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IN the CIRCUIT COURT of the SECOND JUDICIAL CIRCUIT in and for LEON COUNTY, FLORIDA the LEAGUE of WOMEN VOTERS of FLORIDA, Et Al

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IN the CIRCUIT COURT of the SECOND JUDICIAL CIRCUIT in and for LEON COUNTY, FLORIDA the LEAGUE of WOMEN VOTERS of FLORIDA, Et Al IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Plaintiffs, vs. Case No. 2012-CA-002842 KENNETH W. DETZNER, et al., Defendants. ___________________________________/ THE FLORIDA SENATE’S MOTION FOR APPOINTMENT OF A COURT- APPOINTED CONSULTANT TO DRAW THE SENATE MAP The Florida Senate and Andy Gardiner, in his official capacity as President of the Florida Senate (together the “Senate”), hereby move for the appointment of a court-appointed consultant to draw a remedial Senate plan, subject to Court’s approval, and state as follows: 1. On July 28, 2015, this Court entered a Consent Judgment which held that the Senate apportionment plan adopted by the Florida Legislature in 2012 violates Article III, § 21 of the Florida Constitution and ordered the Legislative Parties to file a remedial apportionment plan no later than November 9, 2015. 2. The Florida Legislature convened in special session beginning on October 19, 2015, in an effort to adopt a remedial Senate plan. On October 28, the Florida Senate passed Plan 9124 by a 22-18 vote. On November 3, the Florida House of Representatives passed an amendment to Plan 9124 (Plan 9079) by a 73-47 vote. On November 5, 2015, the Florida Senate rejected Plan 9079 by a 16-23 vote. The Legislature then adjourned without adopting a remedial plan. Americas 90785607 League of Women Voters of Florida, et al. v. Detzner, et al. Case No. 2012-CA-002842 3. Without a legislatively adopted remedial plan to review, this Court must now determine how to implement a remedial plan for Florida’s Senate districts. As explained below, this Court should appoint a consultant to draw a remedial Senate plan, subject to Court approval. The appointment of a consultant would streamline this litigation and reduce the burden to the parties and Florida’s taxpayers by eliminating the need for costly discovery and a five-day evidentiary hearing. It would also eliminate any suspicion that the adopted map was laden with improper intent. 4. As Plaintiffs stated in the congressional redistricting case, “[s]hould it become necessary for this Court to implement a remedial congressional redistricting plan, there are a number of approaches the Court might use. The Court could request that the parties submit alternative plans and then select from among the alternatives presented to it; or the Court could appoint a special master to assist it in drawing a new plan; or the Court could redraw the plan itself” (Exhibit A at 8). Plaintiffs noted recent examples where “state courts used special masters to assist in preparing redistricting plans” or “drew the redistricting plans itself (with assistance from technical advisors).” Id. (citing In re Petition of Apportionment Commission, No. SC 18907 (Conn. Jan. 3, 2012); Order Adopting and Approving Special Master’s Report and Redistricting Maps as Modified by the Court, Guy v. Miller, No. 11-0C-00042-1B (Nev. Dist. Ct. Oct. 27, 2011)); see De Grandy v. Wetherell, 794 F. Supp. 1076, 1081 (N.D. Fla. 1992) (adopting the plan of the court-appointed special master after the Florida Legislature failed to draw a congressional plan); see also Favors v. Cuomo, Docket No. 11–CV–5632 (RR)(GEL)(DLI)(RLM), 2012 WL 928223, at *2 (E.D.N.Y. 2014) (noting the retention of an expert to “assist . this court in fashioning redistrict relief” for New York’s congressional districts); In re Reapportionment Comm’n, 36 A.3d 661, 661 (Conn. 2012) (adopting Americas 90785607 2 League of Women Voters of Florida, et al. v. Detzner, et al. Case No. 2012-CA-002842 congressional plan drawn by a special master); In re Legislative Redistricting of State, 805 A.2d 292, 295 (Md. 2002) (noting the appointment of an expert as a technical consultant “to assist the Court in preparing a [legislative] redistricting plan that complied with applicable federal and state law”)); Rodriguez v. Pataki, No. 02 Civ. 618(RMB), 2002 WL 1058054, at *2 (S.D.N.Y. 2002) (noting retention of a special master to redraw New York’s congressional districts). 5. The Court should follow Plaintiffs’ suggestion and appoint an expert in this case to draw a remedial map. Such an appointment would streamline this litigation by avoiding unnecessary litigation over the legality of plans proposed by the parties. As a case on which Plaintiffs relied noted, the appointment of an expert allows a court to resolve redistricting litigation in “a timely, cost effective, and practical manner.” Guy v. Miller, No. 11 OC 00042 1B, 2011 WL 7665875, at *1 (Nev. Dist. Ct. Oct. 27, 2011). 