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CASE NO: 2012-CA-412
KEN DETZNER and PAM BONDI,
THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al, Plaintiffs, vs. KEN DETZNER, et al, Defendants. CASE NO: 2012-CA-490
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT This case is before me on motions for partial summary judgment filed by the Plaintiffs, seeking a determination that the joint legislative congressional redistricting plan is, on its face, in violation of the Florida State Constitution, specifically, Article III, section 20. The motions were filed and argued on an expedited basis - before even answers had been filed - to see if at least some of the claims could be resolved in summary fashion so as not to disrupt the schedules for the fall elections. Having considered the motions, the responses thereto, the record evidence before me, the authorities cited and the arguments of counsel, I conclude, for the reasons set forth below, that the motions should be denied.
ARTICLE III SECTION 20
In 2010, the voters of Florida passed two amendments to the Florida Constitution commonly referred to as the Fair Districts Amendments. These amendments are now codified in the Constitution as Article III Section 20, pertaining to congressional redistricting and Article III Section 21, pertaining to state legislative redistricting. These amendments significantly decrease the Legislature's discretion in drawing political district boundaries. Specifically forbidden is the drawing of a redistricting plan with the intent to favor or disfavor a political party or incumbent, commonly referred to as gerrymandering, Section 20 reads as follows: Standards for establishing congressional establishing congressional district boundaries: district boundaries.c-Jn
(a)No apportionment plan or individual district shall be drawn with the intent to favor 01' disfavor a political party or an incumbent; and districts shall not be drawn with the intent 01' result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives oftheir choice; and districts shall consist of contiguous territory. (b)Unless compliance with the standards in this subsection conflicts with the standards in subsection l(a) or with federal law, districts shall be as nearly equal in population as is practicable; districts shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries. (c)The order in which the standards within subsections 1(a) and (b) of this section are set forth shall not be read to establish any priority of one standard over the other within that subsection. Ali, III, § 20, Fla. Const.
STANDARD OF REVIEW
This is a case of first impression interpreting Article III Section 20, dealing with congressional re-districting, The Florida Supreme Court has,
however, recently interpreted the analogue provision in Article III Section 21, which applies to state legislative plans. See In Re: Senate Joint Resolution of Legislative Apportionment 1176. 37 Fla. L. Weekly S181 (Fla. 2012). This lengthy and comprehensive opinion interprets key terms and explains how the various criteria are to be analyzed in reviewing a re-districting plan for constitutionality. It therefore provides me with a detailed road map for reviewing the congressional plan challenged by Plaintiffs. There are some significant differences, however, between the nature of the proceedings before the Supreme Court and those before me, and I am in a different posture than that of the high court in reviewing the facial validity of the challenged plan. These differences flow from the fact that the source of legal authority for implementing and reviewing sate legislative redistricting plans is fundamentally different from that for congressional plans. The Legislature is required by our state constitution to redistrict the Florida House of Representatives and the Florida Senate two years after the onceper-decade census. Art. III, § 16(a), Fla. Canst. Notably, the Governor does not have a role in the constitutionally mandated reapportionment of the State Legislature. See In Re: Constitutionality of House Joint Resolution 1987, 817 So. 2d 819, 825 (Fla. 2002). The Florida Constitution also obligates the Florida Supreme Court to review the joint-legislative apportionment plan in an original proceeding, declaring it either valid or invalid. This decision must be rendered within 30 days of the filing of the mandated petition by the Attorney General. Art. III, § 16( c), Fla. Const.
