By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA
Florida Secretary of State Ken Detzner has asked a federal judge to toss out a lawsuit challenging the constitutionality of redistricting standards approved by voters in 2010, saying he doesn’t enforce the “Fair Districts” requirements.
Attorneys for Detzner filed a 16-page motion last week in federal court in Pensacola arguing that plaintiffs in the case were trying to use him as an “improper expedient” to get around legal obstacles in challenging the controversial standards. The document said the plaintiffs’ arguments stemmed from actions taken by the Florida Supreme Court, a Leon County circuit judge and the Legislature, not Detzner.
“By contrast, there is not a single allegation of any action taken by the secretary, let alone any action he might take to enforce the Fair District amendments being challenged,” the motion for dismissal said. “Curiously, wherever in the complaint that the plaintiffs identify harm that they have suffered because of the amendments, that harm purportedly flows from actions of the Florida Supreme Court, the state circuit court, or the Florida Legislature — never from an action or threatened action of the secretary.”
The Fair Districts standards, aimed at preventing gerrymandering, have led to long-running legal battles about congressional and state Senate districts initially drawn by the Legislature in 2012.
The Florida Supreme Court in July ruled that eight congressional districts violate the standards, leading to a special legislative session last month in which the House and Senate could not agree on a new map. Leon County Circuit Judge Terry Lewis finished hearing arguments Monday about a series of proposals and will recommend a new congressional map to the Supreme Court in October.
Meanwhile, lawmakers will hold another special session starting Oct. 19 to redraw Senate districts, after effectively conceding that the current Senate map likely would not survive a legal challenge.
The federal lawsuit against Detzner was filed Aug. 27 by plaintiffs including state Rep. Mike Hill, R-Pensacola Beach, Republican and Democratic activists and a group called the Conservative Coalition for Free Speech and Association.
The lawsuit, which is separate from the legal wrangling in state courts about the congressional and Senate maps, argues that the Fair Districts standards, as interpreted by the Florida Supreme Court, violate federal free-speech and due-process rights. It also argues that Detzner, the state’s chief elections officer, should be barred from carrying out redistricting plans drawn under the Fair Districts process.
A major issue in the congressional redistricting battle has been about whether Republican political operatives improperly played a behind-the-scenes role in the way districts were drawn in 2012. As fallout of that issue, legislative leaders have taken steps to curb — or at least make public — such activities.
The plaintiffs in the federal lawsuit argue, in part, that such steps have limited their First Amendment rights.
“The cumulative effect of the Florida Supreme Court’s interpretation and application of Florida’s redistricting amendments ensures that the amendments violate the First Amendment to the U.S. Constitution,” the lawsuit said. “This interpretation forces private citizens to run the gauntlet of vexatious litigation, and public censure and ridicule when choosing to engage in political speech or petitioning of their government. It serves as a prior restraint on speech for many. The Florida Legislature must, in turn, cast aside the federally protected shield of anonymity to which its citizens are entitled before it can listen to its constituents’ concerns regarding redistricting.”
But Detzner’s attorneys contend that the lawsuit seeks to circumvent a constitutional limit, known as sovereign immunity, on states being sued in federal court. The attorneys wrote that plaintiffs in the case are trying to use a narrow legal exception that allows constitutional challenges to officials’ enforcement of state laws.
The motion to dismiss said Detzner does not enforce the Fair Districts requirements.
“As chief elections officer, the secretary is responsible for the Florida Election Code,” the motion said. “But the secretary’s election duties (some of which are referenced in the complaint) have no relation at all to the Legislature’s redistricting responsibilities or to the standard of judicial review to be applied under the Fair District amendments to a challenge to those districts. The Fair District amendments — the only provisions that the plaintiffs purport to challenge — of course are not part of the Florida Election Code, and those amendments in no way establish a duty of enforcement by the secretary.”
