IN THE SUPREME COURT OF

GLENDA E. HOOD, Secretary ) of State of the State of Florida, ) ) Petitioner, ) Case No. SC 03-128 ) vs. ) Fourth District ) Case Nos. 4D02-2353 & 4Do2-2401 REP. CORRINE BROWN, et al., ) ) Respondents ) )

ON PETITION TO REVIEW A DECISION OF THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT

AMENDED INITIAL BRIEF ON JURISDICTION OF PETITIONER SECRETARY OF STATE GLENDA E. HOOD

STEEL HECTOR & DAVIS LLP Counsel for Secretary of State JOSEPH P. KLOCK, JR., FBN 156678 GABRIEL E. NIETO, P.A., FBN 147559 JUAN CARLOS ANTORCHA, FBN 523305 200 South Biscayne Boulevard , Florida 33131-2398 Ph: (305) 577-2855 Fax: (305) 577-7001 TABLE OF CONTENTS

Page

TABLE OF CONTENTS ...... ii

TABLE OF AUTHORITIES ...... iii

LIST OF ABBREVIATIONS USED IN THIS BRIEF ...... v

INTRODUCTION ...... 1

STATEMENT OF THE CASE ...... 2

SUMMARY OF THE ARGUMENT ...... 4

ARGUMENT ...... 5 I. THE DECISION BELOW EXPRESSLY CONSTRUED PROVISIONS IN BOTH THE FEDERAL AND STATE CONSTITUTIONS ...... 5 II. THE DECISION BELOW HAS FAR REACHING IMPLICATIONS ON FEDERAL REAPPORTIONMENT AND FUNDAMENTAL ISSUES OF COMITY THAT REQUIRE REVIEW BY THE STATE’S HIGHEST COURT ...... 10

CONCLUSION ...... 10

CERTIFICATE OF SERVICE ...... 12

CERTIFICATE OF TYPE SIZE AND STYLE ...... 13

SERVICE LIST ...... 14 TABLE OF AUTHORITIES

Cases Brown v. Butterworth, Case Nos. 4D02-2353 and 4D02-2401, Slip. Op. (Fla. 4th DCA 2002)...... 3

Bush v. Gore, 531 U.S. __ (2000) ...... 9

Cook v. Gralike, 531 U.S. 510 (2001) ...... 6, 7, 9

Diaz-Balart v. Harris, Case No. 4:02cv 109-RH ...... 1

Florida Senate v. Forman, 27 Fla. L. Weekly S733 (Fla. 2002) ...... 5

Hawke v. Smith, 253 U.S. 221 (1920) ...... 9

Howlett v. Rose, 496 U.S. 356 (1990) ...... 3

Lesser v. Garnett, 258 U.S. 130 (1922) ...... 9

Martinez v. Bush, Case No. 02-20244 CIV-JORDAN ...... 1

Maurer v. Florida, Case No. 02-10028 CIV-JORDAN ...... 1

McPherson v. Blacker, 146 U.S. 1 (1892) ...... 8

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ...... 6, 7, 9

iii United States v. Classic, 313 U.S. 299 (1941) ...... 7

White v. Weiser, 412 U.S. 783 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964)) ...... 4, 7

Ex parte Yarborough, 110 U.S. 274 (1884) ...... 7

Statutes

U.S. Const. Art. I, §§ 1 & 2...... 6, iv

iv LIST OF ABBREVIATIONS USED IN THIS BRIEF

App. The Appendix to this Brief

Elections Clause U.S. Const. Art. I, § 4, cl. 1.

Plaintiffs Respondents, plaintiffs below, Rep. Carrie Meek, Rep. , and Sallie Stephens.