This is an affirmative duty of review placed upon a court that is not traditionally structured for complex fact finding and resolution of disputed issues of fact, with a time limit that makes referral to a special master or commissioner for the taking of evidence and advisory findings impracticable. See In Re: Senate Joint Resolution of Legislative Apportionment 1176, at 8185 and concurring opinion at 8215-216. The COUlt is thus limited to a facial review based upon undisputed facts and objective data which, with the assistance of modern, sophisticated computer software can be quickly analyzed. More importantly perhaps, because it is an original proceeding before the Court, and given the nature of the affirmative obligation to perform an independent review of the legislation, the Court can, and did in its recent review, request that the Attorney General and interested patties provide the Court with certain data and other information. It initiated its own limited fact finding so that it could, irrespective of the position taken by the Attorney General or any other interested party, fulfill its obligation to the people of Florida to perform a meaningful review of the plans and determine if they met the new constitutional standards.Id. at 8184-185. In contrast, the requirement of congressional reapportionment
not from the
Florida Constitution but from the United States Constitution. Art. 1, § 2, U.S. Const. Following the census, the Census Bureau determines the number of representatives each state is entitled to receive, out of the 435 total members of the U.S. House of
I With congressional line drawing, there is a distinction between reapportionment and redistricting. Reapportionment refers to the process of dividing the total number of seats in the House of Representatives (435) between the 50 states. Redistricting is the process of allocating the seats the state receives into districts. This distinction is essentially meaningless when discussing the line drawing process for state legislative districts.
2 U.S.C § 2 (2012). Once the representatives have been reapportioned
among the fifty states, the State Legislature redistricts by dividing the state into the allotted number (in this case 27) of districts of equal population. See Wesberry v. Sanders, 376 U.S. 1 (1964) (holding that Article I Section 2 of the United States Constitution requires that congressional districts be drawn with as close to equal population as practicable). Unlike the reapportionment of the State Legislature, the congressional redistricting plan becomes law like any other bill; it must be passed by both houses of the Legislature and signed into law by the Governor. Importantly, there is no mandated automatic judicial review of this legislation. The authority and the process for challenging the constitutionality of the congressional redistricting plan is thus the same as for any other legislation, i.e, the filing of an action in Circuit Court. See Brown v. Butterworth, 831 So. 2d 683 (Fla.
DCA 2002) (holding that Circuit Court had
jurisdiction to heal' legal challenges to congressional redistricting plan). This COUlihas no specific duty under the Florida Constitution to review congressional redistricting. There is no specific time constraint on performing
such a review, either. Rather, this case is before me because Plaintiffs brought an action for declaratory judgment challenging the validity of the legislation. As a consequence, I must review it under the standards applicable to any other constitutional challenge to legislation. Specifically, the legislation is presumed to be constitutional and the burden is on the Plaintiffs to show beyond a reasonable doubt that it is not.
The Supreme Court recently specifically rejected the argument that those who challenge the state legislative plans must prove facial invalidity beyond a reasonable doubt, but never precisely articulated what lesser standard applied. It stated that the plans still come to the Court "with an initial presumption of validity .... and that the review of the plans would be done "with deference to the role of the Legislature in apportionment ... " but stated that its constitutionally required independent review brought with it a lesser degree of deference than would be appropriate with other legislation. In Re: Senate Joint Resolution of Legislative Apportionment 1176, at SI84-185. The dissenting opinion suggests that the Court applied a "strict scrutiny" standard in its review, but the majority opinion never specifically addresses this criticism. So, whether a challenger to a state legislative plan must show constitutional invalidity by the greater weight of the evidence or by clear and convincing evidence is not clear. The real question for our purposes, however, is whether the lesser burden and higher level of scrutiny the Court applied in review of the state legislative plans is applicable to the review of the congressional plan before me. The Plaintiffs argue that the Florida Supreme Court held that the beyond a reasonable doubt standard is not applicable when the legislation under review is an apportionment plan. I disagree. Rather, the Florida Supreme COUlttied its rejection of this beyond a reasonable doubt standard to the unique nature of its constitutionally mandated review. We conclude that the beyond a reasonable doubt standard is illsuited for an original proceeding before this C0U11in which we are
constitutionally obligated to enter a declaratory judgment on the validity of the legislative plans. Unlike a legislative act promulgated separate and apart from an express constitutional mandate, the Legislature adopts a joint resolution of legislative apportionment solely pursuant to the "instructions" of the citizens as expressed in specific requirements of the Florida Constitution governing this process.
