Initial Brief in Support of Senate Joint Resolution 1E Regarding Apportionment of the Florida Legislature (by Attorney G...

IN THE SUPREME COURT OF FLORIDA


CASE NO. 61,933


IN RE: Apportionment Law Appearing
as Senate Joint Resolution 1 E,
1982 Special Apportionment Session


INITIAL BRIEF IN SUPPORT OF
SENATE JOINT RESOLUTION 1 E REGARDING
APPORTIONMENT OF THE FLORIDA LEGISLATURE





JIM SMITH
ATTORNEY GENERAL

KENDRICK TUCKER
DEPUTY ATTORNEY GENERAL

MITCHELL D. FRANKS
ASSISTANT ATTORNEY GENERAL

GERALD B. CURINGTON
ASSISTANT ATTORNEY GENERAL

KATHLEEN J. WOLFF
LEGAL INTERN

DEPARTMENT OF LEGAL AFFAIRS
THE CAPITOL, SUITE 1501
TALLAHASSEE, FLORIDA 32301
(904) 488-9935

ATTORNEYS FOR PETITIONER


PKY LIBRARY
OF FLA. HISTORY




PKY LIBRARY
OF FLA HISTORY


TABLE OF CONTENTS

STATEMENT OF THE CASE AND OF THE FACTS 1

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 2

ARGUMENT

POINT I

WHETHER SJR 1E APPORTIONS THE FLORIDA
LEGISLATURE IN ACCORDANCE WITH THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION. 7

POINT II

WHETHER SJR 1E APPORTIONS THE FLORIDA
LEGISLATURE INTO CONSECUTIVELY NUMBERED
DISTRICTS OF EITHER CONTIGUOUS, OVERLAP-
PING OR IDENTICAL TERRITORY. 15

POINT III

WHETHER SJR 1E INVIDIOUSLY DISCRIMINATES
AGAINST ANY RACIAL OR LANGUAGE MINORITY
FOR THE PURPOSE OF MINIMIZING OR CANCEL-
LING THE VOTING STRENGTH OF SUCH MINORITY
IN VIOLATION OF THE FOURTEENTH OR FIFTEENTH
AMENDMENTS. 21

POINT IV

WHETHER STATE SENATORS WHO WERE ELECTED
FROM ODD-NUMBERED DISTRICTS IN THE 1980
GENERAL ELECTION WILL SERVE TWO OR
FOUR-YEAR TERMS. 29

CONCLUSION 49

CERTIFICATE OF SERVICE 50


-i-







TABLE OF AUTHORITIES

Page

Cases

Anggelis v. Land,
371 S..2d 857 (Ct.App. Ky. 1963) ....... 41

Baker v. Carr.
369 U.S. 186, 7 L.Ed.2d 663,
82 S.Ct. 691 (1962) .... . 7

Board of Supervisors v. Blacker,
92 Mich. 638, 646, 52 N.W. 951,
953 (1892) . . 16

Brown v. Firestone,
382 So.2d 654 (Fla. 1980) . 31

Butcher v. Bloom,
420 Pa. 305, 216 A.2d. 457, 459 (1966) .. 46

Cardenas v. Smathers,
351 So.2d 21, 21 (Fla. 1977) . 17

Carlton v. Mathews,
103 Fla. 301, 137 So. 815 (1931) . 35

Carr v. Brazoria County, Texas,
341 F.Supp. 155 (S.D. Texas 1972), aff'd, 468
F.2d 950 (5th Cir. 1972) . 46

Chapman v. Meier,
420 U.S. 1, 15, 42 L.Ed.2d 766, 95 S.Ct.
751 (1975) . . 25,39

Chavis v. Whitcomb,
307 F.Supp. 1362
(S.D. Ind. 1969), rev'd on other grounds,
403 U.S. 124, 29L.Ed.2d 363, 91 S.Ct. 1858 (1971) 46

