League of Women Voters of Florida v. Detzner (179 So. 3d 258, 2015)

PARIENTE, J.

This case is before the Court for approval of a final congressional redistricting plan in accordance with the Fair Districts Amendment and in accordance with our previous opinion in League of Women Voters of Florida v. Detzner (Apportionment VII), 172 So.3d 363 (Fla.2015). We approve in full the trial court’s “Order Recommending Adoption of Remedial Map.” Our opinion today — -the eighth concerning legislative or congressional apportionment during this decade since the adoption of the landmark Fair Districts Amendment-should bring much needed finality to litigation concerning this state’s congressional redistricting that has now spanned nearly four years in state courts. . Accordingly, the plan approved here shall be used in the 2016 congressional elections and thereafter until the next decennial redistricting.

In Apportionment VII, we affirmed the trial court’s finding that the 2012 “redistricting process” and the “resulting map” apportioning Florida’s twenty-seven congressional districts were “ ‘taint[ed]’ by unconstitutional intent to favor the Republican Party and incumbent lawmakers.” Id. at 369. Although we affirmed the trial court’s finding of unconstitutional intent, we reversed the trial court’s final judgment because it had not given proper legal effect to its finding of unconstitutional intent. As the trial court noted upon relinquishment, it “had not gone far enough in [its] requirements of the Legislature to correct the 'constitutional deficiencies.” Romo v. Detzner (Trial Court Order), Nos. 2012-CA-00412 & 2012-CA-00490, Order Recommending Adoption of Remedial Map at 2 (Fla.2d Jud.Cir.Ct. Oct. 9, 2016).

In Apportionment VII, we rejected the Challengers’ request that .the entire map be redrawn because “the remedy [should be] commensurate with the constitutional violations” and because the Challengers did not “identify a neutral map that showed how all of the districts could be redrawn in a manner more objectively compliant with the constitutional requirements.” Id. at 413. We did acknowledge that the “admittedly gerrymandered 2002 map ... was used as a baseline” for the enacted plan, but the,Challengers did not allege that fact as a “basis for invalidating the entire map.” Id.

We also rejected the Challengers’ request that this Court redraw the map, although we concluded that this Court had that authority once constitutional violations had been demonstrated. Id. Instead, we provided the Legislature with the opportunity to pass a constitutionally compliant plan. Accordingly, we relinquished jurisdiction to the trial court for a period of 100 days and directed the Legislature to redraw “Districts 6,13, 14, 21, 22, 25, 26, 27, and all other districts affected by the redrawing.” Id. at 371-72.

We did not anticipate, however, that the Legislature would be unable to agree on a final remedial redistricting plan. Although each legislative chamber passed a plan, the Legislature, deadlocked, failing to enact a remedial plan in a special session held for that purpose. Accordingly, this Court provided additional directions to the trial court based on a motion “for fui’ther relinquishment of jurisdiction” filed by the Florida House of Representatives.

In its detailed Trial Court Order, the trial court approved the House’s proposed configuration of Districts 1 through 19— recommending the House’s proposed plan over the Senate’s' where there was disagreement between the two chambers— but concluded that the Legislature had not met its burden of defending its proposed configurations for Districts 20 through 27. The trial court further recommended that the district configurations set forth in an alternative plan submitted by the Coalition Plaintiffs were more compliant, with the tier-two constitutional requirements that “districts shall be compact” and “where feasible, utilize existing political and geographic boundaries.” Art. III, § 20, Fla. Const. Consequently, the trial court concluded that the,Legislature had.not justified its decision to adopt a less tier-two compliant plan with respect to the eight challenged South Florida districts..

Having considered the trial court’s order and the parties’' supplemental briefs, having considered the entire record of both the three-day evidentiary hearing and the special session, having considered the remedial plans submitted by the parties, and having heard oral argument, we approve in full the trial' court’s recommendations regarding the remedial congressional redistricting plan.' ■ • -

In so doing, we reject thé Legislature’s contention, echoed by Justice Canady, that our decision today moves the “goalposts” on the Legislature in its redrawing of the districts." Concurring in part and dissenting in part op. of Canady, J., at 302-03. The goal has not changed and has always been compliance with the Fair Districts Amendment. At this stage, after a finding that' the 2012 congressional redistrieting plan had been drawn with improper intent, the Legislature bears the burden of justifying its redrawn configurations. The Legislature did not escape this burden when it was unable to agree on a plan to enact and subsequently asked all parties to submit' alternative plans to the trial court. The trial court’s orderi agreed to by the parties, required that each party submitting an alternative' plan “identify every person involved' in drawing, reviewing, directing or approving the proposed'remedial plan.” All parties, then, had a full opportunity to review and comment upon the various proposed plans submitted to the trial court, thereby providing a full and fair public airing of the contending arguments relating to the constitutionality of each plan.

We additionally dismiss the contention that the trial court and this Court have adopted a plan drawn by “Democratic operatives.” Dissenting op. of Polston, J., at 305. As this opinion makes clear, the only subject of current dispute between the Legislature and the Challengers are eight South Florida districts, including two redrawn districts in which Democratic incumbents were actually paired against each other in the same district. From the outset, we have encouraged the public to submit proposed plans that can be evaluated by the objective criteria of the Fair Districts Amendment. What we were faced 'With in the factual record in Apportionment VII was not that Republican political operatives publicly submitted plans but that Republican political operatives successfully infiltrated the redistricting process with the coordination and cooperation of the Legislature, resulting in a redistricting plan that was tainted with improper partisan intent.

After our determination in Apportionment VII that the Legislature’s plan had been drawn with improper intent, we “shifted the burden to the. Legislature to justify its decisions in drawing the congressional district lines.” Apportionment VII, 172 So.3d at 396-97. In examining the Challengers’ plan, we review for compliance with the objective constitutional standards we have promulgated throughout our redistricting decisions. Therefore, we reject the assertion in Justice Polston’s dissent that this Court is violating separation of powers by affirming the trial court and approving the plan that most faithfully follows the objective criteria set forth in the Fair Districts Amendment. See dissenting op. of Polston, J., at 305-06. All plans were evaluated by the same objective criteria. As the trial court found, the map submitted- by the Coalition Plaintiffs — not the Democratic Party, or the Senate, or the House — was “hands down the best tier two performing map of the group” and was “more compact and splits fewer cities than any of the others.” Trial Court Order at 12.