Jd at S185.
This passage suggests that where, as here, the redistricting plan is established by a legislative act separate and apart from an express constitutional mandate, the beyond a reasonable doubt standard applies if the constitutionality of the act is challenged. There are also no special rules of procedure that allow me to by-pass what is required under the Florida Rules of Civil procedure. I have no authority to require of the parties that they present certain evidence for consideration. Specifically, the cases are before me on motions for summary judgment, which is controlled by Rule 1.510 Fla. R. Civ. P. In order to prevail on such a motion, the movant must show that there are no material facts in dispute and that based on the undisputed facts the party is entitled to judgment as a matter of law. Every reasonable inference is to be given the non-moving party, and the burden is even greater when a party seeks summary judgment before an answer is filed. He or she must anticipate and refute all possible defenses. There is no separate statement of facts in the motions before me. Rather, factual assertions are contained within the argument, and at times what is asserted as fact is conclusion, making it difficult to determine exactly what facts are really undisputed. It appears that there are very few material facts that are undisputed
and many that are. As outlined below in more detail, I simply cannot conclude on the limited record before me that the Plaintiffs are entitled to judgment in their favor as a matter of law. CHALLENGE TO PLAN AS A WHOLE Plaintiffs contend that the plan as a whole was drafted with the intent of aiding the Republican Party and protecting incumbents. This contention does not warrant summary judgment because the Legislature's motivation is a factual question over which there is genuine dispute. See Hunt v. Cromartie, 526 U.S. 541, 549 (1999). Furthermore, when interpreting Article III Section 21, the Florida Supreme Court rejected the argument which plaintiffs now bring, that the balance between the two-party share of statewide elections and the projected partisan balance of the congressional districts indicates unlawful intent. See In Re: Senate Joint Resolution of Legislative Apportionment 1176. 37 Fla. L. Weekly S181, S198 (Fla. 2012). There are simply too many other factors at play for me to find unlawful intent based merely on the projected partisan breakdown of the congressional plan. Id. The Plaintiffs argue that for the same reasons the Florida Supreme Court found that the Florida Senate redistricting plan contained sufficient indicators of intent to favor a political party and incumbents, I should find likewise as to the congressional plan. In rejecting the Senate plan, however, the Florida Supreme Court looked to the presence of a number offactors. For example, the Senate plan did not pit a single incumbent against another; The plan's new districts retained on average 64.2% of the predecessor districts; The renumbering scheme would allow incumbents to serve longer than they would otherwise
be able to under the term-limit law; The Republican leaning districts were disproportionately under-populated; The Senate used inappropriate and inconsistent geographical boundaries; The Senate failed to perform a functional analysis of voting patterns in order to properly justify a lack of compactness in favor of maintaining minority influence in specific districts. See In Re: Senate Joint Resolution
Apportionment 1176. 37 Fla. 1. Weekly at S202. Id.
By contrast, Plaintiffs point only to the fact that on average the districts represented by incumbents retain 73% of their predecessor district. This fact by itself, especially given that some incumbents successor districts contain less than half of their predecessor population is not sufficient for me to find the entire plan invalid as a matter of law. ' See Id. at S199. (stating that "[wjhile we recognize that the new districts on average retain 59.7% of the population of their predecessor districts, this fact standing alone does not demonstrate intent to favor incumbents).
CONGRESSIONAL DISTRICT 5 AND SURROUNDING DISTRICTS
District 5 Plaintiffs claim that District 5 was drawn with the intent to benefit the Republican Party, and to benefit the incumbent member of Congress Rep. Corrine Brown, that it is not compact, and does not follow traditional geographic boundaries. Furthermore, they argue that it cannot be justified by the tier-one requirement that the plan not diminish a minority group's ability to elect representatives of their choice. Congressional District 5 does not adhere to tier-two standards in Article III Section 20. See In Re: Senate Joint Resolution of Legislative Apportionment 1176, 37
Plaintiffs suggest in passing that some members will now live in the same district as other members. If this is accurate, it would further reinforce this Court's conclusion that it cannot conclude, at this point, that the plan is invalid as a matter of law.