City of Jacksonville v. Continental Can Co.,
151 So. 488 (Fla. 1933) . .. 18

City of Mobile v. Bolden,
446 U.S. 55, 64 L.Ed.2d
47, 100 S.Ct. 1490 (1980) . .. 23,24


-ii-







TABLE OF AUTHORITIES (continued)


Connor v. Finch,
431 U.S. 407, 52 L.Ed.2d 465,
97 S.Ct. 1828 (1977) . . 12,21
39

Farrelly v. Cole,
56 P. 492 (Kan. 1899) . .... 43

Farrey v. Bettendorf,
96 So.2d 889 (Fla. 1957) .. . 34

Ferrell v. State of Oklahoma ex rel. Hall
339 F.Supp. 73, 81 (W.D. Okla. 1972), aff'd,
92 S.Ct. 2045 (1972) . . 35,40

Gaffney v. Cummings,
412 U.S. 735, 37 L.Ed.2d 298, 93 S.Ct.
2321 (1973) . . 10,11
12,21,
26

Gray v. Sanders,
372 U.S. 368, 381, 9 L.Ed.2d
821, 831, 83 S.Ct. 801 (1963) . 7

Griswold v. County of San Diego,
32 Cal.App.3d 56, 107 Cal. Rptr.
845 (Ct.App. 4th Dist. 1973).. . 40

Groh v. Egan,
526 P.2d 863 (Alaska 1974) . 47,48

Harris v. Shanahan,
387 P.2d 771 (Kan. 1963) . 43

In Re Advisory Opinion to Governor,
313 So.2d 717 (Fla. 1975) . .. 34
In Re Apportionment Law Appearing as Senate
Joint Resolution Number 1305, 1972 Regular
Session,
263 So.2d 797 (Fla. 1972) .. 17,21,
24

In Re Apportionment Law, Senate Joint
Res. No. 1305,
263 So.2d 797 (Fla. 1972) . 1,28,46


-iii-







TABLE OF AUTHORITIES (continued)


Kilgarlin v. Hill,
386 U.S. 120, 17 L.Ed.2d 771,
87 S.Ct. 820 (1967) . . 9

Legislature of State of California v. Reinecke,
516 P.2d 6 (Cal. 1973) . 38,39,48

Mader v. Crowell,
498 F.Supp. 226, 229 (M.D. Tenn. 1980) 15,16
42
Mann v. Davis,
238 F.Supp. 458 (E.D. Va. 1964),
aff'd, 379 U.S. 694, 85 S.Ct. 713,
1 L.Ed.2d 698 (1965) . . 46

Mahan v. Howell,
410 U.S. 315, 35 L.Ed.2d 320,
93 S.Ct. 979 (1972) amended 411 U.S. 922,
36 L.Ed.2d 316, 93 S.Ct. 1475 (1973) 10,11

Marston v. Kline,
301 A.2d 393 (Pa. 1973) ..... ... 44

McGowan v. State of Maryland,
366 U.S. 420, 6 L.Ed.2d 393,
81 S.Ct. 1101 (1961) . 24
Milton v. Smathers,
389 So.2d 978, 981 (1980) . 23

New Democratic Coalition v. Austin,
200 N.W.2d 749 (Ct.App. Mich. 1972) . 45

Reynolds v. Sims,
377 U.S. 533, 12 L.Ed.2d 506,
84 S.Ct. 1362 (1964) . .. 7,9,10
13,46

Sims v. Amos,
336 F.Supp. 924 940
(M.D. Ala. 1972 . . 46

State v. Laxalt,
441 P.2d 687 (Nev. 1968) . .. 47


-iv-







TABLE OF AUTHORITIES (continued)


