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U.S. District Court Upholds Florida Initiative Telling Legislature that Redistricting Must be Non-Partisan

Published on September 9, 2011, by in General.

On September 9, a U.S. District Court upheld Florida’s law, passed by the voters in November 2010, that congressional redistricting must not favor or disfavor any particular party. Here is the 22-page opinion. The case is Diaz-Balart v Browning, southern district, 10-23968-civ-Ungaro.

The case had been filed by a Republican member and a Democratic member of the U.S. House. They had argued that Article One of the U.S. Constitution requires that only state legislatures can pass election laws for Congress. The opinion points out that the Florida initiative, amendment 6, does not take redistricting power away from the legislature. It merely sets conditions on how the legislature must carry out redistricting. The plaintiffs say they will appeal.

10 Responses

  1. […] Here is the opinion (via Richard Winger). This entry was posted in redistricting. Bookmark the permalink. ← How Political […]

  2. Mark Brown

    The court got this one wrong. First, there is evidence that the Framers used the word “Legislature” for a reason. Sure, their primary concern, as reflected in their discussions in Philadelphia, was with a need for federal override. But that does not mean their choice of state legislatures over state governments is meaningless. My historical review leads me to believe that they delegated authority to state legislatures because they wanted US Senators and presidential electors chosen by representative bodies. It only made since to leave HOW to these bodies; and then the manner for selecting house members was added in the same fashion. I think it relatively clear that the Framers did not want it left to direct democracy.

  3. Demo Rep

    Attention all brain dead math students since 4 July 1776 (i.e. since the 1964 SCOTUS gerrymander cases) —

    1/2 votes x 1/2 gerrymander districts (even allegedly nonpartisan districts)= 1/4 control = MINORITY RULE — in all 50 State legislature regimes.

    Gee – what is that *Republican Form of Govt* in Art. IV, Sec. 4 of the nearly dead U.S.A. Const ???

    Did the 1776-1787 folks fight, die and stuggle to have ANTI-Democracy [i.e. MONARCHY/OLIGARCHY] regimes in the States ???

    A few clues — see the Federalist — regardless of ALL of the MORON lawyers doing gerrymander cases since 1964.

  4. Jim Riley

    What evidence is there that the Framers wanted presidential electors chosen by representative bodies? In the first presidential election most electors were chosen by the People directly, or by a process where they had substantial input. Surely the legislatures of Virginia, Pennsylvania, and Massachusetts could not have got this so wrong at so early a date.

    Wasn’t creation of the Constitution an exercise of direct democracy, that deliberately bypassed the institutions of the government?

  5. Jim Riley

    The litigation on a stick laws passed in Florida says that congressional and legislative districts must not be drawn with the intent of favoring parties or incumbents.

    In this case, only that for congressional districts is being challenged.

  6. Mark Brown

    # 4. The Framers made clear that Senators were to be elected by state Legislatures. This was clearly intended to avoid direct democracy. In the same fashion, they made sure that the president was not directly elected by delegating to the state Legislatures the power to select electors, as many state legislatures did–South Carolina up to the civil war. Even when direct democracy was implemented to select the electors, the Framers wanted this electoral college as a representative buffer. Hence, it is clear that the Framers wanted senators and the executive selected by representative bodies–not the people directly. Now, as for the house, this is less clear. Although the Framers borrowed state popular election standards, they still gave to the state Legislatures the power to regulate the elections. Why? I think because they had already done that with senators and the presidential electors and it was easier. In particular, they simply leaked the house with the senate in terms of who regulated elections.

  7. Demo Rep

    # 4, 6

    The 1787 Constitution, Art. VII was a subversion of the 1777 Articles of Confederation — the 9 States — see Art. X and XI of the AC.

    See AC Art XIII — ALL States had to agree to an amdt to the AC — FATAL of course.

    NO direct vote on having the 1787 Const in any State.

    The ratifying convention members were apparently chosen from the same gerrymander districts used for elected the lower houses of each State legislature — i.e. indirect MINORITY RULE.