Fla. L. Weekly at S192-S196 (outlining tier two standards). It is visually not compact, bizarrely shaped, and does not follow traditional political boundaries as it winds from Jacksonville to Orlando. However, to establish that the district as drawn is unconstitutional, Plaintiffs must also show that it is not reasonably justified by the need to maintain the ability of its minority population to elect the representative of their choice, and that it could have been drawn in compliance with tier-two requirements and still achieve compliance with tier-one requirements. See ld. at S197. The benchmark predecessor district has a black voting age population (VAP) of 49.9% (Romo exibit A). District 5 has a black VAP of 50.1% (Romo Exhibit B). The Romo plan's analogue to District 5 would have a black VAP of 37.7% (Romo Exhibit C), while the League of Women Voters (LOWV) analogue district would have a black VAP of34.7% (Defendant'S Substitute Exhibit B). Plaintiffs point to the Florida Supreme Court's invalidation of Senate District 6 to suggest that Congressional District 5 is likewise invalid. Id. at S206. The districts visually appear similar, and both were drawn to provide minority voters an opportunity to elect candidates of their choice. However, the facial similarities belie significant statistical differences. Senate District 6 as drawn, had a black VAP of 47.7%, with the benchmark being 46.9% black VAP. Id. The Court found that the Coalition's analogue district did not diminish the minority group's ability to elect a candidate of their choice, while better conforming to tier two standards, where the black V AP was 42.4% - 4.5% below the baseline. Id In the instant case, the Romo Plaintiffs analogue district would have a black YAP 12.2% below the baseline, and the LOWV analogue district would have a black YAP 15.2 % below the baseline.
Plaintiffs argue that the Legislature failed to conduct a proper functional analysis and that this dooms any claim by Defendants that the district was drawn to avoid retrogression. If the record established this fact, it would certainly be significant, as the Florida Supreme Court's recent opinion suggests that such a failure renders unpersuasive any claim by Defendants that tier-two standards were subjugated to comply with tier-one requirements. See In Re: Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly at S208 (finding no valid justification for divergence from tier-two criteria when Senate failed to perform functional analysis). This fact has not been established, however, on the record before me. Plaintiffs argue that all they need do is establish that a district is not compact or otherwise fails to meet tier two requirements, and the burden shifts to the Defendants to show by record evidence that such non-compliance was necessary to comply with tier-one requirements. I disagree. The burden is
the Plaintiffs to show that no such necessity exists.
Defendants claim that the House of Representatives did perform the correct functional analysis. The record before me suggests, at the least, that there is disputed material fact as to whether the House of Representatives conducted the proper functional analysis. Romo Plaintiffs Exhibit L, a House staff analysis of the ultimately adopted plan (9047), suggests that the House did consider minority district political data in developing the plan. Romo Exhibit G, which is a transcript of the House Redistricting Committee, also suggests that the House undertook a functional analysis using political data. The Plaintiffs claim that even if the House undertook the proper functional analysis, the Senate's failure to do so tainted the final product. I disagree. The undisputed record before me shows that the adopted plan came out of the House of
Representatives Redistricting Committee as plan 9047. This plan appears almost identical to the plan that became law. The affidavit By Daniel Smith suggests that plan 9047 "may very well have been based" on a plan that originated in the Senate (pg. 12). This is simply not enough for the Court to rule as a matter of law that the plan is fatally tainted by the Senate's failure to conduct a functional analysis, when it remains undisputed that the adopted plan came out of the House as plan 9047. Despite the significant drop in black YAP in their proposed districts, Plaintiffs supplied affidavits suggesting that they would not diminish black voters' ability to elect a candidate of their choice. Defendants countered by supplying affidavits concluding the opposite. Plaintiffs argue that in light of Senate Joint Resolution of Legislative
Apportionment 1176, this Court should look to nothing other than the exact data sets that
the Supreme Court analyzed in performing its functional analysis. I can not agree that I
to such evidence in this case.