State v. Hinkle,
13 P.2d 42 (Wash. 1932) . .. 47

State ex rel. Dade County v. Dickinson,
230 So.2d 130 (Fla. 1969) . 35

State ex rel. Hatton v. Joughin,
138 So. 39 (Fla. 9 931) ............ 32

State ex rel. Landis v. Tedder,
143 So. 148, 150 (Fla. 1932) . 32

State ex rel. Reynolds v. Roan,
213 So.2d 25 a. 196) . .. 32

State ex rel. West v. Gray,
74 So.2d 114 (Fla. 1954) . 35

Swann v. Adams,
385 U.S. 440, 17 L.Ed.2d 501,
87 S.Ct. 569 (1967) . . 9

Twilley v. Stabler,
290 A.2d 636 (Del. 1972) . 44

United Jewish Organization v. Carey,
430 U.S. 144, 51 L.Ed.2d 229,
97 S.Ct. 996 (1977) . . 26

Village of Arlington Heights v. Metropolitan
Housing Development Corp.
429 U.S. 252, 50 L.Ed.2d 450,
97 S.Ct. 555 (1977) . . 24
Wakulla County v. Davis,
395 So.2d 540 (Fla. 1981) . ... 19

Washington v. Davis,
426 U.S. 229, 48 L.Ed.2d 597,
96 S.Ct. 2040 (1976) . . 24







TABLE OF AUTHORITIES (continued)


Whitcomb v. Chavis,
403 U.S. 124, 29 L.Ed.2d 363, 91 S.Ct.
1858 (1971) . .


9,22,24
26,27


White v. Regester,
412 U.S. 755, 37 L.Ed.2d 314,
93 S.Ct. 2332 (1973) . 10,12,23
24,27

FLORIDA CONSTITUTION


Art. III, 15, Fla. Cost. . .

Art. III, 15(a), Fla. Const. . .




Art. III, 15(b), Fla. Const. . ..
Art. III, 15(c), Fla. Const. . ..

Art. III, 16, Fla. Cost. . ..

Art. III, 16(a), Fla. Const. . ..


Art. III, 16(b), Fla. Cost. . .

Art. III, 16(c), Fla. Const. . .

Art. III, 16(c) and (d), Fla. Cost. .
Art. III, 16(d), Fla. Const . .
Art. V, 3(b)(7), Fla. Const. . .

Art. VII, 4, Fla. Const. . .

Art. X, 3, Fla. Const . .


29,36
37,38
20,32
33,34
35,36
37,38
48
47
47

1


3,15,17
18,20,31
34,49
31,32

31

30,31

50
31

16

47


-vi-







OTHER AUTHORITIES


Art. IV, 2, Illinois Constitution . 37

Comment, Reapportionment, 79 Harv.L.Rev. 1228 (1966) 15

10 Fla. Jur.2d, Constitutional Law 38 . 18

42 U.S.C. 1973(b) . ... .. 26


Letter to Representative Emerson Allsworth, Chairman,
Legislative Committee CRC from L.K. Ireland, Jr.,
'dated January 17 1966: Florida State Archives,
RG 005, Series 720, Box 5 .. . 36

Morris, The Florida Handbook, 1963-64, Peninsular
Publishing Co., (1963), p. 86 . 30

Webster's Seventh New Collegiate Dictionary
(1971) p. 180 . . 15


-vii-








STATEMENT OF THE CASE AND OF THE FACTS


STATEMENT OF THE CASE

This case comes within this Court's original jurisdiction

pursuant to Art. III, 16, Fla.Const., which provides in

relevant part as follows:

(c) JUDICIAL REVIEW OF APPORTIONMENT
Within fifteen days after the passage
of the joint resolution of apportion-
ment, the attorney general shall petition
the supreme court of the state for a
declaratory judgment determining the
validity of the apportionment. The
supreme court, in accordance with its
rules, shall permit adversary interests
to present their views and, within thirty
days from the filing of the petition,
shall enter its judgment.

(d) EFFECT OF JUDGMENT IN APPORTIONMENT;
EXTRAORDINARY APPORTIONMENT SESSION.
A judgment of the supreme court of the
state determining the apportionment to be
valid shall be binding upon all the
citizens of the state.. .

