Legal Commentary

State Judge Strikes Amendment 7 From Fall Ballot

By Professor University of Miami School of Law

Amendment 7 is the poison-pill amendment added by our glorious state legislature in an effort to preemptively undo the effects of Amendments 5 and 6. Today a judge in Tallahassee held that Amendment 7 is too confusing and misleading to be on the ballot. See The Jacksonville Observer, Judge Yanks Redistricting Amendment from Fall Ballot, for more. (The headline is misleading: Amendment 7 is better thought of as the anti-redistricting amendment.)

It's important to understand just how raw a move Amendment 7 is. Florida is a state that is, most of the time, pretty finely balanced between Republicans and Democrats — we were, after all, the ultimate 50/50 state in the Bush-Gore election. But our state electoral districts are heavily gerrymandered to produce an overwhelming Republican majority.

As a result, the only way in which progressive legislation ever happens here is by referendum. That was, for example, how we got the maximum class size amendment passed. (Jeb Bush and other GOP leaders then spent years trying to repeal or undermine it, but generally failed.)

The referendum process is far from perfect, and may even discomfit those small-r republicans who see republican virtue in representative processes and demotic danger in direct democracy, but it has on balance been good for Florida. (See Of Pigs and the Ballot Box.) It was, therefore, particularly unfortunate — but in no way surprising — that Florida Republicans recently managed to enact a constitutional amendment requiring a super-majority for all future amendments.

Florida progressives then decided to attack the root cause of our electoral problems by putting two amendments on the ballot which would eliminate gerrymandering by requiring rational and compact districts. Amendments 5 and 6 — the result of a popular campaign to attract the large required number of signatures — may not be perfect, but they're pretty good. There were certainly good enough to frighten Tallahassee politicians. In fact, from afar it seems the state political establishment panicked. Sadly, this panic was not limited to the State's GOP but also included entrenched Democrats in minority districts who knew that their electoral prospects would be harmed if black voters were no longer lumped together in a small number of political ghettos but instead distributed more rationally according to political and geographic boundaries.

The result was Amendment 7, surely one of the most undemocratic ideas to emanate from Tallahassee in some time. Not even willing to wait to see the results of the popular vote — perhaps they knew what was coming? — our legislators voted to put a poison pill on the ballot which, were it to pass, would largely if not totally undo the effects of the two amendments on the ballot before it. In other words, in response to state constitutional amendments placed on the ballot as a result of a signature campaign, legislators voted to have a counter-amendment designed to keep the current undemocratic structure, and not incidentally keep themselves in power.

I have not yet read the judge's decision. It is certain to be appealed, and will almost certainly end up in the Florida Supreme Court. I hope he is right. There is no question that Amendment 7 is a sneaky trick and an insult to democracy. Kudos to the League of Women Voters and the NAACP who brought this suit and are fighting for all of us.

Full post as published by Discourse.net on July 08, 2010 (boomark / email).