' In approving the trial court’s recommendation, we are acutely aware that this ease represents the first time that congressional districts have been challenged under the Fair Districts Amendment. As we have stated before, “thé trial court had scant precedent to guide it,” Apportionment VII, 172 So.3d at 370; neither did the Legislature nor the Challengers. We again commend the trial court for its diligence and all parties for their professionalism.

We emphasize that although the Challengers and the Legislature disagree as to some of the redrawn districts, the disagreement is limited to only eight districts in South Florida (Districts 20 through 27). All parties agree as to three districts that were not redrawn in any proposed plan (Districts 1, 8, and 19), as well as to ten redrawn districts (Districts 5, 13, and 14, which were invalidated in Apportionment VII, and additionally Districts 2, 3, 4, 6, 7, 12, and 18 that were affected by the redrawing of the districts). The configuration of the remaining six districts — 9, 10, 11, 15, 16, and 17 — is the subject of the dispute between the House and the Senate, when the chambers could hot agree to the passage of a final plan.

This Court has an “obligation to provide certainty to candidates and voters regarding the legality of the state’s congressional districts.” 172 So.3d at 372. And as Chief Justice Labarga recently made clear, an “orderly and foreseeable constitutional end point must be reached in this process. Anything less makes a mockery of-the will of the voters who passed the Fair Districts Amendment.” League of Women Voters of Fla. v. Detzner, No. SC14-1905, Order at 6 (Fla. Sup.Ct. order filed Sept. 4, 2015) (Labarga,: C.J., concurring) (the “Second Relinquishment Order”). .. We reiterate that “this case does not pit this Court versus the Legislature, but instead implicates this Court’s responsibility to vindicate ‘the essential right of our citizens to have a fair opportunity to select those who will represent them.’” Id. at 414 (citing League of Women Voters of Fla. v. Fla. House of Representatives (Apportionment IV), 132 So.3d 135, 148 (Fla.2013)).

Accordingly, we affirm the Trial Court Order recommending a remedial plan, and the congressional redistricting plan approved by this Court shall be utilized in the 2016 Florida congressional elections and in Florida congressional elections thereafter until-the next decennial redistricting. The trial court shall enter a final judgment incorporating the.approved plan.

PRIOR PROCEDURAL POSTURE:

APPORTIONMENT VII

This Court’s decision approving the Trial Court Order in all respects does not come to us in a vacuum. Far from it. The Fair Districts Amendment set forth what we have referred to as tier-one and tier-two standards. The tier-one standards mandate three requirements: (1) no apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent; (2) districts shall not be drawn with the intent or 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 of their choice; and (3) districts shall consist of contiguous territory. Art. Ill, § 20(a). We previously explained the tier-one standards:

The Florida Constitution prohibits drawing a plan or district with the intent to favor or disfavor a political party or incumbent; there is no aceeptablé level of improper intent. By its express terms, Florida’s constitutional provision prohibits intent, not effect, and applies to both the apportionment plan as a whole and to each district individually. The minority voting protection provision 'imposes two requirements that plainly serve to protect racial and language minority voters in Florida: prevention of impermissible vote dilution and prevention of impermissible diminishment of a minority group’s ability to elect a candidate of its choice. Finally, districts must be contiguous.

In re Senate Joint Resolution of Legislative Apportionment 1176 (Apportionment I), 83 So.3d 597, 684-85 (Fla.2012).

The tier-two standards circumscribe how districts can be drawn so as to guard against gerrymandering and thus require: (1) districts shall be as nearly equal in population as is practicable; (2) districts shall be compact; and (3) districts shall utilize existing political and geographical boundaries where feasible. Article III, § 20(a). We have described the tier-two requirements as follows:

The Legislature is required to make districts as nearly of equal population as is practicable, but deviations from equal population may be based on compliance with other constitutional standards. Compactness refers to the shape of the district; the goal is to ensure that districts are logically drawn and that bizarrely shaped districts are avoided. Compactness can be evaluated both visually and by employing standard mathematical measurements. As to utilizing political and geographical boundaries, we accept the House’s view of geographical boundaries as those that are easily ascertainable and commonly understood, such as, “rivers, railways, interstates, and state, roads.” Strict adherence to these-standards must yield if there, is a conflict between compliance with them and the tier-one standards. Importantly, .the extent to which, the Legislature complies with, the, requirements contained in tier two serves as an objective' indicator of impermissible, legislative purpose proscribed under tier one (e,g., intent to favor or disfavor a political party or an incumbent).

Apportionment-1, 83 So.3d at 685.

In-Apportionment VII, which dealt specifically with the 2012 congressional plan under Article' III, section 20(a), and the litigation arising from the' legislatively adopted plan, we‘‘affirmed thé'trial court’s finding that the Legislature’s enacted map was “taint[ed] by unconstitutional intent.” 172 So.3d at 371. The facts and history of the underlying litigation are fully set'forth in that opinion, upholding the trial court’s ruling that the congressional redistricting plan enacted by the Florida Legislature in 2012 was constitutionally invalid, in violation of the “Fair Districts” standards set forth in article III, section 20, of the Florida -Constitution. • Id; at 393. But we held, nevertheless, that the trial court committed “two. legal errors, which, significantly affected its determination of , the proper effect of its finding that the Legislature violated the Florida Constitution.” Id. The first legal error was that the trial court did not give effect to its finding of improper intent in • analyzing the challenges to the individual districts. -Id, at 393t96. The second legal error was that once the. trial court found the Legislature intended to, favor a political party or incumbent in the drawing of the plan, the trial court should have shifted the burden to- the Legislature to justify its redistricting plan, Id, at 806-97.

In other words, as the trial court recently noted about our decision:

On July 0, 2015, the Florida Supreme Court issued its1 opinion in' {Apportionment VII ], affirming my finding of constitutional violation but determining that I had not gone far enough in my requirements of the Legislature to correct the constitutional deficiencies. The Court directed the Legislature to draw a third map and gave specific instructions as to how to address problems it noted with certain districts (5, 13, 14, 21, 22, 25,26 and 27.)