6. Under the current scheduling order, this Court will hold a five-day evidentiary hearing in from December 14 to 18 to hear evidence and argument related to any plans the parties submit (Exhibit B at 4). Moreover, unlike in the congressional remedial proceeding, the scheduling order also contemplates a period of discovery to allow the parties to request document production and depose factual and expert witnesses (id. at 4). The appointment of a consultant to draw a remedial map would avoid this burdensome and costly process, and reduce the likelihood of further appeals. 7. More importantly, the appointment of a court-appointed consultant would eliminate any suspicion that a submitted plan was drawn with improper intent to favor a political party or incumbent. Here, Plaintiffs have a demonstrated history of asking courts to adopt a redistricting map drawn with improper intent. In both this case and the congressional redistricting litigation, Plaintiffs engaged a Democrat microtargeting firm, Strategic Telemetry, Americas 90785607 3 League of Women Voters of Florida, et al. v. Detzner, et al. Case No. 2012-CA-002842 to draw their alternative maps (Exhibit C at 2; Exhibit D at 2). Discovery in the congressional litigation revealed that the alternative map prepared by Strategic Telemetry for Plaintiffs during the 2012 legislative session, and submitted by Plaintiffs to the trial court in support of their motion for summary judgment, was fraught with improper partisan intent. Indeed, Strategic Telemetry was explicit about the “principles” that would guide its creation of the alternative map, stating that the “[u]nderlying goal is to increase the number of safe Democratic seats and the number of competitive seats” (Exhibit E). 8. Moreover, in the congressional case, Plaintiffs took the position that their intent was irrelevant (Exhibit F at 41). But if Plaintiffs ask this Court to adopt one of their maps, then their maps are on trial, and they must comply with the constitutional requirements—including party and incumbent neutrality. Rather than consider plans drawn by parties who consider their own intent to be irrelevant, the Court should instead direct a consultant to prepare a plan in an incumbent and party-neutral fashion. 9. The Senate intends to engage in the necessary discovery to uncover evidence of any efforts to manipulate this remedial process and to draw maps with improper intent. This Court and the parties could avoid the burdens of this discovery, however, and avoid a weeklong evidentiary hearing on proposed maps, if the Court appoints its own consultant to draw a remedial plan in a manner that avoids favoritism to any political party or incumbent while satisfying the remaining tier-one and tier-two criteria. 10. Should the Court agree to appoint a consultant, the Senate recommends the appointment of Dr. Nathaniel Persily, a professor at Stanford Law School who is an expert in election law and redistricting. Several courts have appointed Dr. Persily to provide map-drawing assistance in previous redistricting cases. See, e.g., Favors, 2012 WL 928223, at *2 (noting the Americas 90785607 4 League of Women Voters of Florida, et al. v. Detzner, et al. Case No. 2012-CA-002842 retention of Dr. Persily to “assist . this court in fashioning redistrict relief” for New York’s congressional districts); In re Reapportionment Comm’n, 36 A.3d at 661 (adopting congressional plan drawn by Dr. Persily serving as special master); In re Legislative Redistricting of State, 805 A.2d at 295 (noting the appointment of Dr. Persily as a technical consultant “to assist the Court in preparing a [legislative] redistricting plan that complied with applicable federal and state law”); Rodriguez, 2002 WL 1058054, at *2 (noting the retention of Dr. Persily as a consultant by a special master redrawing New York’s congressional districts). Indeed, Plaintiffs themselves cited Dr. Persily’s work in the congressional redistricting case (Exhibit A at 8). Dr. Persily’s curriculum vitae is attached hereto as Exhibit G.1 11. Alternatively, the Senate suggests the appointment of Dr. Bernard Grofman, a professor of political science at the University of California, Irvine. The United States District Court for the Eastern District of Virginia recently appointed Dr. Grofman as a special master to assist and advise the court with respect to a redistricting remedy in a challenge to Virginia’s congressional districts. Order, Personhuballah v. Alcorn, Civil Action No.: 3:13-cv-678 (E.D. Va. Sept. 25, 2015) (attached hereto as Exhibit H). The Florida Supreme Court specifically relied on Dr. Grofman’s academic work in its Apportionment I decision. See In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597, 617, 635 (Fla. 2012). The United States Supreme Court also relied on Dr. Grofman’s work in its seminal Gingles decision. See Thornburg v. Gingles, 478 U.S. 30, 48-48, 62, 68 (1986). Dr. Grofman’s curriculum vitae is attached as Exhibit I. 1 Dr. Persily acted as a consultant to the Florida House of Representatives in the preparatory stages of the redistricting process in 2011.
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