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SC12-1 Response to Motion to File Supplemental Appendix (House)

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SC12-1 Response to Motion to File Supplemental Appendix (House) Supreme Court of Florida IN RE: JOINT RESOLUTION OF LEGISLATIVE APPORTIONMENT Case No. SC12-1 __________________________________________________________________ THE FLORIDA HOUSE OF REPRESENTATIVES’ RESPONSE TO MOTION OF THE LEAGUE OF WOMEN VOTERS TO AMEND MAP __________________________________________________________________ Miguel De Grandy (FBN 332331) Charles T. Wells (FBN 086265) 800 Douglas Road, Suite 850 George N. Meros, Jr. (FBN 263321) Coral Gables, Florida 33134 Jason L. Unger (FBN 0991562) (305) 444-7737 Allen Winsor (FBN 016295) Facsimile (305) 443-2616 Charles B. Upton II (FBN 0037241) [email protected] GRAYROBINSON, P.A. Post Office Box 11189 Tallahassee, Florida 32302 George T. Levesque (FBN 555541) (850) 577-9090 General Counsel Facsimile (850) 577-3311 Florida House of Representatives [email protected] 422 The Capitol [email protected] Tallahassee, Florida 32399-1300 [email protected] (850) 488-0451 [email protected] [email protected] [email protected] Attorneys for the Florida House of Representatives THE FLORIDA HOUSE OF REPRESENTATIVES’ RESPONSE TO MOTION OF THE LEAGUE OF WOMEN VOTERS TO AMEND MAP At approximately 2:00 this afternoon, this Court’s clerk’s office called counsel for the Florida House of Representatives (the “House”) and directed the House to file a response by 4:30 this afternoon to the request of the League of Women Voters of Florida, the National Council of La Raza, and Common Cause Florida (together the “LOWV”) to file a new map. Approximately one hour later—ninety minutes before the filing deadline—the House first saw the Motion, when it appeared on the Court’s website. The House objects to the requested relief. First, the House has not had time to review the nine separate attachments to the Motion, and objects to the Motion on that basis. The only map the House has reviewed in detail is the one attached to the LOWV’s brief served last Friday—the one the LOWV trumpeted as superior to the House Map in SJR 1176, but which they now concede is unlawful and seek to abandon. On a preliminary review, though, it appears that the new map is wildly different from what they submitted earlier. They suggest that a new map was necessary to correct one district, (Br. at n.13) but substantially changed their entire map. And because they did not submit (at least not to the House) .doj files or other means allowing for thorough analysis, 1 we are left to analyze it based only on the printed maps and their reported data, which neither the House nor the Court has any means of testing. Thus, after the House has briefed the legality of its own map and explained several of the many deficiencies the LOWV map suffers, the LOWV wishes to simply substitute a brand new—and entirely different—map. That is fundamentally unfair to the House and other parties, and it would violate state and federal due process. Moreover, the only legal issue before this Court is the validity of SJR 1176. If it is valid, the judicial inquiry ends. This Court’s “job is not to select the best plan, but rather to decide whether the one adopted by the legislature is valid.” In re Constitutionality of Senate Joint Resolution 2G, Special Apportionment Session 1992, 597 So. 2d 276, 285 (Fla. 1992). To the extent there were any probative value of any other proposed map, it would be to demonstrate the viability of achieving certain objectives.1 For example, if the House Map divided fifty counties saying that it was not possible to divide substantially fewer, another proposal might show otherwise. (That is not to say that showing otherwise would invalidate the map.) 1 The House does not believe there is any such probative value, but the Court already entered an order allowing parties to submit proposed maps no later than seven days after the petition was filed, see Jan. 4, 2012 Order. 2 The LOWV, though, make no such assertion. (If they have in their nine attachments to their Motion, the House is unaware of it, having not yet reviewed them in detail.) The LOWV simply offer a map that they assert is better. If the Court finds fault with the House Map, its constitutional course is to invalidate the map, and return it for the Legislature to prepare a new one—not to adopt some map submitted by partisan interest groups. Moreover, there is no means of testing the LOWV map in this limited proceeding. While there is a vast legislative record before this Court relating to the House Map, there is no record at all regarding the old LOWV Map or the brand new LOWV Map. Among the many questions: • Who drew them? • What was his, her, or their