Trial Court Order at 2.

During the relinquishment proceedings, this Court considered the issue of the Legislature’s burden to be 'important. After the trial court ¡'concluded that there was unconstitutional intent and a “violation of the Florida Constitution’s prohibition on partisan intent ... the burden should have shifted to the Legislature to justify its decisions in drawing the congressional district lines.” Apportionment VII, 172 So.3d at 370-71. As we stated:

Once a tier-oné violation of the constitutional intent standard is found, there is no basis to continue to afford deference to the . Legislature. To do so is to offer a presumption of constitutionality to decisions .that have been found to have been influenced by unconstitutional considerations. The .existence of unconstitutional partisan intent is contrary to the very purpose of the Fair Districts Amendment and to this Court’s pronouncements regarding the state constitutional prohibition on partisan .political gerrymandering. .

Accordingly, after reaching the conclusion that the '“redistricting process” and the “resulting- map” had been “taint[ed]” ,by unconstitutional intent, the burden should have, shifted to the Legislature to justify its decisions,, and no deference should have been afforded to the Legislature’s decisions regarding the drawing of the districts. In other contexts, states have placed the burden on their legislatures to justify the validity of a redistricting plan when the plan, has “raised sufficient issues" with respect to state constitutional requirements. In re Legislative Districting of State, 370 Md. 312, 805 A.2d 292, 325 (2002).

Because there wee many ways in which to draw a district■ that complies, with, for example, the constitutional requirement of compactness, which party bears the burden of establishing why a decision was made to accept or reject a particular configwatAon can ultimately be determinative.

Id, at 400 (emphasis supplied).

Applying the correct standard of review that placed the burden on the Legislature to justify its decisions based on the trial court’s finding of unconstitutional intent, we analyzed the constitutional deficiencies of eight, specifically challenged districts. We ultimately relinquished jurisdiction to the trial court and mandated that the Legislature redraw “Congressional Districts 5, 13, 14, 21, 22, 25, 26, 27, and all other districts affected by the redrawing.” Id, at 371-72. In so doing, we provided “clear guidance as to the-specific deficiencies in the districts that the Legislature must redraw,” and we gave the Legislature 100 days from the date of our July 9, 2015, opinion to enact a remedial congressional redistrieting plan and to submit that, plan to the trial court for approval. Id, at 416-17.

We further stressed that “transparency is critical in light of both the purpose of the Fair Districts Amendment to outlaw partisan manipulation in the redistricting process and the trial court’s finding here that ‘an entirely different, separate process’ to. favor. Republicans and incumbents was-undertaken contrary to the Legislature’s assertedly transparent redistricting, effort.’ ” Id. at:414-15. Thus, we set forth four specific guidelines that we urged the Legislature, to .follow: (1) “conduct all meetings in which it [made] decisions on the new map in. public and to record any non-public meetings”; (2) "provide a mechanism for challengers and others to submit alternative maps” and to permit debate on the merits of the proposed alternative maps; (3) “preserve, all e-mails and documents, .related to the redrawing of the map”; and (4) “to publicly document the justifications for. its chosen configuration.” Id.

PROCEDURAL POSTURE: AFTER RELINQUISHMENT

After this Court issued its opinion, the President of the Florida Senate and the Speaker of the Florida House of Representatives issued a joint proclamation on July 20, 2015, convening a special session for the purpose of enacting a remedial congressional redistricting plan. That.same day, the Senate President and the House Speaker issued a joint memorandum to members of the Legislature, explaining procedures for the special session. .

The memorandum directed ■ legislative' staff to work with House and Senate legal counsel to develop a “Base Plan” that complied with this Court’s opinion. The legislative leaders determined that the Base Plan would be “drafted solely by staff in collaboration with counsel, without [the leaders’] participation or the-participation of any other member.” However, contrary to the Court’s suggested guidelines that “all meetings in which it makes decisions on the new map” should be held “in public” or otherwise recorded for preservation, none of the meetings during which staff developed the Base Plan in collaboration with counsel — as well as outside counsel— were recorded or transcribed. The memorandum did direct, in accordance with this Court’s recommended guidelines in Apportionment VII, that legislators retain and compile all communications related to redistricting.

Pursuant to the instructions set forth by legislative leadership, legislative staff then developed a Base Plan, in consultation with counsel for the House and Senate. This Base Plan was released publicly on August 5, 2015. In addition to redrawing the eight districts specifically invalidated by this Court — Districts 5, 13, 14, 21, 22, 25, 26, and 27 — legislative staff made changes to fourteen other districts that were affected thereby — Districts 2, 3, 4, 6, 7, 9,10,11, 12,15,16,17, 20, and 23.

The Legislature met in special session from August 10, 2015, to August 21, 2015. The House and Senate considered amendments to the Base Plan, and each chamber ultimately passed its own amended plan. As to proposed Districts 26 and 27, the League of Women Voters of Florida and Common Cause sent a letter to the Speaker of the House and President of the Senate criticizing the configuration of those districts as not having been drawn in a constitutionally compliant manner. Senator Dwight Bullard proposed an amendment that configured those same two districts in a more tier-two compliant manner.

The plan last passed by the House (H110C9071, the “House Plan”) differs from the Base Plan in Districts 9, 11, 15, 17,18, 20, 21, 22, and 23, as a result of the House’s stated purpose' of keeping additional cities whole. The plan last passed by the Senate (S026C9062, the “Senate Plan”) differs from the Base Plan in Districts 9, 10, 11, 15, 16, 17, 18, 20, 21, 22, and 23, as a result of the Senate’s stated purpose of reducing the number of times Hillsborough County was split and keeping both Sarasota County and certain cities whole. The House and Senate Plans themselves differ only in six central and southwest Florida districts (Districts 9,10, 11, 15, 16, and 17). Because the Legislature was unable to agree on and enact a single plan during the special session, the “Florida Legislature adjourned its special redistricting session sine die on August 21, 2015, without having enacted a remedial congressional redistricting plan as required by the Court’s July 9, 2015, opinion.” Second Relinquishment Order at 1.

