Brown et al v. State of Florida et al

RESPONSE in Opposition re Cross MOTION for Summary Judgment and Incorporated Memorandum of Law Joint sur-reply -

S.D. Fla.July 12, 2011

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 10 - CV- 23968 -UNGARO MARIO DIAZ-BALART and CORRINE BROWN, Plaintiffs, and THE FLORIDA HOUSE OF REPRESENTATIVES, Plaintiff-Intervenor, vs. KURT BROWNING, in his official capacity as Secretary of State of the State of Florida, Defendant, and FLORIDA STATE CONFERENCE OF NAACP BRANCHES, et al., Intervening Defendants. PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S JOINT SUR-REPLY IN OPPOSITION TO THE SECRETARY OF STATE’S MOTION FOR SUMMARY JUDGMENT Plaintiffs Mario Diaz-Balart and Corrine Brown, and Plaintiff-Intervenor The Florida House of Representatives, (collectively “Plaintiffs”), pursuant to this Court’s order granting leave (Doc. 80), respectfully submit this joint sur-reply in opposition to the Secretary of State’s Motion for Summary Judgment.1 1 An unsigned, undated copy of this document was previously filed as an attachment to Plaintiffs’ Joint Motion for Leave to File a Sur-reply (Doc. 79.) Following this Court’s order granting the Motion, Plaintiffs now re-file the sur-reply as a signed, standalone document. Case 1:10-cv-23968-UU Document 82 Entered on FLSD Docket 07/12/2011 Page 1 of 7 2 ARGUMENT In his reply brief in support of his motion for summary judgment, the Secretary of State for the first time argued that “Amendment 6 does not regulate the manner of holding elections.” (Doc. 77 at 8) (emphasis added). This is contrary to the Secretary’s earlier argument, that “Amendment 6 is an appropriate regulation of the manner of federal elections.” (Doc. 71 at 15) (emphasis added). With respect to whether Amendment Six regulates the manner of federal elections, the Secretary had it right the first time. The text of Amendment Six unequivocally precludes this argument. As enacted, Amendment Six governs the “Standards for Establishing Congressional District Boundaries.” Moreover, it has long been understood that redistricting “standards” for state legislatures to follow are themselves regulations of elections. The Elections Clause delegates regulation of the “Manner of holding Elections” to each state Legislature, but it also provides that “Congress may at any time make or alter such Regulations.” U.S. Const. art. I, § 4. Congress has regularly used its authority to make “such Regulations” by imposing redistricting standards. For example, state legislatures currently may draw only single-member districts. See 2 U.S.C. § 2c. Formerly, Congress mandated compact districts—just as Amendment Six would. See 31 Stat. 733; see also (Doc. 67 at 19 n.12). Even though these “standards” left the actual line drawing to state legislatures, they certainly regulated the manner of elections. See League of United Latin American Citizens v. Perry, 548 U.S. 399, 415 (2006) (“Congress, as the text of the Constitution[’s Elections Clause] also provides, may set further requirements, and with respect to districting it has generally required single-member districts.”) (Kennedy, J.). In Vieth v. Jubelirer, 541 U.S. 267, 276 (2004) (plurality), the Court explored the history of congressional redistricting standards, which, it noted, were imposed under “[t]he power bestowed on Congress Case 1:10-cv-23968-UU Document 82 Entered on FLSD Docket 07/12/2011 Page 2 of 7 3 to regulate elections.” Id. Indeed, as the Secretary acknowledged in an earlier brief, Congress’s Apportionment Acts demonstrate that redistricting standards regulate “the manner of federal elections.” (Doc. 71 at 17 n.11.) If redistricting standards imposed by Congress regulate the manner of elections, then redistricting standards imposed by the Florida Constitution do too. Moreover, the Secretary submitted Amendment Six to the Department of Justice for pre- clearance under Section 5 of the Federal Voting Rights