Redistricting Plan House Bill 1997; Florida’s plan for reapportionment of federal Congressional District’s based upon the 2000 Decennial Census, and enacted by the Legislature and signed into law by the on March 27, 2002

Secretary Petitioner, Glenda E. Hood, Secretary of State for the State of Florida.

i INTRODUCTION

At issue is one of several legal challenges brought against Florida’s plan for reapportioning federal Congressional districts in light of the 2000 decennial census

(the “Redistricting Plan”).1 While all other such challenges were appropriately filed in federal court and sought relief under federal law, this case purports to challenge the federal Redistricting Plan in state court and solely under state law, and therein lies the crux of the issue.

In the decision below the Fourth District expressly construed the state and federal constitutions as allowing such a claim, notwithstanding the federal nature of the Legislature’s exercise of its delegated power over Congressional elections.

The decision below thus invites Florida courts to intrude into matters that are purely federal in nature. In creating this new right of action, the Fourth District decision ultimately creates a direct collision between our state constitution and the conduct of federal elections. In essence, the Fourth District has created a “reverse supremacy” principle, giving the circuit court newfound state-law power over federal Congressional officers. This turns the very concept of federalism on its head.

1 This case is but one of a series of parallel and nearly identical challenges brought by closely aligned partisan interests. The others were resolved by a multi- district federal panel that took up three consolidated cases. Martinez v. Bush, Case No. 02-20244 CIV-JORDAN/Garber (S.D. Fla.), Diaz-Balart v. Harris, Case No. 4:02cv 109-RH/wcs (N.D. Fla.) and Maurer v. Florida, Case No. 02-10028 CIV- JORDAN/Brown (S.D. Fla.) (collectively “Martinez”).

1 To say the least, that decision cries out for review by this Court. The decision below expressly construes various provisions of the constitutions of

Florida and the United States. This Court therefore has discretionary jurisdiction under Article V § 3(b)(3) of the Constitution of Florida, and should act to fully consider the important matters of federalism and state and federal constitutional law that are at issue.

STATEMENT OF THE CASE

The Redistricting Plan was enacted by the Legislature, pursuant to the powers directly delegated to it by the Constitution of the United States. While the protections and limitations of federal law clearly govern the exercise of such powers, Plaintiffs took the novel tack of purporting to bring their claims below in state court, and solely under state law. Id. This was done to avoid removal and consolidation with the federal proceeding.2

Based on the federal nature of the Redistricting Plan, it was argued below that there is no jurisdiction in the state courts and, alternatively, even if such jurisdiction existed, Plaintiffs failed to plead a cause of action, as the Legislature’s

2 The Plaintiffs filed an earlier state court action raising the same allegations employed in the case at bar, but under federal law. See Brown v. State, Case No. 02001556. When that case was removed to federal court and was set to be consolidated before the multi-district panel, Plaintiffs voluntarily withdrew the action. They then refiled raising the very same allegations as before, but this time purporting to seek relief solely under state law. The desire to forum shop and bypass federal removal was obvious.

2 exercise of federal powers is not governed by state law. The trial court dismissed based upon its determination that it had no jurisdiction over federal elections.

Plaintiffs appealed to the Fourth District, arguing that the circuit court had subject matter jurisdiction over their claims and that state law applied. The Fourth

District agreed and reversed, finding that the state constitution grants the circuit court power over federal elections.3 Brown v. Butterworth, Case Nos. 4D02-2353 and 4D02-2401, Slip. Op. (Fla. 4th DCA 2002), App. at 3-4.

The Fourth District at several turns expressly construed both the state and federal constitutions, repeatedly invoking article III, section 16 of the Florida

Constitution and the Equal Protection clauses of both the United States and Florida

Constitutions, in determining that the case should go forward. See App., at 3-5.

But in all of this the Fourth District paid little heed to the federal nature of the delegated powers at issue. Instead the district court relied primarily on little more than that the state constitution provides no express bar to challenging reapportionment in circuit court, and glossing over the restrictions in federal law,

3 On appeal to the Fourth District, the Secretary again argued that Plaintiffs had failed to plead a cause of action as there is no substantive state law that governs the Redistricting Plan. This argument was rejected, apparently due to the Fourth District’s mistaken impression that Plaintiffs had raised concurrent federal claims under the Voting Rights Act and other federal law. At several places the decision below cites cases such as Howlett v. Rose, 496 U.S. 356 (1990), which express the principle of state court concurrent jurisdiction over federal claims. Brown, Slip. Op., App., at 3-4.