Certainly, it would be appropriate to analyze the factors outlined by the Supreme Court, reviewing the following "statistical data: (1) voting age populations; (2) votingregistration data; (3) voting registration of actual voters; and (4) elections results history."
In Re: Senate Join! Resolution a/Legislative Apportionment 1176, 37 Fla. 1. Weekly at
S192. However, the Supreme COUlidid not change the Circuit Court's institutional competency as a fact finder, limiting it to a plug-and-chug analysis. Rather, it seems the Supreme Court looked to the statistical sets that it did based in large part on the limited time frame it had for review under the Florida Constitution The Defendant's affidavit, which analyzed election data and voting behavior in northeast Florida is sufficient to raise a disputed issue of fact as to whether it is possible
to design a more compact district in northeast Florida that would not diminish the ability of black voters to elect a candidate of choice. I cannot, at this stage, say that District 5 is unconstitutional as a matter of law. See ld. at 197.
LOWV Plaintiffs claim that Congressional District 7 is constitutionally invalid. They claim that because adjacent District 5 is infirm, District 7 is also unlawful. They also claim that District 7 unnecessarily crosses from Seminole County into Volusia County, violating the tier-two requirement that Districts follow existing political boundaries when possible. The current configuration of District 7 is necessarily tied to the configuration of District 5. The District 5 appendage that reaches into Seminole County must be offset elsewhere with precision, so that District 7 and every other district are of equal population. See Karcher v. Daggett, 462 U.S. 725, 730 (1983) (holding that any variance in population no matter how small must be justified to comply with U.S. Constitution). As I am unable to rule District 5 is invalid as a matter of law at this stage, I am likewise unable to rule that District 7 is invalid as a matter of law.
LOWV Plaintiffs claim that District lOis invalid. They claim that because adjacent District 5 is infirm, District 10 also unlawful. They also point to an oddly shaped appendage running between portions of District 5 and District 9. As discussed above, the configuration of District lOis necessarily tied to the configuration of District 5. Furthermore, the appendage Plaintiffs complain of runs
between District 5 and District 9, both minority opportunity districts. I cannot say as a matter of law, at this stage, that District lOis unconstitutional. Districts 3, 4, 6, 9, 11, 12, IS, and 17 Premised on the invalidity of District 5, LOWV Plaintiffs claim that all districts adjacent to it are likewise invalid. This claim fails at the summary judgment stage as I am denying sununary judgment as to District 5. CONGRESSIONAL DISTRICTS 13 & 14
Plaintiffs claim that Districts 13 and 14 are unconstitutional because they violate the tier-two standard, requiring that, where feasible, districts should utilize existing political and geographic boundaries. Plaintiffs point to District 14, which reaches across Tampa Bay to take in a portion of South
splitting the city of
and Pinellas County into two districts. Plaintiffs suggest that this configuration is not justified by any tier-one consideration, and is indicative of improper intent to benefit the Republican Party and incumbent Republican Congressman Bill Young. The benchmark predecessor to District 14 (District 11 in 2002) had a black voting age population of 26.8% and a hispanic voting age population of 25 .8% (Romo Exhibit A). As adopted, Congressional District 14 has a black YAP of25.6%3 and a hispanic YAP of25.6% (Romo Exhibit B). The Romo analogue District would have a black YAP of21.8% and a hispanic V AP of26.9% (Romo Exhibit C), while the LOWV analogue
The LOWV Plaintiff's, claim in their motion (pg. 33) that Congressional District 14 actually increased the black VAP from the baseline, to have a black VAP of26.6%. This assertion appears to be erroneous. Both Romo Exhibit B and Defendants Exhibit B show that, as adopted, District 14 has a black VAP of 25.6%. Because LOWV Plaintiffs did not provide the Court with a data set containing this information, and do not seem to dispute the information contained in the Romo Plaintiffs and Defendant's affidavits, the Court concludes that LOWV Plaintiffs assertion is merely a misstatement and does not constitute a factual dispute as to this data.