Act, which applies only to “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” See Presley v. Etowah County Comm’n, 502 U.S. 491, 494 (1992) (quoting statute). If Amendment Six were nothing more than a limitation on the authority of elected officials, pre- clearance would have been unnecessary. See id. at 505-06 (rejecting “the view advanced by appellants and the United States, every time a state legislature acts to diminish or increase the power of local officials, preclearance would be required”).2 The Secretary’s new argument also highlights the weakness of Defendants’ case. All parties agree that state regulation of federal elections must be enacted through the state’s legislative process. Thus, Defendants must demonstrate either (i) Amendment Six is not a regulation of federal elections or (ii) it was enacted through the legislative process. After appropriately conceding that Amendment Six was not enacted through the legislative process, (Doc. 77 at 2),3 the Secretary now contends that Amendment Six is not a 2 Notably, Intervening Defendants League of Women Voters of Florida, Democracia Ahora, and the Florida State Conference of NAACP Branches, along with others, sued the Secretary in this Court, seeking to force the submission of Amendment Six to the Department of Justice. See LOWV, et al. v. Rick Scott and Kurt Browning, Case No. 4:11-cv-10006-KMM. This Court dismissed the case for lack of jurisdiction. See id., doc. 30 (Apr. 15, 2011). 3 The Secretary correctly explains that “Amendment 6 was not enacted through the ordinary legislative process. Constitutional amendments are never enacted through the ordinary legislative process, as there are fundamental differences between ordinary legislation and constitutional provisions, and there are, by constitutional design, distinct procedures for Case 1:10-cv-23968-UU Document 82 Entered on FLSD Docket 07/12/2011 Page 3 of 7 4 regulation of federal elections. Intervening Defendants maintain the opposite; they argue that Amendment Six “was indeed adopted as part of the legislative process,” and that the citizen initiative “is an integral part of that process.” (Doc. 78 at 6.) Through these diametrically opposed approaches, Defendants hope to convince this Court that Amendment Six is no different than the veto provision in Smiley or the referendum provision in Hildebrant. But it is fundamentally different. Minnesota’s general veto provision, and Ohio’s general referendum provision regulated only those states’ legislative processes—not the manner of federal elections. Substantive redistricting standards, on the other hand (whether imposed by Congress or a state constitution), do regulate the manner of federal elections. Finally, if the Secretary were correct that a constitutional provision could substantively dictate the legislature’s redistricting actions without itself regulating elections, then the Elections Clause’s use of “by the Legislature thereof” would have little meaning. The Secretary suggests no limit to what substantive limitations would be permissible. The Secretary’s argument would therefore permit a state constitutional provision demanding the Legislature draw specific districts—or even demanding the Legislature adopt a plan crafted by a state executive. But see Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006, 1011 (S.D. Ohio 2008) (“Plaintiffs correctly contend that only the legislative branch has the authority, under Articles I and II of the United States Constitution, to prescribe the manner of electing candidates for federal office.”). The Secretary’s new argument is wrong. Amendment Six regulates the manner of federal elections. And because the Elections Clause authorizes only regulations adopted through the legislative process, Amendment Six is invalid. amending the Florida Constitution and enacting Florida Statutes.” (Doc. 77 at 2.) The Intervening Defendants strain to make the directly contrary argument, notwithstanding