After the Legislature failed to enact a remedial congressional plan, the House filed a “Motion For Further Relinquishment of Jurisdiction,” specifically requesting that this Court “initiate proceedings toward the judicial adoption” of a remedial redistricting plan and allow all parties to submit proposed remedial congressional plans to the trial court for its review. This Court granted the motion, in part, and directed the trial court to make a recommendation to this- Court as to “which map proposed by the- parties — or which portions of each map — best fulfills the specific directions in [this] Court’s July 9, 2015, opinion and all constitutional requirements.” See Second Relinquishment Order at 2-3.

In the Second Relinquishment Order, we reemphasized that the “burden remains on the House and Senate to justify their chosen configurations.” Id. at 2. We also explicitly rejected the proposition advanced by the House that any plan recommended by the trial court and ultimately approved by this Court would be “interim” or “provisional.” Id. at 4. Doing so would make “a mockery of the will of the voters who passed • the Fair Districts amendment.” Id. at 6 (Labarga, C.J., concurring).

THE TRIAL COURT PROCEEDINGS

After this Court issued the Second Relinquishment Order, the parties submitted an agreed scheduling order to the trial court, which the trial court entered:

On or before Monday, September 14, 2015, each party that intends to present a proposed remedial plan at the eviden-tiary hearing shall serve the proposed remedial plan in- .doj format. The disclosing party shall identify every person involved in drawing, reviewing, directing, or approving the proposed remedial plan. The Court will not consider any proposed remedial plan that is not timely disclosed in compliance'with all provisions of-this Order.

(Emphasis supplied.)

Pursuant to that order, the parties submitted a total of seven proposed plans to the trial court. The House-submitted the House Plan, the last plan passed by that chamber during the unsuccessful special session. The Senate submitted the Senate Plan, the last-plan passed by that chamber during the special session, as well as a-plan drawn after the special session by legislative staff at the direction of the Reapportionment Committee Chair, Senator William Galvano (the “Galvano Plan”). The Galvano Plan differs from the House. Plan in four districts (Districts 9,15,16, and 17) and from the Senate plan in six districts (Districts 9,10,11,15,16, and 17).

The “Romo Plaintiffs” submitted one plan (the “Romo Plan”), which adopted the House’s configuration for twenty-two districts but proposed new configurations for Districts 21, 22, 25* 26, and 27. The Romo Plaintiffs’ proposed configuration for Districts 21 and 22 retained a vertical configuration, unlike the Coalition Plaintiffs' plans and the Legislature’s plans, which included a stacked -configuration - that paired two Democratic incumbents against each other in District 21.

The Coalition Plaintiffs submitted threé plans — “CP-1,” “CP-2,” and “CP-3.” CP-1 adopted the House’s configuration for nineteen districts and proposed new configurations for Districts 20 through 27- in South Florida. CP-2 and CP-3 both adopt the House’s configuration for twenty-five districts and each contains an alternative configuration for Districts 26 and 27. The differences between CP-2 and CP-3 are minor, as each 'variation moves all of Homestead into District 26 and equalizes population in ways that do not move predominately black communities out of District 26 by using, different .major roadways as district boundary lines. •

During the trial court’s three-day evi-dentiary hearing,- testimony'was received from those persons involved in “drawing; reviewing, directing, or approving” the proposed remedial' plans. John O’Neill, the Coalition Plaintiffs’ map drawer, testified about how he- drew the Coalition Plaintiffs’ maps. -Harvard University Professor Stephen -Ansolabehere, the Romo Plaintiffs’ map drawer, also testified at the remedial hearing about how he drew the Romo map. In .lieu of live testimony, the trial court also admitted the report of the Coalition Plaintiffs’ expert, Dr. Allan Lichtman, which considered how the Coalition' Plaintiffs’ plans performed for Hispán-ica. ...

Professors Dario' Moreno and Baodong Liu, experts hired by the Legislature, testified about how the Legislature’s and the Challengers’ plans performed for Hispanics. The Legislature also called to' testify the professional staff that drew- its maps: Jay Ferrin, the Staff Director of the Senate Committee on Reapportionment, Jason Poreda, the Staff- Director of -the House Select Committee on Redistricting, and Jeffrey Takacs, a- special advisor to that Committee. Senator William Galvano, the Chair of the Senate Committee on Reapportionment, and .'Senator Tom Lee, a member of the Committee, also testiñed for the Senate. Both senators testiñed in support of, the Senate Plan, and Senator Lee specifically, dispelled any suggestion that he proposed his amendment — -which was incorporated into- the Senate Plan— .with-the intent to disfavor any incumbent or to favor himself.

THE TRIAL COURT ORDER

After receiving * proposed orders from the parties, the trial court entered its own comprehensive order; recommending adoption of a remedial map. It first analyzed the seven proposed remedial maps submitted by the parties: the single map submitted by the House; two maps submitted by the Senate;' three maps submitted by the Coalition Plaintiffs; and the .one map sub-, mitted by the Romo Plaintiffs.

In doing so, the trial* court first set forth what it understood to be the applicable legal standard and parameters of review and determined that, pursuant to this Court’s directions, “the burden remains on the House and Senate to justify their chosen configurations, and that no deference is due to their choices regarding the drawing of the districts.” Trial Court Order at 5. In interpreting this Court’s direction in the Second Relinquishment Order to “especially focus on the House and Senate maps, any amendments offered thereto, and the ■ areas of agreement,” the trial court concluded that meant that the “maps passed by each chamber, especially where they are in agreement, are the closest [they] will come to an expression of the preferences of the elected representatives of the people as to a remedial map.” hi The trial court then determined that if would:

[F]irst evaluate the maps proposed by the House and Senate to determine which map,- or portions thereof, best meet the Court’s criteria. Then I should evaluate that configuration in light of any challenges thereto by the Plaintiffs to determine, if the Legislative defendants can meet their burden ■ as noted above, or if some other configuration best fulfills the Court’s directions and all constitutional-requirements.

Id,

The trial court decided that if, in its review, it determined that the parties were “in agreement as to any particular district,” then “it is- no longer an issue for [the trial court] to resolve.” Id. at 7-8. The trial court further concluded that it was “not at-liberty to draw something different than what is contained within the maps proposed by the parties.” Id. at 8.

