IN THE SUPREME COURT FOR THE STATE OF FLORIDA ______________________________ ) IN RE: JOINT RESOLUTION ) OF LEGISLATIVE ) CASE NO. SC12-1 APPORTIONMENT ) ______________________________ ) RESPONSE OF THE LEAGUE OF WOMEN VOTERS OF FLORIDA, THE NATIONAL COUNCIL OF LA RAZA, AND COMMON CAUSE FLORIDA TO THE JOINT MOTION OF THE FLORIDA HOUSE OF REPRESENTATIVES, THE FLORIDA SENATE, AND THE ATTORNEY GENERAL TO STRIKE PORTIONS OF THE BRIEF AND APPENDIX Pursuant to this Court‟s order of February 22, 2012, the League of Women Voters of Florida, the National Council of La Raza, and Common Cause Florida (together “the Coalition”) herein respond to the joint motion of the Florida House of Representatives, the Florida Senate, and the Attorney General to strike the report of Dr. Allan J. Lichtman from the Coalition‟s Appendix (Tab M) and to strike the two references to that report from the Coalition‟s brief (Coalition Br. at 27 n.13, 43). In moving to strike, the Legislature and the Attorney General rely on past practice in this Court‟s apportionment reviews and act as though the enactment of Article III, Section 21 has not changed anything. See Mot. ¶ 3 (quoting past apportionment cases). Specifically, they urge that the type of review this Court must undertake to determine the validity of the apportionment plans is exactly the same as in past reviews. But this Court has already acknowledged that Article III, Section 21 would “change the standard of review to be applied when either the attorney general seeks a „declaratory judgment‟ with regard to the validity of a legislative apportionment, or a redistricting plan is challenged.” Advisory Opinion to Attorney General re Standards For Establishing Legislative District Boundaries, 2 So. 3d 175, 183 (Fla. 2009).1 To apply this new standard of review, the Court did not follow past practice. Instead – for what appears to be the first time in an apportionment review – the Court specifically called for the submission of alternative plans. In its January 25, 2012 order, this Court requested that parties who wished to submit alternative plans for the Court‟s consideration provide the Court with “the software used to create the plan, the data and criteria used in drafting each plan, the source of the data used in drafting the plan, and any other relevant information.” Order (Jan. 25, 2012) (emphasis added). The order also specifically stated that parties could “submit statistical reports related to each submitted plan.” Id. The Coalition thus offered the report of Dr. Lichtman pursuant to this Court‟s order. 1 The Court‟s order of February 21, 2012 likewise recognizes that past practice regarding the scope of review is of little relevance. As the Court stated with respect to Article III, Section 21‟s prohibition against favoring incumbents, “[i]n order for the Court to properly carry out its duties in evaluating this constitutional standard, it is necessary that the Court be provided with information concerning the residences of the legislature.” Order (Feb. 21, 2012). Plainly this is not information the Court would have considered in past apportionment reviews. 2 Dr. Lichtman‟s report is “relevant information” as to the Coalition‟s plan because it was offered to demonstrate to this Court that the districts drawn by the Coalition comply with Article III, Section 21‟s prohibition on diminishing the ability of minorities to elect candidates of choice.2 Dr. Lichtman did not opine on whether the districts drawn by the Legislature violate this standard. Instead, Dr. Lichtman‟s analysis simply demonstrates what the Coalition has maintained all along – that it is possible to decrease the minority population in minority districts without necessarily diminishing minority ability to elect. In contrast, the Legislature has contended that any decrease in the minority voting age population in any minority district would violate the amendments. See, e.g., Senate Cmte. on Reapportionment Hr‟g Tr. 175-76, 195-97 (Dec. 6, 2011); Senate Floor Debate Tr. 9-10 (Feb. 9, 2012). That is a flawed reading of the amendments in service of a partisan agenda. As African American Senator Arthenia Joyner stated, the Legislature has “use[d] the pretext of minority protection to advance an agenda that[] seeks to preserve incumbency and pack minority seats in order to benefit a particular party.” Senate Floor Debate Tr. 174. “In Florida, for the last 20 years, this sort of packing of African-American voters has been used to ensure the election of a disproportionate number of Republican 2 As noted in the Coalition‟s brief, Dr. Lichtman discovered an error with respect to House District 107. The Coalition has moved for leave to submit a new House plan that corrects this error. Dr. Lichtman‟s supplemental report accompanies that new House plan. The Coalition‟s motion is still pending with this Court. 