District would have a black YAP of21.2% and a hispanic YAP of25.8% (Defendants' Substitute Exhibit B). I find Plaintiffs assertion that District 13 and 14 violate tier-two unavailing, as their proposals to avoid splitting south St. Petersburg from the rest of Pinellas County would lead to county splits elsewhere in the region. In context, the decision to join south S1.Petersburg in a district with Tampa appears to be a valid policy choice, given the different options available. The adopted plan would split Hillsborough County into four districts, split Pinellas County into three districts and leave Pasco County whole. The LOWV proposal would split Hillsborough County into four districts, split Pinellas County into two districts, and Split Pasco County into three districts. This configuration would actually be less compliant with the tier-two requirement to utilize existing congressional boundaries. See In Re: Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L Weekly at S196. The Romo plan would achieve less county splits in the immediate Tampa bay area, splitting Hillsborough County into two districts, splitting Pinellas County into two districts, and leaving Pasco County whole. However, to achieve this configuration, the Romo plan's district 9 would unite northwestern Hillsborough County and Northern Pinellas County with eastern Hillsborough, connecting the two areas by a narrow strip of land running between their districts 5 and 1I. Moreover, these districts would be bounded on the northeast by Romo district 27, which is visually bizarre and not compact. District 27 winds through six counties, keeping only one of them whole.
I cannot determine on the record evidence that Districts 13 and 14 can be drawn in better compliance with tier-two requirements or that they violate tier-one requirements. On the undisputed facts before the Court, the Legislature'S plan appears to be a valid policy choice to avoid county splits in some places by necessarily having them in others; I cannot draw an inference of unlawful intent based on what Plaintiffs have offered. The COUlicannot say at this stage, that District 13 and District 14 are unconstitutional as a matter of law. CONGRESSIONAL DISTRICTS 20, 21, AND 22
LOWV Plaintiffs contend that Congressional Districts 20, 21, and 22 are unconstitutional. They claim that the districts needlessly violate tier-two requirements that districts be drawn compactly and follow existing political boundaries where possible. District 20 is a majority black district with a black YAP of 50.1 % (Defendant'S Exhibit B). The baseline district (2002 District 23) had a black YAP of 54.0%. The LOWV proposal would reduce the black VAP below majority, to 48.5% VAP (Defendant's Substitute Exhibit B). The LOWV plan better complies with tier-two requirements. It is faithful to the constitutional requirement that when possible the district should avoid county and municipality splits. See In Re: Senate Joint Resolution of Legislative Apportionment 1176, 37 Fla. L. Weekly at S205 (holding that the goal of creating a coastal district and an interior district did not justify otherwise unnecessary county splits). It is also marginally more compact. Nonetheless, the LOWV reduces the black VAP below 50%, while the adopted plan keeps the black YAP above that threshold, while lowering it marginally from the
baseline. Moreover, District 20 encompasses Hendry County, which is a Federal preclearance county under Section 5 of the Voting Rights Act. Plaintiffs have not shown that these districts can be drawn in better compliance with tier-two requirements, while not leading to retrogression in violation of tier-one," Accordingly, summary judgment is not appropriate.
CONGRESSIONAL DISTRICT 25
LOWV Plaintiffs contend that District 25 is unconstitutional. They argue that the district was drawn to benefit the incumbent Representative Mario Diaz- Balart. Plaintiffs argue that in last minute amendments, the Legislature sacrificed compactness to make the district more Republican, showing unlawful intent to benefit the incumbent. Plaintiffs have not met their burden of showing invalidity for summary judgment purposes. While Plaintiffs Appendix D-8 does show that a previous version of the district was marginally more compact, while marginally less Republican in the foul' race average, the differences are not large enough to show unlawful intent by themselves. This is especially true given that districts cannot be drawn in isolation, and any change to one district must be precisely offset somewhere else to ensure that all districts have equal population. See Karcher v. Daggett, 462 U.S. at 730.