; In its review of the Legislature's proposed plans for Districts 1-through 19, the trial court concluded that these districts were not: disputed by the Challengers and that they were “on the whole, more compact and contain fewer, city and county splits than in the '2012 and 2014 legislative maps.” Id. The trial court noted that of these districts, Districts 5,13, and 14 were three that were required to be redrawn. Id.

The - trial court then considered the Challengers’ general complaint that the “actual drawing of the base map was not open to the public, nor recorded.” Id. at 8-9. It determined that although “[r]e-cording the sessions -would probably have been a good idea,” there was no way to “prevent a map drawer from .manipulating lines with a partisan intent.” , Id. at 9. Ultimately, the trial court stated that it remained convinced that:

[T]he- best, if not perfect, way to guard against improper partisan intent in a map is to look closely -at any tier two shortcomings and scrutinize the purported reasons for those shortcomings. If there is a way to make a map more compliant without sacrificing tier-one requirements, then it should , be done. This will result in not’ only a more compact map that splits less cities and counties,. it will go far in minimizing-the risk, or the perception, that it was drawn with a partisan intent.

Iá

The trial court also dismissed the Legislature’s argument that the Coalition Plaintiffs’ plans were drawn with improper.intent:

Moreover, I find no evidence to suggest that CP-1 was drawn with improper partisan intent. Mr, O’Neill, Coalition Plaintiffs’ map drawer, testified that he strove to draw the most tier-two compliant configuration of South Florida, did not consider' political or incumbent data in drawing the maps, and was not given any other direction but to focus on and comply with the requirements of Article III, section 20 and Apportionment VII and to improve compactness and adherence to majoh roadways where possible.

Id. at 14.

The trial court.found the Coalition Plaintiffs’ map drawer, .O’Neill, “to be straightforward-in his testimony, logical in his approach .to drawing the districts, and persuasive in his conclusions.” Id. The trial court further found “no evidence to suggest that CP-1 was drawn with improper partisan intent.” Id.

The trial court determined that CP-1 was the ‘ best plan as to Districts 20 through 27, and specifically noted' that with respect to the tier-two constitutional standards — that is, how compact' the districts are and how well they utilize existing political and geographical boundaries— CP-1 is “more compact and splits fewer cities than any of the others.” Id. at 12. The trial court also found CP-1 more visually compact and “follow[ed] major roadways far more closely than the legislative proposals.” Id. at 4.

The trial court'stated that because the Legislature had “the burden of defending its choices in all respects,” the Legislature should have “taken another look at the South Florida- districts, not for political performance but for better tier two compliance, either in response to the Plaintiffs’ complaint, or better yet, on its own initiative.” Id. at 4, 11. Yet, the Legislature did not:

The map drawers and their bosses seemed -uninterested in exploring other possible configurations to see if these districts could be drawn more compact and reduce county and city splits. I ■would think the Legislature would have anticipated, questions about improving tier two compliance and have been prepared to respond to such questions by saying they had explored several possibilities, and they chose the most compliant version.

Id., at 11. As.the- trial- court noted, the Coalition Plaintiffs were able .to easily-improve tier-two, compliance: ■. . . ,

The- Coalition Plaintiffs’ map drawer seemed to have no trouble improving tier two compliance considerably. Indeed, CP-1 is hands down the best .tier two performing map of the group. As to Districts 20-27 it is more compact and splits fewer cities than any of the others.

Id. at 12.

When reviewing CP-1 as to Districts 20 through 27, the trial court paid special attention to the Legislature’s configuration of Districts 26 and 27, districts this Court specifically invalidated in Apportionment VII:

I understand why the Plaintiffs might be suspicious as to Districts 26 and 27. The Florida Supreme Court, in its July 9th Order, found that the Legislature had needlessly split the City of Homestead, thereby turning one Democratic and one Republican district into two Republican-leaning districts. . The proposed map, 9071, which admittedly does not split Homestead,, actually enhances the partisan effect in favor of the. Republican Party. The irony of the cure being worse than the illness is not lost on me.

Id. at 10. (Emphasis supplied.)

Because the House and the Senate could not agree on six districts in central Florida, the trial court was tasked with recommending which configuration, for that region best complied with the directives this Court set out in Apportionment VII and all other constitutional requirements. Accordingly; the trial court recommended adoption of the House Plan for Districts 9, 10, 11, 15, 16, and 17.

After careful analysis, including ah evaluation of the expert witnesses offered by both sides, the trial court recommended that this Court adopt the House’s configuration of Districts 1 through 19 and the configuration of Districts 20 through 27 contained in CP-1. In its order, the trial court found that the Legislature did not meet “its burden of justifying the proposed versions of Districts 20 through 27 in [the House’s and the Senate’s plans].” Id. at 19.

ANALYSIS

In Apportionment VII, we held eight specific districts, had constitutional deficiencies — Districts 5, 13, 14, 21, 22, 25, 26, and 27 — focusing on those districts that were a central feature of the Legislature’s unconstitutional intent. During the unsuccessful special session, the Legislature addressed each of these districts, attempting to remedy the problems wé identified. The trial court found- that, as to the first nineteen congressional districts,-the Challengers did not dispute the Legislature’s proposed configuration of these districts, including Districts 2, 3, 4, 6, 7, 9, 10, 11, 12, 15, 16, and 17, which were affected by the redrawing of Districts 5, 13, and 14 that we invalidated in Apportionment VII. While the Senate contends that its configuration of Districts 9, 10, 11, 15, 16, and 17 is preferable to the House’s configuration, we review the dispute between the House and the Senate as to these six districts last.

In reviewing the trial court’s recommendations, we note that there are actually three different inquiries and address them in the following order: First,.we review the trial court’s recommendations and the agreement between the Senate and the House and the Challengers as to redrawn Districts 2, 3, 4, 5, 6, 7, 12, 13, and 14, which comprise the invalidated Districts 5, 13, and 14 and the uncontested districts affected by the redrawing of those districts. Second, we review the Challengers’ arguments regarding the South Florida districts: Districts 20 through 27. Third, we review the trial court’s recommendations regarding the districts that were the subject of disagreement between the Senate and the House: Districts 9, 10, 11, 15, 16, and 17.

