Terry Lewis, the Florida Circuit Court judge who last month issued a strongly-worded ruling voiding the state's congressional districts, on Friday ordered the legislature to redraw the state's Congressional districts by Aug. 15.
Recognizing the difficulties in turning around a redrawn map so quickly, Lewis nevertheless argues that the alternative, doing nothing, would be worse: "To do nothing, when you could, means that you lessen the ability of many citizens to elect the representative of their choice -- which is the effect of political gerrymandered districts. You must tell them that even though they have been deprived of the equal right of having a say in who represents their interests in Congress for two years, they must wait another two."
Lewis points to a precedent in the case law, Busbee v. Smith in 1982. In that case, the state of Georgia failed to draw two Ccongressional districts, violating the Voting Rights Act. A federal court ruled in that case that under these "exigent circumstances" the state's federal elections could be moved to give the state time to draw up compliant districts.
"In this case, as in Busbee, the State finds itself facing elections under an unlawful redistricting plan," Lewis writes. "It would seem that a finding of exigent circumstances in this case is consistent with the Busbee court's interpretation of sec. 7 and 8, justifying a later election date for selected districts."
Lewis notes that the Florida legislature has shown itself capable of quickly drawing up district maps in the past, and that it likely already has alternative maps that were considered by its members. The ruling orders new districts drawn up by noon Aug. 15, as well as a proposed schedule for special elections to fill those districts.
Practically speaking, the ruling has the potential to upend the Florida political landscape. Lewis's original ruling found two districts in violation of the state's Constitution and needing to be redrawn, due to partisan gerrymandering. But because congressional districts need to have equal populations, it can be difficult to redraw one or two without redrawing the majority of the state.
"The court is wrestling with a lot of bad choices," says Justin Levitt of the Loyola University Law School. "The current map is invalid, and trying to force through a new map by November creates a lot of chaos no matter how it's done. The court's order today is a last-ditch attempt to see if everyone can agree on a new, valid, November map ... but that agreement seems quite unlikely."
Levitt notes that courts have punted redistricting plans back to the states before, most recently in Kentucky last year. But he's not sure whether a state has been asked to turn around new plans so quickly.
According to Levitt, the most likely immediate outcome will be an appeal of Lewis's order. "That'd have the effect of further running out the clock on getting a new map before November," he says. He thinks it unlikely that "the legislature comes back with a valid remedial map and the election officials give it a thumbs-up."
Assuming that the legislature doesn't come back with a valid map, Levitt lays out the following four scenarios:
1. If there is no valid legislative map in time, it seems like Lewis really doesn't want to draw maps himself. It's possible that he'd do so (and his order gives him a bit of cover), but he's running out of time himself, and I don't think he's got a mechanism in place to do it right.
2. He could order the elections to go forward under the current (invalid) maps, just as an interim measure (which wouldn't be unprecedented).
3. He could order the elections to go forward for all districts other than 5 and 10, and hold those elections for a special election later, whenever the legislature does produce a valid map (his order gives him cover for that, as well).
4. Or -- truly longshot -- he could order the elections to go forward under the 2012 maps, with Florida's 2 new congressional seats distributed at-large. (2 USC 2a(c)(2) is the authority ... and I'm not aware that it's ever been done, but the statute seems fairly straightforward. The Supreme Court last addressed the statute in 2003, but mostly as an aside).
— Justin Levitt
Whatever the outcome, this ruling just made Florida's House races a whole lot more interesting.