3 extended the reach of the state constitution to the halls of Congress and thereby created a new “removal-proof” state forum.

SUMMARY OF THE ARGUMENT

This case involves the election process for members of Congress. With the exception of the limited delegation of authority to issue procedural regulations concerning the times, places and manner, state law cannot impede or otherwise affect a congressional election. Article I, section 4, clause 2 of the United States Constitution delegates to the legislatures of the several States the power to select the “Times, Places and Manner” for choosing their respective congressional representatives. No other power in this context is delegated and, thus, no other power exists. The of the federal constitution makes this the supreme law of the land. U.S. CONST. art. VI, § 2. The delegation of power in the federal constitution includes the authority to draw and redraw congressional electoral districts. The Supreme Court has long recognized that congressional redistricting plans enacted pursuant to this delegation of power are subject only to constraints imposed by federal law. See e.g., White v. Weiser, 412 U.S. 783, 794 (1973) (“[R]eapportionment is primarily a matter for legislative consideration and determination, [and] judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having an adequate opportunity to do so.”) (emphasis added). The decision below is completely contrary to established principles of federal law and should be reviewed by this Court.

ARGUMENT

I. THE DECISION BELOW EXPRESSLY CONSTRUED PROVISIONS IN BOTH THE FEDERAL AND STATE CONSTITUTIONS.

4 Expressly construing and applying provisions of the state and federal constitutions the Fourth District concluded that an action founded on state law may be brought in state court with regard to federal Congressional redistricting.4

Although the extent of state power over federal elections is defined exclusively by the Elections Clause of the federal constitution, the Fourth District inexplicably focused its analysis on our state constitution. Reviewing this Court’s recent decisions construing article III section 16 of the Florida Constitution, the district court curiously found it of great import that this Court approved of circuit court jurisdiction in v. Forman, 27 Fla. L. Weekly S733 (Fla. 2002), and determined to reach similar result here -- notwithstanding the fact that article III section 16 has no application to federal elections.

The Fourth District also ignored the federal nature of the powers being challenged under state law, basing its decision to allow the matter to go forward on little more than the conclusion that “[w]e find nothing in the Florida Constitution that expressly and clearly vests all claims in some court other than the circuit court.” Slip. Op. App. at 3. Again this harkened back to the article III section 16 power of review over apportionment of state legislative districts and the

4 This Court has discretionary jurisdiction to review any District Court decision that construes a provision in either the United States or Flroida Constitution. See art. V § 3(b)(3), Fla. Const. The decision below expressly construed and applied article III section 16 of the Constitution of Florida and the Equal Protection clauses of both the state and federal constitutions, thereby implicating the jurisdiction of this Court.

5 rule that such a case may also be brought in circuit court. But Congressional apportionment is solely a matter of federal law, namely the Elections Clause of the

United States Constitution, which does not make congressional elections subject to state constitutional restrictions, nor grant any general powers to state government. 5

The federal constitution delegates to the state legislature the power to regulate the “Times, Places and Manner of holding Elections for Senators and

Representatives.” art. I, § 4, cl. 1 (the “Elections Clause”). It is clear from this limited delegation, and the lack of any other textual content, that matters involving the election of congressional representatives is purely a federal issue.6 See Ex parte Yarborough, 110 U.S. 274, 278 (1884) (“It is not true, therefore, that electors for members of congress owe their right to vote to the state law, in any sense which makes the exercise of the right to depend exclusively on the law of the State.”; see also White v. Weiser, 412 U.S. 783, 794 (1973) (“[R]eapportionment is primarily a matter for legislative consideration and determination, [and] judicial relief becomes appropriate only when legislature fails to reapportion according to federal

5 The federal Congressional office arises from the United States Constitution (U.S. Const. art. I, §§ 1 & 2). States have only the authority that is delegated in the federal constitution, and no other powers over the area are “reserved” under the Tenth Amendment. Cook v. Gralike, 531 U.S. 510, 523 (2001); see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805 (1995). 6 The Supreme Court has strictly adhered to these principles in congressional election cases. For example, the Supreme Court has struck down state laws seeking to impose term limits on congressional candidates or otherwise govern their functions See U.S. Term Limits, 514 U.S. at 783; Cook, 531 U.S. at 526.