In reviewing the trial court’s order “recommending adoption of remedial map,” we are mindful that as the trier of fact, the trial court was charged with the evaluation of the expert witnesses and testimony of all those who testified. Accordingly, we uphold the trial court’s factual findings so long as these findings are supported by competent, substantial evidence. See Apportionment VII, 172 So.3d at 372-73, 391-92. In first reviewing the districts uncontested by the Legislature and the Challengers, we remain mindful that the Legislature bears the burden of demonstrating that the configuration it selected must comply with this Court’s directions in Apportionment VII and'the constitutional requirements as set forth' in article III, section 20. ■

I. THE UNCONTESTED DISTRICT CONFIGURATIONS OF THE REDRAWN DISTRICTS

The redrawn districts that all parties agree to include the three districts invalidated in ‘Apportionment VII — Districts 5, 13, and 14 — and seven other redrawn districts affected by the redrawing of the invalidated districts — Districts 2, 3, 4, 6, 7, 12, and 18. Because all parties agree as to the redrawn configurations and because the trial court concluded that the Legislature met its burden to justify its redrawn configurations for these seven districts, we approve the trial court’s recommendation.

As to the uncontested districts that we specifically invalidated in Apportionment VII, we begin with District 5.

A. DISTRICT 5

In Apportionment VII, District 5 was the “foeal point of the challenge to the Legislature’s redistricting plan,” and the Challengers alleged that the Legislature’s winding, North-South configuration of this district was “a linchpin to the Legislature’s efforts to draw a map that favors the Republican Party.” Apportionment VII, 172 So.3d at 402.

We held that the trial court — which had concluded that District 5 was “a key' component of the Legislature’s unconstitutional intent in the drawing of the congressional redistricting plan” — erred in “deferring to the Legislature’s North-South configuration on the basis of unstated ‘non-partisan policy reasons.’ ” Id. at 403. Because we concluded that the Legislature could not establish “that the North-South configuration is necessary to avoid diminishing the ability of black voters to elect a candidate of their choice” — the justification offered by the Legislature for its enacted configuration — we determined that “District 5 must be redrawn in an East-West manner.” Id.

Although District 5 was required to be drawn from East to West, no specific configuration was mandated in Apportionment VII. Nor did j;he Court specify a certain Black Voting Age Population (BVAP) or black share of registered Democrats as a “floor” below which the ability of black voters to elect a candidate of choice was certain to be diminished. In other words, in Apportionment VII, this Court examined the Legislature’s enacted configuration and justification and held that this justification could not withstand legal scrutiny under the appropriate standard of review, leaving it to the Legislature to redraw the district based on the guidance the Court provided.

Both the Senate and the House, choosing not to deviate from the Base Plan drawn by legislative staff during the special session, adopted the East-West version of District 5 presented in the alternative “Romo A” plan that was introduced into evidence during the original trial. Although the trial court observed that the District 5 drawn by the Legislature “appears still to be one of the least compact of the districts,” the Challengers do not object to District 5 as proposed by the House and Senate and have presented no alternatives for the district. As the trial court noted, there was “no evidence” presented at the relinquishment hearing that District 5 “could have been drawn more tier-two compliant without adversely affecting minority voting rights protected under tier one.” Accordingly, the trial court recommended that this Court adopt this configuration for District 5 and the surrounding districts.

We agree with the trial court and conclude that this proposed district — drawn by legislative staff, passed by both the House and Senate, and agreed to by the Challengers — complies, with this Court’s directions in Apportionment VII. It is an East-West district that remedies the improper partisan intent found in the prior version of District 5. The new District 5 contains four , whole counties and parts of four others, and is more visually and statistically compact than both the 2012 enacted district that was previously invalidated and the Legislature’s 2014 remedial plan.

. As we noted in Appoionment VII when analyzing the “Romo A” configuration of this district, the ability of black voters to elect a candidate of their choice is not diminished. With a black share of registered Democrats of 66.1%, the black candidate of choice is likely to win a contested Democratic primary, and with a Democratic registration advantage of 61.1% to 23.0% over Republicans, the Democratic candidate is likely to win the general election. Apportionment VII, 172 So.3d at 405. .

None of the parties in this case object to the Legislature’s proposed configuration for District 5, which was the same in all seven proposed plans submitted for the trial court’s consideration. Because the proposed district comports with this. Court’s directions in Apportionment VII and does not diminish the ability of black voters to elect a candidate of choice, the Legislature has met its burden to justify the configuration it selected.

B. DISTRICTS 13 & 14

The next two districts we invalidated in Apportionment VII were Districts 13 and 14. In 2012, the Legislature drew these districts so that District 14 crossed Tampa Bay from Hillsborough County, splitting Pinellas County and the City of St. Petersburg to include -a portion of the black population in southern Pinellas County in District 14. The Challengers contended that the Legislature’s configuration of these districts — -which “added more Democratic voters to an already safely Democratic District 14, while ensuring that District 18 was more favorable to the Republican Party” — was “directly connected to the trial court’s finding that the enacted map was unconstitutionally drawn, to favor the Republican Party.” Apportionment VII, 172 So.Sd at 407.

Addressing this challenge, we concluded thát the trial court orred in deferring to the Legislature’s enacted configuration and failing to view these districts “through the lens of the direct and circumstantial evidence of improper intent presented at trial.” Id. We rejected the Legislature’s race-based justification for crossing Tampa Bay — that it allegedly was necessary to pick up voters from Pinellas County in District 14 to increase the minority voting strength in that district — and held that “Districts 13 and 14 must be redrawn to avoid crossing Tampa Bay.” Id. at 408-09.

During the special session, both the House and the Senate adopted the configuration of these districts drawn by legislative staff in the Base Plan. That configuration remedied .the improper intent we previously identified, keeping District 14 entirely within Hillsborough County and not crossing Tampa Bay. District 13, which remains completely within Pinellas County, now includes the entirety of the southern portion of that county and all of the City of St. Petersburg.' The trial court reviewed this area with special focus, noting that this Court required it to be redrawn based on constitutional infirmities. The trial court then reviewed this area and the surrounding areas and found, as a whole, the districts are now “more compact and contain fewer city and county splits than in the 2012 and 2014 legislative maps.” Trial Court Order at 8.