objective? • Why did he, she, or they ignore the NAACP’s suggestion and reduce the number of majority-Black VAP districts in the Old LOWV Map from the benchmark? • Why did he, she, or they draw districts in the Old LOWV Map less compact than the House Map’s by numerous mathematical scores? • Why did he, she, or they split more counties in the Old LOWV Map than the House Map? • Why did he, she, or they tell the Legislature that “nesting” was essential and then submit to this Court a non-nested plan?2 2 Regarding the Legislature’s maps, the LOWV said that the Legislature’s not nesting “proves that it wanted to retain its ability to surreptitiously favor a party or 3 • Why did he, she, or they pack minorities in the Old LOWV Map into three 90%+ Hispanic seats next to non-Hispanic seats, thereby providing fewer majority-Hispanic VAP districts? • What are his, her, or their ties to incumbents? • What is his, her, or their relationship with political parties? • Who paid him, her, or them? • To whom has he, she, or they made political contributions? • When did he, she, or they actually draw the Old and New LOWV Maps? • Why is the New LOWV Map so different from the Old LOWV Map? • Why did he, she, or they refuse to show the Old LOWV Map to the Legislature until shortly before the final committee hearings? • Why did he, she, or they refuse to show the entirely different New LOWV Map to the Legislature until today? • Was this new map drawn by the Florida Democratic Party?3 incumbents.” LOWV App. at K-11. Now—after abandoning their “nested” map, they apparently believe differently. 3 The Florida Democratic Party has appeared in this case and did not submit a map to the Court. But not because it did not draw one: Its chair was quoted in the newspaper before Session saying: “Do we have maps? Yes. Several of them. Will I show them to anybody right now? No. It’s like any card game. I’ll show them when they’re ready to be played.” Mary Ellen Klas, Rod Smith predicts courts will decide district maps, legislature will create court record, TAMPA BAY TIMES, Sept. 28, 2011 (available at http://www.tampabay.com/blogs/the-buzz-florida-politics/content/rod-smith- predicts-courts-will-decide-district-maps-legislature-will-create-court-record). Perhaps now is his time. 4 None of these, of course, can be answered on this limited, facial review. But before accepting as authority any other map—or any expert affidavit regarding any map—the other parties in this case should have the same opportunities for discovery and testing that they would have in a trial court. That is unavailable here. Nothing about this Court’s structure has changed since 2002, when a majority of the Justices agreed that the Court had “not been afforded a structure to competently address claims that cannot be determined from the plan itself.” In re Constitutionality of House Joint Resolution 1987, 817 So. 2d 819, 836 (Fla. 2002) (Lewis, J., concurring in opinion joined by four of seven Justices) (emphasis added). Instead, the Court cannot resolve factual issues “prior to the proper fact- finding and adversarial testing required in any legitimate cause of action.” Id. (emphasis added). To preserve the legitimacy of this proceeding, the Court must deny the Motion. [Signature on following page.] 5 Respectfully submitted, /s/ Allen Winsor Miguel De Grandy (FBN 332331) Charles T. Wells (FBN 086265) 800 Douglas Road, Suite 850 George N. Meros, Jr. (FBN 263321) Coral Gables, Florida 33134 Jason L. Unger (FBN 0991562) (305) 444-7737 Allen Winsor (FBN 016295) Facsimile (305) 443-2616 Charles B. Upton II (FBN 0037241) [email protected] GRAYROBINSON, P.A. Post Office Box 11189 Tallahassee, Florida 32302 George T. Levesque (FBN 555541) (850) 577-9090 General Counsel Facsimile (850) 577-3311 Florida House of Representatives [email protected] 422 The Capitol [email protected] Tallahassee, Florida 32399-1300 [email protected] (850) 488-0451 [email protected] [email protected] [email protected] Attorneys for the Florida House of Representatives 6 CERTIFICATE OF SERVICE I certify that a copy of the foregoing was furnished by U.S. Mail and electronic mail on February 21, 2012, to all parties listed on the Court’s service list on its Internet website as of this morning. Those persons and the addresses to which the foregoing was furnished are listed on the attached Service List. /s/ Allen Winsor Allen Winsor 7 SERVICE LIST Timothy D. Osterhaus Andy Bardos Deputy Solicitor General Special Counsel to the President Office of the Attorney General The Florida Senate The Capitol, PL-01 404 South Monroe Street, Suite 409 Tallahassee, Florida 32399-1050 Tallahassee, Florida 32399 (850) 414-3681; Fax (850) 410-2672 (850) 487-5229 [email protected] [email protected] Michael A.
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