6 constitutional requisites in a timely fashion having the opportunity to do so.”)

(emphasis added); United States v. Classic, 313 U.S. 299, 315 (1941) (“While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, . . . this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of art. I.”)

This limited delegation to the legislatures of the several states provides:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. art. I, § 4, cl. 1 (the “Elections Clause”; emphasis added).

As in various other instances dealing with elections for a federal office, the

Framers chose to delegate a power specifically to the legislatures of each state, as opposed to simply delegating powers to states themselves. See, e.g., U.S. CONST. art. II, § 1, cl. 2; id. art. I, § 3, cl. 1. For example, article II, section 1, provides that presidential electors are chosen by each state “in such manner as the legislature thereof may direct.” (emphasis added). Passing on this language, the Supreme

Court of the United States confirmed that actions taken by the state legislature under such delegation are not subject to restrictions under state substantive law:

“This power is conferred upon the legislatures of the states by the constitution of

7 the United States, and cannot be taken from them or modified by their state constitutions. . .” See McPherson v. Blacker, 146 U.S. 1, 35 (1892).

The direct delegation to the state legislature therefore “operates as a limitation upon the state in respect of any attempt to circumscribe the legislative power. . . ,” and the exercise of that power is not subject to state constitutional restrictions.7 Id.; see also, Bush v. Gore, 531 U.S. __, 112-13 (2000) (Renquist

C.J., concurring).

The Supreme Court of the United States has reaffirmed at several turns that state law can have no impact on federal powers except to the extent of a federal delegation. Id.; U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783 (1985)

(Striking down state attempts to regulate qualifications for Congressional office);

Cook, 531 U.S. at 526 (striking down proposed state constitutional amendment aimed at requiring Congressional representatives to support certain legislation).

There is nothing in the Elections Clause to subject federal elections to restrictions imposed by a state constitution.

Yet, the Fourth District chose to sidestep the federal issue and instead allowed state claims against an inherently federal action to go forward in state

7 Another similar direct delegation is found in Article V of the Constitution of the United States, which delegates to the legislatures of the several states the power to ratify constitutional amendments. Consistent with McPherson, the Supreme Court has indicated that a state constitution cannot infringe upon the Article V power delegated directly to a state’s legislature. Hawke v. Smith, 253 U.S. 221 (1920); see also, Lesser v. Garnett, 258 U.S. 130 (1922).

8 court. This created an entirely new forum for such claims. Regardless of whether a state court would have jurisdiction over a federal claim in this area, the possibility of removal to federal court would always exist. But by extending the reach of the state constitution to federal offices the Fourth District construed the state constitution to create a new parallel state forum to attack federal reapportionment. Over a century of federal precedent requires a contrary result.

II. THE DECISION BELOW HAS FAR REACHING IMPLICATIONS ON FEDERAL REAPPORTIONMENT AND FUNDAMENTAL ISSUES OF COMITY THAT REQUIRE REVIEW BY THE STATE’S HIGHEST COURT.

The Court’s opinion would place state courts in the position of regulating the apportionment of federal offices. Inherent in the exercise of such judicial power is the need to redefine Congressional districts and perhaps even remove federal office holders from their positions. Clearly, this raises complex and troublesome issues of comity and federalism. The role carved out by the Fourth District be left where it properly belongs: in the federal courts.