No party objects to the Legislature’s chosen configuration for these districts, which was the same in all seven proposed plans submitted for the trial court’s consideration. As with District 5, we agree with the trial court and conclude that the Legislature has met its burden to demonstrate that its selected, agreed-upon configuration of Districts 13 and 14 complies with this Court’s directions in Apportionment VII and the constitutional requirements.

II. THE CONTESTED DISTRICT CONFIGURATIONS

Before considering the configuration of districts contested by the Challengers, we address the Legislature’s general attacks on the Challengers’ maps: (a) that the Challengers violated this Court’s instructions and also fundamental fairness by not presenting its maps to the Legislature; and (b) that this Court and the trial court erred in failing to consider the intent of the Challengers in drafting the maps presented to the trial court and this Court. After analyzing this argument, we then proceed to review the challenged districts. In our review of the challenged districts, we remain mindful, as the trial court did in its own review, that the Legislature bears the burden of justifying its proposed remedial congressional plans.

A. THE LEGISLATURE’S CONTENTIONS: FUNDAMENTAL FAIRNESS AND THE INTENT BEHIND THE DRAWING OF THE ALTERNATIVE MAPS

Before turning to an analysis of the contested districts, we first must address the Legislature’s allegations concerning the Coalition Plaintiffs’ alternative maps. Specifically, the Legislature presents two arguments: (1) the adoption of CP-1 violates fundamental fairness because the Coalition Plaintiffs failed to present the CP-1 plan to the Legislature first and because this plan adopts revised districts that had not been invalidated in Apportionment VII; and (2) the trial court erred by failing to consider the intent of the drafters of CP-1.

First, the House contends that the trial court’s order violates “fundamental fairness” because the Coalition Plaintiffs did not submit CP-1 to the Legislature during its special session and produced it only one week before the hearing. The House argues that it “had no opportunity (if it were even proper) to redraw its proposal and to participate in the Coalition Plaintiffs’ game of leapfrog.” The Senate similarly argues that because the Coalition Plaintiffs’ alternative maps were not publicly proposed to the Legislature, and “they waited until the special session ended and sprang them forth in litigation,” the public and the trial court had little opportunity to review and consider their proposals. The Challengers counter this specific contention by explaining that after publication of the Base Plan, the League of Women Voters of Florida and Common Cause sent a letter specifically expressing their concerns regarding the configuration of Districts 26 and 27 and urging the Legislature to “find a more non-partisan way to draw” these districts. In response, the Legislature accused the Coalition Plaintiffs of making a “blatant request to make District 26 ‘more Democratic’ and asking ‘the Legislature to engage in partisan gerrymandering.’ ”

We first note that even assuming that it would have been preferable for the Legislature to have the alternative plans during special session, once the special session adjourned without the Legislature passing a remedial plan, it was the House that requested that all parties be permitted to submit alternative plans and the agreed-to scheduling order included specific details about the information that should be included with the alternative plans to ensure full disclosure.

Second, as to the specific argument regarding the Coalition Plaintiffs’ failure' to submit alternative plans during the" special session, the'trial court rejected it and stated as follows:

The Legislature complains that the Plaintiffs did not participate in the open and transparent process of drawing a remedial map. ''But wheh the Plaintiffs tried to participate by pointing out what anyone in the Legislature could also have determined — that the new districts were more Republican leaning than before — they are accused of trying to improperly insert- political performance into the equations.

Trial Court Order at 11.

We agree with the trial court that there was no violation of fundamental fairness by the alternative plans not being submitted during the special session. It was logical that the Challengers awaited the release of the Base Plan to ascertain what changes the Legislature contemplated. As the League of Women Voters of Florida and Common Cause expressed to legislative leadership in their letter, the groups “applaud [the Legislature’s leaders and their staff] for [their] ’ efforts to follow the suggestions of the Florida Supreme Court” and that “[f]or the most part the base map appears to comply with” the opinion.

Moreover, the Legislature knew of alternative, more tier-two compliant ways in which to draw the South Florida districts,but rejected them. In the original trial court proceeding in 2014, the Romo Plaintiffs submitted configurations for these districts that are conceptually the same as the configuration of most of the districts in CP-1. In particular,- the Romo trial map and CP-1 both contain a reconfigured District 20 that lacks an appendage down 1-95 in Palm Beach County-and that extends south to the Broward-Miami-Dade County line. Both maps contain a reconfigured District 25 that withdraws from Broward County to reduce the number of times that county is split. Both maps contain a reconfigured District 27 that sits compactly in central Miami-Dade County, rather than stretching south along the coast to the Miami-Dade-Monroe County line. Certainly, the Legislature, had notice, of the possibility of making some, if not all, of the South Florida districts more tier-two compliant. Further, the Legislature also had notice of a more tier-two compliant way to draw Districts 26 and 27 through the introduction of Senator Bullard’s amendment during the special session, but rejected that amendment. ..

The House next claims, as part of its fundamental fairness argument, that the trial court’s order ignores this Court’s own instructions to the Legislature to only redraw the specific districts we invalidated in Apportionment VIL The House therefore argues that the trial court, in recommending a specific configuration'of districts that were not ordered to be redrawn in Apportionment VII, exceeded -'this Court’s directions to “focus” on the House and Senate plans. The Legislature is correct that Apportionment VII did not require the Legislature to redraw the-entire map and start anew. See Apportionment VII, 172 So.3d at 413 (“The Legislature need not,'in addition, redraw the entire map.”). However, redrawing the districts this Court invalidated in South Florida — Districts 21, 22, 25, 26, and 27 — would necessarily require redrawing the boundary lines and ultimately- the shape of adjacent South Florida Districts 20 and 23. Indeed, this Court stated exactly that: “[T]he Legisla-tee must redraw — Districts 5, 13, 14, 21, 22, 25, 26, 27, and all other districts affected thereby.”..- Id. at 416 (emphasis supplied). Accordingly, the trial court did not err in considering configurations of districts not specifically invalidated in Apportionment VIL

Finally, we address a claim raised by both the Senate and the House — that the trial court erred in not considering the intent of the drafters of CP-1 or, for that matter, the other alternative maps. The' House asserts that this proceeding “abounds with glaring ironies and striking contradictions that undermine the fairness and credibility of the entire proceeding,” including that the courts “condemned the ‘secretive shadow process’ in which the Legislature allegedly drew districts” while the “creation of CP-1 in an apartment in Los Angeles failed to raise an eyebrow.” In sum, the House argues that “different rules applied to different maps.” The Senate, while somewhat more restrained, echoes the House’s arguments that the adoption of CP-1 would endorse a map “drawn in secret, instead of in the open and transparent legislative process this Court envisioned in Apportionment VII.”

