After a regular and two special sessions of Florida's Legislature failed to pass a legislative redistricting map compliant with Florida's Constitution, Florida's courts are now in charge of the redistricting. Circuit Court Judge George Reynolds has scheduled a Dec. 14-18 trial to begin the process of choosing a map from those submitted to him. His recommendation will then be passed on to Florida's Supreme Court.
Legislators have an inherent conflict of interest in drawing legislative districts because in doing so they are picking their voters, which violates the democratic principle that voters should pick their representatives. This conflict results in a gerrymander.
The alternative of having judges choose maps is also problematic because doing so undermines the judiciary's legitimacy. Americans believe that judges decide fundamental election questions, including legislative redistricting, based on partisan and pro-incumbent criteria. The problem was vividly illustrated in Bush vs. Gore, the U.S. Supreme Court case that determined the outcome of the 2000 presidential election. Florida and U.S. supreme court judges denied partisan motivation, but the public didn't believe them.
Fortunately, a way exists for judges to preserve their legitimacy while upholding Florida's Constitution. Judges inherently have the power to convene a jury, including a "redistricting jury," to choose among submitted redistricting maps. Here's how a redistricting jury could work:
Judge Reynolds would convene a randomly selected jury consisting of 240 jurors, a man and women from each of Florida's 120 House districts and mirroring the partisan composition of Florida's registered voters. He would then instruct the jury in redistricting law (e.g., districts should be compact and utilize existing political boundaries).
The jury would be a "virtual" jury in that the jurors would meet in circuit courts near their homes and telecommute with Judge Reynolds' court in Tallahassee.
The jury would have no power to draft maps, only to choose among the submitted ones.
The jury would meet for only one day. Advocates for each map would make their initial case, then rebut their opponents' arguments. Jurors would then vote.
Florida's Supreme Court would review the map to ensure it complied with state law.
Would this result in a perfect district plan? Certainly not. But the practical question is whether it would improve upon the status quo. The answer, I believe, is yes.
Independent jurors would tend to block partisan gerrymanders and all would tend to block pro-incumbent gerrymanders.
If a redistricting jury were implemented earlier in the redistricting process, it would also save money. Florida's legislature spent more than $11 million dollars on redistricting during 2015, mostly on litigation. Multiplying the daily fee paid to Florida jurors ($15 per day) by the 240 jurors, a redistricting jury would cost less than 0.1 percent of that.
Instead of being the last step in the redistricting process, some version of a redistricting jury could one day be the first. Unlike the proposal here, that would require a constitutional amendment. But the democratic principle animating a redistricting jury would remain: the people, not those with an inherent conflict of interest, should decide.
J.H. Snider, a former American Political Science Association congressional fellow working on the staff of the U.S. Senate Judiciary Committee, is president of iSolon.org.