the plain language of the Florida Constitution. (Doc. 78 at 6.) Case 1:10-cv-23968-UU Document 82 Entered on FLSD Docket 07/12/2011 Page 4 of 7 5 Respectfully submitted this twelfth day of July, 2011. /s/ Stephen M. Cody Stephen M. Cody Fla. Bar No. 334685 16610 SW 82 Court Palmetto Bay, Florida 33157 (305) 753-2250 Fax (305) 468-6421 stcody@stephencody.com Attorneys for Plaintiffs Corrine Brown and Mario Diaz-Balart /s/ Allen Winsor George N. Meros, Jr. Fla. Bar No. 263321 Allen Winsor Fla. Bar No. 016295 GRAYROBINSON PA Post Office Box 11189 Tallahassee, FL 32302 (850) 577-9090 Fax (850) 577-3311 gmeros@gray-robinson.com awinsor@gray-robinson.com - and- Miguel De Grandy Florida Bar No. 332331 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 (305) 444-7737 Fax (850) 443-2616 mad@degrandylaw.com Attorneys for Intervening Plaintiff, Florida House of Representatives Case 1:10-cv-23968-UU Document 82 Entered on FLSD Docket 07/12/2011 Page 5 of 7 6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was electronically served through the Court’s CM/ECF system, unless otherwise noted, this twelfth day of July, 2011 to the following: Harry Thomas Radey Thomas Yon and Clark 301 South Bronough Street Suite200 Tallahassee, Florida 32301 Phone: 850-425-6654 Email: hthomas@radeylaw.com Attorneys for the Florida Secretary of State Michael B. DeSanctis Paul M. Smith Jenner & Block, LLP 1099 New York Avenue, NW Washington, DC 20001 Phone: 202-639-6000 Email: eharen@jenner.com Attorneys for Intervenors Leon Russell, Patricia T Spencer, Carolyn H Collins, Edwin Enciso, Stephen Easdale, Florida State Conference of NAACP Branches and Democracia Ahora J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA 22304 Phone: 703-628-4673 Fax: 567-5876 Email: GHebert@campaignlegalcenter.org Attorneys for Intervenors Leon Russell, Patricia T Spencer, Carolyn H Collins, Edwin Enciso, Stephen Easdale, Florida State Conference of NAACP Branches and Democracia Ahora M. Laughlin McDonald ACLU Foundation 230 Peachtree St., NW, Suite 1440 Atlanta, Georgia 30303 Phone: 404-523-2721 Email: lmcdonald@aclu.org Randall C. Marchall ACLU Foundation 4500 Biscayne Blvd., Suite 340 Miami, Florida 33137 Phone: 786-363-2700 Attorneys for Intervenors ACLU of Florida; Howard Simon, Benetta M. Standly, Susan Watson, and Joyce Hamilton Henry Case 1:10-cv-23968-UU Document 82 Entered on FLSD Docket 07/12/2011 Page 6 of 7 7 Stephen Frederick Rosenthal Podhurst Orseck Josefsberg et al City National Bank Building 25 W Flagler Street Suite 800 Miami, FL 33130-1780 Phone: 305-358-2800 Fax: 305-358-2382 Email: srosenthal@podhurst.com Attorneys for Intervenors Leon Russell, Patricia T Spencer, Carolyn H Collins, Edwin Enciso, Stephen Easdale, Florida State Conference of NAACP Branches and Democracia Ahora Jon L. Mills Boies, Schiller, and Flexner, LLP 100 S.E. Second Street Suite 2800 Miami, FL 33131 Phone 305-539-8400 Email: jmills@bsfllp.com Attorneys for Janet Cruz, Arthenia L. Joyner, Luis R. Garcia, Joseph A. Gibbons and Perry E. Thurston Carl Edward Goldfarb Boies Schiller & Flexner 401 E Las Olas Boulevard Suite 1200 Fort Lauderdale, FL 33301 Phone: 954-356-0011 Fax: 356-0022 Email: cgoldfarb@bsfllp.com Attorneys for Janet Cruz, Arthenia L. Joyner, Luis R. Garcia, Joseph A. Gibbons and Perry E. Thurston Stuart H. Singer Boies, Schiller & Flexner LLP 401 East Las Olas Boulevard, Suite 1200 Fort Lauderdale, FL 33301 Phone: 954-356-0011 Email: ssinger@bsfllp.com Attorneys for Janet Cruz, Arthenia L. Joyner, Luis R. Garcia, Joseph A. Gibbons and Perry E. Thurston Joseph W. Hatchett Akerman Senterfitt 106 East College Avenue 12th Floor Tallahassee, FL 32301 Tel: 850.224.9634 Fax: 850.222.0103 Email joseph.hatchett@akerman.com Attorneys for Janet Cruz, Arthenia L. Joyner, Luis R. Garcia, Joseph A. Gibbons and Perry E. Thurston /s/ Allen Winsor Allen Winsor Case 1:10-cv-23968-UU Document 82 Entered on FLSD Docket 07/12/2011 Page 7 of 7