And to be sure, the framers of the federal constitution never intended to allow state law to govern such federal matters. They delegated the power to regulate elections to the state legislature, and the state legislature alone. It is clear that such a delegation does not somehow make a federal power subject to a state constitution, nor subject it to the unfettered jurisdiction of state courts.

CONCLUSION

9 The Secretary submits that there are few matters of such critical importance as the extent of state court jurisdiction over the federal Congress and the extent to which state law can implicate federally delegated powers. This case raises complex and far reaching issues of federalism and comity that should, at the very least, be decided by a State’s highest court. The Court has clear jurisdiction under article V section 3(b)(3), and it should be exercised.

10 Respectfully submitted,

STEEL HECTOR & DAVIS LLP 200 South Biscayne Boulevard Miami, Florida 33131-2398 Ph: (305) 577-2855 Fax: (305) 577-7001

By:______JOSEPH P. KLOCK, JR. Florida Bar No. 156678 GABRIEL E. NIETO, P.A. Fla. Bar. 147559 JUAN CARLOS ANTORCHA Fla. Bar. 0523305

11 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this ____ day of October, 2003, to the persons in the attached Service List.

12 CERTIFICATE OF TYPE SIZE AND STYLE

The undersigned certifies that the type size and style used in this brief is

Times New Roman, 14-Point, proportionately spaced.

JUANCARLOSANTORCHA

13 SERVICE LIST

Honorable Charles J. Crist, Jr., Esq., Kathleen Von Hoene, Esq. Attorney General Deputy Attorney General Christopher M. Kise, Esq., Counsel for Defendants, State of Solicitor General Florida, and Charles J. Crist, Jr. Charles M. Fahlbusch, Esq. 110 Southeast 6th Street Assistant Attorney General 10th Floor Office of the Solicitor General Fort Lauderdale, FL 33301 The Capitol - PL-01 Ph: (954) 712-4670 Tallahasee, FL 32399 Fax: (954) 712-4700 Ph: (850) 414-3681 Fax: (850) 410-2672 L. Clayton Roberts, Esq. William R. Scherer, Esq. Counsel for Secretary of State Glenda Conrad & Scherer, LLP E. Hood Counsel for Senate President Jim King Florida Department of State Post Office Box 14723 PL-02, The Capitol Fort Lauderdale, FL 33302 Tallahassee, FL 32399-0250 Ph: (954) 462-5500 Ph: (850) 245-6517 Fax: (954) 463-9244 Fax: (850) 245-6125 James A. Scott, Esq. Thomas E. Scott, Esq. Edward J. Pozzuoli, Esq. Counsel for Senate President Jim King Alexis M. Yarbrough, Esq. Cole, Scott & Kissane, P.A. Counsel for Senate President Jim King 1390 Brickell Avenue, 3rd Floor Tripp Scott, P.A. Miami, FL 33131 110 S.E. 6th Street, 5th Floor Ph: (305) 350-5300 Fort Lauderdale, FL 33301 Fax: (305) 373-2294 Ph: (954) 525-7500 Fax: (954) 761-8471 J. Gerald Hebert, Esq. Paul M. Smith, Esq. Co-Counsel for Respondents Sam Hirsch, Esq. 5019 Waple Lane Katherine Fallow, Esq. Alexandria, VA 22304 Co-Counsel for Respondents Ph: (703) 567-5873 Jenner & Block Fax: (703) 567-5876 601 13th Street N.W. Washington, DC l20005 Ph: (202) 639-6000 Fax: (202) 639-6066 Steven G. Burton, Esq. Ephraim R. Hess, Esq.

14 Counsel for Amicus Curiae House Counsel for Respondents Speaker Johnnie Bryd Hess & O’Loughlin, P.A. Broad & Cassel P. O. Box 460505 100 N. Tampa Street Fort Lauderdale, FL 33346-0505 Suite 3500 Ph: (954) 467-5505 Tampa, FL 33602 Fax: (954) 252-4536 Ph: (813) 225-3020 Fax: (813) 204-2123

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