that prohibits favoritism or discrimination. The Coalition‘s proposed plan fully implements the intent of the voters and therefore the Coalition requests that the Court consider adopting the Coalition plan as the new Senate apportionment plan.

CONCLUSION This Court gave the Legislature a second chance to comply with the will of the voters and the Legislature again failed. Unable to help itself, the Legislature persisted in its pursuit of partisan gain and incumbent self-interest. The Coalition therefore respectfully requests that this Court declare the Senate plan invalid and undertake the Court‘s constitutionally-imposed duty to reapportion the state. In so doing, the Court should use the Coalition‘s plan as a guide.

Respectfully submitted this 10th day of April, 2012.

/s/ Ronald G. Meyer Florida Bar No. 0148248 MEYER, BROOKS, DEMMA AND BLOHM P.A. 131 North Gadsden Street Tallahassee, Florida 32302 Telephone: (850) 878-5212

Paul M. Smith* [email protected] Michael B. DeSanctis* [email protected] Jessica Ring Amunson* [email protected] Kristen M. Rogers* [email protected] *Pro Hac Vice pending JENNER & BLOCK, LLP 1099 New York Ave NW, Suite 900 Washington, DC 20001 Telephone: (202) 639-6000 Facsimile: (202) 639-6066

J. Gerald Hebert* [email protected] Pro Hac Vice pending 191 Somervelle Street, #415 Alexandria, VA 22304 Telephone: (703) 628-4673

Counsel for The Coalition

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was served to all parties appearing on the most recently revised service list at the time of service as of this 10th day of April, 2012. Service was made via email and mail to the following:

Mike Haridopolos President of the Senate Room 409, The Capitol 404 South Monroe Street Tallahassee, Florida 32399-1110 [email protected]

Dean Cannon Speaker of the House Room 420, The Capitol 402 South Monroe Street Tallahassee, Florida 32399-1300 [email protected]

Timothy D. Osterhaus Deputy Solicitor General OFFICE OF THE ATTORNEY GENERAL PL-01, The Capitol Tallahassee, Florida 32399-0400 [email protected]

Counsel for the Attorney General

Michael A. Carvin Andy Bardos JONES DAY Special Counsel to the President 51 Louisiana Avenue N.W. THE FLORIDA SENATE Washington, D.C. 20001 404 South Monroe Street, Suite 409 [email protected] Tallahassee, Florida 32399 [email protected] Cynthia Skelton Tunnicliff Peter M. Dunbar Raoul G. Cantero PENNINGTON, MOORE, ET AL. Jason N. Zakia 215 South Monroe Street WHITE & CASE LLP Second Floor Southeast Financial Center Tallahassee, Florida 32301 200 South Biscayne Blvd., Suite 4900 [email protected] Miami, Florida 33131 [email protected] [email protected] [email protected] Counsel for the Florida Senate

Miguel De Grandy Charles T. Wells MIGUEL DE GRANDY, P.A. George N. Meros, Jr. 800 Douglas Road, Suite 850 Jason L. Unger Coral Gables, Florida 33134 Allen C. Winsor [email protected] Charles B. Upton II GRAYROBINSON, P.A. George T. Levesque Post Office Box 11189 General Counsel Tallahassee, Florida 32302 FLORIDA HOUSE OF REPRESENTATIVES [email protected] 422 The Capitol [email protected] Tallahassee, Florida 32399-1300 [email protected] [email protected] [email protected] [email protected]

Counsel for the Florida House of Representatives

Joseph W. Hatchett Marc Erik Elias AKERMAN SENTERFITT PERKINS COIE, LLP 106 East College Avenue, Suite 1200 700 Thirteenth Street, NW, Suite 600 Tallahassee, Florida 32301 Washington, DC 20005 [email protected] [email protected]

John M. Devaney Karen C. Dyer PERKINS COIE, LLP Elan M. Nehleber 700 Thirteenth Street, NW, Suite 700 BOIES, SCHILLER & FLEXNER, LLP Washington, DC 20005 121 South Orange Avenue [email protected] Suite 840 Orlando, Florida 32801 Kevin J. Hamilton [email protected] Abha Khanna [email protected] PERKINS COIE, LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 [email protected] [email protected]

Jon L. Mills BOIES, SCHILLER & FLEXNER, LLP 100 Southeast Second Street Suite 2800 Miami, Florida 33131 [email protected]

Counsel for the Florida Democratic Party

David A. Theriaque Timothy J. McCausland S. Brent Spain CITY OF LAKELAND Christopher F. Busch 228 South Massachusetts Avenue THERIAQUE & SPAIN Lakeland, Florida 33801 433 North Magnolia Drive [email protected] Tallahassee, Florida 32308 [email protected] [email protected] [email protected]

Counsel for the City of Lakeland, Florida

Ronald A. Labasky BREWTON PLANTE, PA 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 [email protected]

Counsel for the Florida State Association of Supervisors of Elections, Inc.

Charles G. Burr Allison J. Riggs BURR & SMITH, LLP Anita S. Earls Grand Central Place SOUTHERN COALITION FOR SOCIAL 442 W. Kennedy Blvd., Ste. 300 JUSTICE Tampa, Florida 33606 1415 W. Highway 54, Suite 101 [email protected] Durham, NC 27707

Victor L. Goode Dorcas R. Gilmore NAACP 4805 Mt. Hope Drive Baltimore, MD 21215 Telephone: (410) 580- 5673

Counsel for Florida State Conference of NAACP Branches

/s/ Ronald G. Meyer

CERTIFICATE OF COMPLIANCE I certify that this submission complies with the typeface requirements of

Florida Rule of Appellate Procedure 9.210. This brief was typed using Times New

Roman, 14 point font.

/s/ Ronald G. Meyer