3 candidates. Each of Florida's districts that have elected African-American representatives contains substantially more African-American population than is needed to allow African-Americans an opportunity to elect their preferred representatives.” Id. at 174-75. Senator Joyner pointed out that the Legislature had used the minority-protection provisions of the constitution to adopt “a standard of retrogression that requires the same level of packing as currently exists.” Id. at 175. Dr. Lichtman‟s report merely presents a statistical analysis of what Senator Joyner and the Coalition already know to be true – that packing minorities into a district is not necessary to elect a candidate of choice. Dr. Lichtman thus performed exactly the type of functional analysis of ability to elect and retrogression that is routinely called for in Voting Rights Act cases by the Department of Justice. See Coalition Br. at 25-26. In contrast, the Legislature conducted no analysis at all and simply asks this Court to take it at its word that the Legislature has maintained all ability to elect districts solely because it keeps all 4 minority voting age percentages at approximately the same levels.3 The reality is that the Legislature used minority-protection as a pretext for a partisan agenda. But Dr. Lichtman‟s report does not say anything at all about the Legislature‟s flawed interpretation of Article III, Section 21. Thus, any due process concerns the Attorney General or Legislature may have about an inability to respond to evidence of invalidity offered against the Legislature‟s plans are entirely misplaced. Dr. Lichtman‟s report is in support of the Coalition‟s plans, not in opposition to the Legislature‟s. It is submitted pursuant to this Court‟s order of January 25, 2012,4 and the Coalition believes that it will materially assist this Court in its review. 3 The Legislature‟s definition of an ability-to-elect district is unclear. For example, in the Senate‟s appendix at A-3, it includes an African American ability-to-elect district that was 33.1% African American in the benchmark map and is 40.0% African American in the Legislature‟s enacted map. The Legislature offered no analysis showing that this is an ability-to-elect district. Similarly, at A-4, the Legislature includes a district in which the benchmark district was 39.5% African American and the Legislature‟s newly created district is 37.2% African American. Again, there is no analysis showing that this is an ability-to-elect district. And finally, at A-7, the Senate characterizes as an African American district one in which the Hispanic voting age population is higher than the African American voting age population in both the benchmark and the newly created plans. 4 The joint motion repeatedly refers to the “record” in this proceeding and references Florida Rule of Appellate Procedure 9.220 to contend that the report of Dr. Lichtman is not part of the “record.” See Mot. at 3 n.1, 4. But in this original proceeding, there is no appellate “record.” The Court has specifically requested materials such as maps, reports, and incumbent addresses that are not part of any official “record.” The Legislature‟s arguments about the “record” are therefore irrelevant. 5 WHEREFORE, the Coalition respectfully requests that this Court deny the Joint Motion to Strike the Report of Dr. Allan J. Lichtman and the references to the report in the Coalition‟s brief. Respectfully submitted this 22nd day of February, 2012, /s/ Ronald G. Meyer [email protected] Florida Bar No. 0148248 MEYER, BROOKS, DEMMA AND BLOHM P.A. 131 North Gadsden Street (32301) Post Office Box 1547 Tallahassee, Florida 32302 Telephone: (850) 878-5212 Facsimile: (850) 656-6750 Local Counsel Paul M. Smith* [email protected] Michael B. DeSanctis* [email protected] Jessica Ring Amunson * [email protected] Kristen M. Rogers * [email protected] *Pro Hac Vice JENNER & BLOCK, LLP 1099 New York Ave NW, Suite 900 Washington, DC 20001 Telephone: (202) 639-6000 Facsimile: (202) 639-6066 6 J. Gerald Hebert* [email protected] *Pro Hac Vice 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 this Notice was furnished by United States Mail and email to the following parties on this 22nd day of February, 2012. These are all parties appearing on the most recently revised service list at the time of service. Timothy D. Osterhaus Deputy Solicitor General OFFICE OF THE ATTORNEY GENERAL PL-01, The Capitol Tallahassee, Florida 32399-0400 Telephone: (850) 414-3681 Facsimile: (850) 410-2672 [email protected] Attorney 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 Telephone: (202) 879-7643 Tallahassee, Florida 32399 [email protected] Telephone: (850) 487-5229 [email protected] 7 Cynthia Skelton Tunnicliff Peter M.