CONGRESSIONAL DISTRICTS 22~23, 24, 26, AND 27
Plaintiffs contend that all the districts in south Florida were drawn to benefit the Republican Party. They claim that the Legislature sacrificed compactness to draw districts which pack Democrat voters into certain districts, while making others relatively Republican. They claim that their proposed map shows that the region can be divided
This is especially true given that Romo Plaintiffs proposed statewide map would leave its analogue of District 20 as a black-majority district with a black YAP of 51.4 %. Furthermore, they would configure their analogues of Districts 21 and 22 in a fashion almost identical to the plan adopted by the Legislature.
into districts that are more consistent with tier-two requirements while still adhering to the mandatory tier-one requirements. Plaintiffs' proposal shows that the region can be drawn in better compliance with tier-two standards. The LOWV proposal visually appears and scores more compactly. It also avoids creating districts which unnecessarily split counties to achieve separate coastal and interior districts. See In Re: Senate Joint Resolution of Legislative
Apportionment 1176,37 Fla. L. Weekly at S205.
However, Defendants presented affidavits suggesting that the LOWV proposed districts 21 and 18 would lead to retrogression of hispanics' ability to elect a candidate of their choice. This would be particularly troubling in Monroe County which is a covered jurisdiction under Section 5 of the Voting Rights Act. Plaintiffs point to the statistics of their proposed districts to argue that the claim of retrogression is meritless. Plaintiffs' proposed District 21 would have a hispanic YAP of 68.0% and their proposed District 18 would have a hispanic VAP of 66.8%. Nonetheless, "'Census data alone may not provide sufficient indicia of electoral behavior to make the requisite determination. Circumstances, such as differing rates of electoral participation within portions of the population, may impact on the ability of voters to elect candidates of choice, even if the overall demographic data show no significant change.'" Id. at S 191 (quoting Guidance Concerning Redistricting under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470, 7471). Defendants affidavit points to low hispanic participation in Democratic primaries and low vote cohesion, to suggest that the LWOV plan would likely result in the election of a white Democrat. Accordingly, I find material disputed fact over whether Plaintiffs
can demonstrate that a plan can be created in compliance with tier-one requirements and be more compliant with tier-two requirements. Without such a showing, I cannot say as a matter of law that districts 22, 23, 24, 26, and 27 are unconstitutionaL See Id. at S197.
PRELIMINARY INJUNCTIVE RELIEF
The Plaintiffs argue alternatively for a temporary injunction, maintaining the existing map until final resolution of their claims. To obtain injunctive relief the Plaintiffs must show: (1) likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) consideration of the public interest favors injunctive relief. See Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34, 38 (Fla. 1st DCA 2006). I understand and appreciate Plaintiffs' concern that if elections go forward under what is later determined to be an unconstitutional redistricting plan, Florida citizens will have been denied their right to have meaningful participation in the election of their representatives. I do not find, however, that they have established a right to an injunction. Without a finding that the map as drawn is unconstitutional, I do not have the authority to replace it with another map while the case is pending.
In were to grant the
request to bar use of the new map, the status quo would be a map drawn in 2002 that, as Plaintiffs point out, was admittedly drawn to favor the Republican Party and incumbents, Moreover, maps are redrawn every ten years. It is reasonable to presume that the population shifts in the last few years would lead to the imbalances that a new map is intended to address. And despite Plaintiffs' protests to the contrary, the new map appears on its face to be an improvement over the one it replaces. For these reasons, I decline to enjoin use of the challenged map while these cases are pending.
DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida, this 3~ay of April, 2012.
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