This contention is contrary to the record. As we have noted, the trial court’s scheduling order, which all parties agreed to, required specific identification of “every person involved in drawing, reviewing, directing, or approving the proposed remedial plan.” Although the maps themselves were not on trial, their drafters- were called to testify during the relinquishment hearing and were subject to cross-examination, For instance, on direct examination during the evidentiary hearing, the Coalition Plaintiffs’ map drawer, O’Neill, testified to the type of instructions he received regarding how to draw CP-1: “You pointed me to the constitution, and you made sure I read the specific sections about redistricting. And you directed me to follow only those criteria and use no other considerations in deciding how to evaluate a district or the map as a whole.” On cross-examination, he further testified that “I was just asked to draw nonpartisan, constitutionally-compliant maps that reflected the Supreme Court’s directions.” After hearing O’Neill’s testimony, the trial court found him “straightforward,” and “logical in his approach to drawing the districts and persuasive in his conclusions.” Ultimately, the trial court stated that it found no evidence “to suggest that CP-1 was drawn with improper partisan intent.”

The trial court, like this Court, reviewed the proposed plans to analyze the objective criteria this Court has set out in our past seven opinions, giving effect to the Fah’ Districts Amendment. The trial court then discussed .each of the submitted proposed maps by written order, setting out its determinations regarding the tier-two criteria. With those objective criteria of Article III, section 20 and, this Court’s interpretation of those criteria in mind, the trial court noted that CP-1 was more compact, had fewer miles of border perimeter, and reduced the number of split cities. The alternative maps submitted to the trial court demonstrated that the Legislature did not meet its burden of justification as to its configuration of Districts 20 through 27 when these alternative maps, specifically CP-1, were objectively better by tier-twp standards.

Moreover, the Legislature’s and Justice Polston’s argument that the trial court should have considered the intent of the drafters of CP-1 fundamentally misunder-. stand's the trial court’s role and this Court’s role in the current proceeding. As explained in this Court’s relinquishment orders, and as set out in Apportionment VII, this Court directed the trial court to approve or disapprove the Legislature’s enacted remedial map — or, as what ultimately occurred, approve or disapprove the proposed remedial maps of the parties after the Legislature failed to enact a. map during the special session. Based on the finding that the Legislature’s prior proposed remedial congressional plan was tainted with partisan intent coming out of a shadow process in which political operatives.infiltrated and influenced the Legislature, the burden switched to the Legislature to justify its configuration of its plans. Thus, as the trial court correctly noted in this proceeding,, “It is the Legislature that bears the burden of defending its proposed maps, not the Plaintiffs.” In other words, we are tasked with determining whether the Legislature met its burden as to its proposed remedial congressional maps.

.Additionally, Apportionment VII did not forbid a citizen affiliated with a particular party from drawing a map, nor was our affirmance of the trial court’s finding of unconstitutional intent based solely on the fact that political consultants aligned with the Republican Party had drawn maps. 172 So.Sd at 374. Instead, this Court’s decision rested largely on the Legislature’s own claims that it had conducted an open and transparent redistricting process, while it was being manipulated into a violation of its constitutional duty. This Court explained that “if evidence exists to demonstrate that there was an entirely different, separate process that was undertaken contrary to the transparent effort , in an attempt to favor a political party or an incumbent in violation of the Florida Constitution, clearly that would be important evidence in support of the claim that the Legislature thwarted the constitutional mandate.” Id, (quoting Apportionment IV, 132 So.3d at 149).

- Our decision detailed, at length, the circumstantial evidence revealing the Legislature’s improper intent — evidence found and cited byr the trial eourt in reaching that conclusion — including destruction of records and numerous “coincidences.” See, e.g,, Apportionment VII, 172 So.3d at 385. Our conclusion that the process was tainted with improper intent did not rest oh the "fact that partisans submitted maps but that “a group of partisan political operatives ‘conspire[d] to manipulate and influence the redistricting’ process’ and succeeded in ‘infiltrating] and influencing] the Legislature, to obtain the necessary cooperation and collaboration’ to ‘taint the redistricting process and the resulting map with improper partisan intent.’ ” Id', at 376. (emphasis omitted).

In reaching dur conclusion, we used the trial court’s detailed findings as to how the operatives concealed their actions by using proxies to submit their proposals, wrote scripts for others to state, and made a mockery of the Legislature’s proclaimed transparent and open process, and that they “[found] other avenues, other ways to infiltrate and influence the Legislature, to obtain the necessary Cooperation and collaboration to ensure that their'plan was realized, at least in part.” Id. at 377.

Thus, the Legislature is trying to conflate several arguments. The reason that improper partisan intent was found in the drawing of the map was not because of the intent of a particular map drawer or partisan operative. And assuming in this case that the Legislature wants to ascribe an improper intent to the Challengers’ redistricting plan, we would point out that the very record here belies that motive, especially as to the Coalition i Plaintiffs. An excellent example is the Coalition Plaintiffs’ map with regard to' Districts 21 and 22. Although Democrats complained that the redrawn map pitted two Democratic incumbents against one another, and even though the Romo Plaintiffs championed a vertical configuration before the trial court, the Coalition Plaintiffs maintained their advocacy for a “stacked” configuration of Districts 21 and 22 that substantially improves tier-two compliance.

A redistricting process is not tainted merely by permitting citizens to speak out in a public forujn and suggest a plan or portion of a plan. Nor was it tainted here when the Coalition Plaintiffs’ map drawer proposed an alternative configuration of the South Florida districts that substantially improved tier-tw