Foxes and Henhouses

Everyone knows that foxes shouldn’t guard henhouses. Everyone, that is, except for the Florida Legislature. As the debate rages over the state’s next round of redistricting, the Legislature argues that it can be trusted to draw the new lines fairly. Even more brazenly, the Legislature insists that no one else — not even the people of Florida — can tell it how to go about its district-drawing business.

Some background: This past fall, Florida’s voters overwhelmingly approved two ballot initiatives aimed at stopping gerrymandering. Among other things, the measures bar politicians from trying to "favor or disfavor a political party or an incumbent" when they draw district lines. Not surprisingly, the Legislature hates the new rules. Its leaders tried all sorts of shenanigans to defeat the initiatives, and one of its chambers has now joined an audacious lawsuit claiming that the measures are somehow illegal.

The suit focuses on the Elections Clause of the Constitution, which states that "[t]he Times, Places and Manner of holding Elections . . . shall be prescribed in each State by the Legislature thereof." According to the Legislature, this language means that it, and only it, has the power to design Congressional districts. Any interference with its district-drawing authority — even a ballot measure endorsed by the people themselves — is unlawful.

This is a bad argument that, if accepted, would entrench gerrymanders across the country. Starting with the legal merits, the Supreme Court rejected a nearly identical challenge almost a hundred years ago. Back in 1915, Ohio’s general assembly passed a Congressional district plan that the public then voted down in a referendum. The assembly claimed that the referendum was invalid, because it limited the assembly’s power under the Elections Clause, but the Court unanimously disagreed. According to the Court, the provision merely authorizes the state political process as a whole to regulate elections. Since "the referendum constituted a part of the state Constitution," it could be used to nullify the assembly’s plan.

The same logic, of course, applies to the recent Florida initiatives. Ballot measures are explicitly sanctioned by the Florida Constitution, and they can therefore be used to create new rules for redistricting. The Elections Clause does not distinguish between traditional legislative action and policies enacted by other proper means.

Putting legal analysis aside, the awful practical consequences of the Legislature’s position are also worth noting. For one thing, if only state legislatures could draw district lines, then governors and courts would be barred from taking any part in redistricting. The separation of powers — under which governors can veto bills and courts can evaluate their validity — would be erased in the electoral arena.

Similarly, the redistricting commissions in use in thirteen states all would have to be scrapped. Commissions tend to produce fairer and more competitive district plans than state legislatures. But the assignment of significant influence to non-legislative bodies cannot be reconciled with the Legislature’s assertion of exclusive authority over elections.

Most insidiously, the Legislature’s position would make it impossible to improve redistricting via direct democracy. In most states, elected officials have little incentive to shake up the status quo, while courts are reluctant to get involved in political disputes. Measures placed directly on the ballot are thus the only way that the public can fight gerrymandering. But this crucial avenue for reform would be blocked if the Legislature has its way. The will of the people, as specifically expressed at the polls, would be just another unlawful infringement of the limitless legislative power.

The suit against the recent Florida initiatives, then, is deeply flawed as a matter of both law and policy. For this reason, it will likely fail, and the current round of redistricting will likely proceed under the new rules. But even if the suit is swiftly dismissed, it is still significant for what it says about the Legislature’s mindset. The Legislature seems so jealous of its prerogatives that it can’t abide their reduction even by the voters that elected it.

The whole point of the initiatives was to convey the public’s dislike of politics as usual in Tallahassee. Unfortunately, the Legislature seems not to have gotten the message.

An abridged version of this column recently appeared in the South Florida Sun-Sentinel.