The fight for control over the House of Representatives is already a nightmare for the Democratic Party. Currently, Democrats hold a mere five-seat majority in the chamber, and Republican-controlled state legislatures are preparing to draw new gerrymanders that will entrench GOP power for a decade. But not all hope is lost. The 2020 census produced surprisingly decent results for Democrats, adding just a handful of new House seats to red states and tracking massive demographic decline in many Republican regions. As usual at the outset of a new decade, the battle for the House will likely come down to redistricting. And the redistricting process in just one state, Florida, may make or break Democrats’ majority.
In theory, Democrats should face a relatively level playing field in Florida. Although the state Legislature is dominated by the Republicans, voters passed two constitutional amendments in 2010 that prohibit partisan gerrymandering of legislative and congressional districts. So, while the U.S. Supreme Court declined to curb this practice, Florida courts remain empowered to police redistricting under their state constitution. During the last decade, Republican lawmakers egregiously violated the “fair district” amendments—leading the Florida Supreme Court to shoot down their maps. This time, however, that court looks very different: The progressive majority of last decade has departed, replaced by an ultraconservative 6–1 supermajority. This new bloc has repeatedly disregarded precedents, laws, and constitutional commands that conflict with its political agenda. There is, therefore, good reason for Democrats to fear that it will refuse to enforce the anti-gerrymandering amendments, allowing Republicans to draw themselves enough congressional districts to win the House.
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The saga of Florida’s last redistricting cycle is sordid and, at this point, unsurprising. Despite GOP opposition, voters overwhelmingly passed the fair district amendments in 2010, barring lawmakers from drawing districts “to favor or disfavor an incumbent or political party.” Republican lawmakers paid lip service to the new rules, holding public hearings and feigning a nonpartisan process. All the while, these lawmakers were secretly colluding with GOP operatives, allowing them to manipulate district lines behind closed doors. These operatives even wrote scripts for ostensibly ordinary citizens to read at hearings.
When voting rights advocates sued, the operatives tried to conceal evidence of this collusion, but the Florida Supreme Court forced them to turn over the incriminating documents. Republican lawmakers destroyed many of their own communications with the operatives, but the remaining evidence still demonstrated that legislators’ staff regularly sent draft maps to operatives—apparently for their approval. Circuit Court Judge Terry Lewis eventually ruled that these efforts “made a mockery of the Legislature’s proclaimed transparent and open process of redistricting” and amounted to “a conspiracy to influence and manipulate the Legislature into a violation of its constitutional duty.” The Florida Supreme Court affirmed that conclusion and struck down eight gerrymandered congressional districts, forcing major revisions to the map and substantially more competitive elections.
This redistricting story has a happy ending; the next one almost certainly won’t. The only reason we have evidence of Republicans’ “conspiracy” is because the Florida Supreme Court rejected their efforts to shield compromising communications with a claim of privilege. This decision split 5–2, with both conservative justices dissenting. And the only reason the state got a fairer congressional map is because the Florida Supreme Court vigorously enforced the fair district amendments. This decision, too, split 5–2, with both conservative justices dissenting. Since those rulings, all but one member of the progressive majority have stepped down, replaced by far-right justices. Floridians should expect this new conservative majority to effectively repeal the fair district amendments by judicial fiat and hand total control over redistricting to Republican legislators.
This expectation arises from the fact that the two conservative dissenters from last decade’s redistricting wars—Charles Canady and Ricky Polston—have taken control of the court. Canady, a former Republican member of the House of Representatives, is now chief justice. Former Republican Gov. Rick Scott replaced the progressive Justice James E.C. Perry with the conservative Alan Lawson. Scott’s successor, Gov. Ron DeSantis, installed three more justices on the bench: Carlos G. Muñiz, John D. Couriel, and Jamie Grosshans. All three are members of the Federalist Society, a network of conservative attorneys whose leaders helped DeSantis select justices. And all three have exhibited hostility toward state constitutional amendments that clash with their policy preferences.
Perhaps the most egregious example of this habit arrived this spring, when the court struck down two proposed ballot initiatives that would have legalized recreational marijuana. In its first decision, the conservative majority relied on the risible reasoning that the initiative was “misleading” because it did not explicitly state that marijuana would remain illegal on the federal level. In its second decision, the same majority struck a ballot initiative that would have legalized marijuana “for limited use.” According to the court, the phrase “limited use” was “misleading” because the amendment itself did not expressly limit the amount of cannabis that an adult could personally consume. Under precedent, the Florida Supreme Court is only allowed to shoot down proposed ballot initiatives under the most extreme circumstances. But this court flyspecked the marijuana proposals in blatant bad faith. In 2020, it struck a proposed initiative banning assault weapons using a similarly nitpicky justification.
If this is how the court treats proposed amendments, why should anyone expect it to give more deference to those that have already passed? Sure, the progressive rulings that settled last decade’s redistricting remain precedent. But the conservative justices have essentially abolished the doctrine of stare decisis, or respect for precedent, so it can ignore or overrule those earlier decisions. Moreover, DeSantis has suggested that he appointed justices who will trash their predecessors’ liberal legacy and toe the line on gerrymandering. Federalist Society judges, like the GOP, tend to despise judicial intervention in redistricting, seeing it as an affront to state legislatures’ constitutional authority. DeSantis seems to have done everything in his power to ensure that the Florida Supreme Court’s far-right bloc shares this view. If his justices are as biased as he hopes, their court may let Florida Republicans draw as many gerrymandered districts as it takes to seize the House.