    Popular votes for Prez electors starting mainly in 1832 — part of the Jackson *democracy* stuff.

    Result – each Prez/VP is de facto chosen by about 30 percent of the total voters — a majority/plurality of the votes in about 30 States/DC having a majority of the E.C. votes.

    STOP the EVIL ROT.

    Const Amdt —
    Uniform definition of Elector in ALL of the U.S.A.
    P.R. and App.V.

    i.e. ABOLISH the Senate, ABOLISH the Electoral College.

    SAVE Democracy before the EVIL robot party hack gerrymander MONSTERS start Civil WAR II and/or World WAR III.

  8. Jim Riley

    #4 South Carolina was exceptional, as it was the only holdout from 1832 through 1860. The most prominent States in the early American period, Massachusetts, Virginia, and Pennsylvania all had popular election of electorates. From the vote totals, it appears that the franchise was as broad for the elections for presidential electors as it was representatives.

    So in the most prominent of the States, a presidential elector was as representative as was a representative in Congress, but with a more limited role.

    Congress exercised time and manner regulation over the election of senators, even when they were elected by legislatures. The only reason Congress does not have the right to overrule as far as the place of senatorial elections is that would have meant they could dictate the meeting place of the legislatures.

    So the difference between the House of Representatives and the Senate was on who would do the electing; not on how the regulation of the manner and time of the elections. This might not be clear, because the legislature had the initial authority to prescribe the manner in which they, the legislature, would elect senators.

    If Congress had so chosen, they could have ordered that senators be elected on the first Tuesday after the first Monday in November. In 1845, they had already required South Carolina to appoint presidential electors on that day, even though it required the legislature to come into special session for that purpose.

    You are correct that the federal judge in Florida did not understand the arguments being made by the plaintiffs. In effect, he ruled that if the People can give the governor veto power, or the power to call the legislature into special session, or that legislation must be passed by concurrent majorities of a bicameral legislature; that is, to define the constitutional procedures of “legislating”, that the People can legislate directly.

  9. Mark Brown

    # 8. No doubt Congress can trump what the state Legislatures say about federal elections. But I fail to see how that is relevant to whether state government (however defined) can do the same, and what the Framers meant when the delegated the authority in the first instance to state Legislatures as opposed to states.

  10. Jim Riley

    You are conflating two different things.

    1) The election of Congress is delegated by the Constitution to two groups of individuals; (a) For senators, to the legislature. (b) For representatives, to the People qualified to vote for members of the larger body of the legislature.

    Obviously, only a State can determine who is a legislator, and how they are chosen. Congress can’t dictate whether a legislature has 3 houses or 1 house, or whether it has 30 members or 2000. It can’t prescribe the terms, qualifications, whether there are term limits, or when elections are held. It can’t dictate who votes for the legislators. And most of this is specified in State constitutions. You don’t want legislators determining who can vote for them, or their terms. Otherwise, they would pass a law that only their supporters can vote, and they could serve until they were 85. Congress has no legal or moral authority to dictate to a sovereign State how its legislature is constituted.

    It is quite natural for a state Constitution to define the electorate for congressional elections (before and after the 17th Amendment was passed).

    The US Constitution defines the electorate for Congress in general terms, the States defined the electorate within their State in more specific terms. Typically, this is done in the State Constitution, rather than by statute.

    2) The time, place, and manner of the election of Congress is delegated to the State legislature, with an override exercised by Congress.

    So even though Congress can and did dictate which day of the week the legislators voted for senator, and that there be a majority vote, and how the votes were cast; it had absolutely no say in how the legislators were chosen, or how the legislative process was conducted, or when the legislature met, or who was involved in the legislative process.

    Electing a senator, and providing the time, place, and manner regulations for senators were two separate processes. Voting for senator or applying to the United States for protection against domestic violence are not legislative actions, nor is ratifying a constitutional amendment (since Congress may dictate that a non-legislative body more representative of the People ratify amendments). Therefore these actions are reserved to a set of individuals who are incidentally legislators.

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