The nature of the case is that of a declaratory judgment

to determine the facial validity of the 1982 joint resolution of

apportionment, Senate Joint Resolution 1E (SJR 1E), which is the

sole question to be considered. See In Re Apportionment Law,

Senate Joint Res. No. 1305, 263 So.2d 797 (Fla. 1972). See also

the January 18, 1982 order of this Court in this case.

It is respectfully submitted that the Constitutions of the

State of Florida and the United States are the standards for


testing the facial validity of SJR 1E.






STATEMENT OF FACTS


The official census counts, following the 1980 decennial

census, were received by the State in March, 1981. The

Legislature later purchased a Master Enumeration District List

Coordinate Tape (MED-List Tape) from the Bureau of the Census.

This tape broke down the population of the State into units the

smallest of which were Blocks (mostly urban areas) and

Enumeration Districts (ED's)(mostly rural areas). These units

were the building blocks for larger census divisions: Block

Groups (BG's), which are combinations of blocks; Tracts, which

are combinations of BG's and/or ED's; and Census County Divisions

(CCD's), which are combinations of Tracts. These various units

were used by the Legislature to assemble the legislative

districts which are the subject of the case at bar. The

Legislature further insured the accuracy of that assembly by
incorporating revisions of the census count received from the

Bureau of the Census as late as December 22, 1981.

The Legislature began assembling competent staffs to deal

with the complexities of reapportionment in January, 1981, a full

year before the scheduled session. The staff assembled was

composed of experienced personnel from other legislative

committees, computer personnel from Florida State University,

cartographers, demographers and experts on reapportionment such

as Dr. Manning C. Dauer of the University of Florida.






Legislative committees on reapportionment began meeting

before the session, holding their first organizational meetings

in the summer of 1981.

Twenty-one (21) public hearings were held statewide under

the sponsorship of the House to solicit public comment. Both

House and Senate members participated in these hearings.

Invitations were made for the submission of proposals for actual

plans. Hearings were fully transcribed and copies made available

for use by the Legislature. The almost universal expression of

public support for single-member districts was a major factor in

the decision of both houses to employ such districts. Many

people, particularly minorities, believe that single-member

districts provide a more representative and responsive

government.

The plan at issue is embodied in.SJR 1E, which was passed

by the Senate and the House on April 7, 1982, during a special

apportionment session called by the Governor pursuant to Art.

III, 16(a), Florida Constitution. The plan before the Court

(SJR 1E) is a monumental achievement in voting equality and is

close to exact population equality among the districts. The

population of the State, as established by the Bureau of the

Census, is 9,746,324. Accordingly, the ideal Senate district

contains 243,658 people (the State population divided by forty
districts). The largest Senate district is District 35, with a

population of 244,945, which is a deviation from the ideal of







1,287 people or .53%. The smallest Senate district is District

22, with a population of 242,379, which is a deviation from the

ideal of 1,279 people or .52%. For the Senate, this results in a
total deviation from the ideal of 2,566 people or 1.05%.

(Exhibit E to Petition)

The ideal House district contains 81,219 people (popula-
tion of the State divided by 120 districts). The largest House
district is District 8, with a population of 81,392, which is a

deviation from the ideal of 173 people or .21%. The smallest

House district is District 10, with a population of 81,014, which

is a deviation from the ideal of 205 people or .25%. The total
deviation among the House districts, therefore, is 378 people or

.46%. (Exhibit F to Petition)

Recognition of the special needs of minority voters
resulted in the drawing of districts where their voting strength

will be concentrated. For example, the plan includes seven (7)

House districts with a hispanic population of 58% or higher and

seven (7) House districts with a black population of 52% or
higher. One (1) Senate district has a black population of 65%
and two (2) Senate districts have a hispanic population of 55% or

higher. (See computer printouts attached as Appendices 1 and 2;

Senate Districts 33, 34, 36 and House Districts 16, 17, 40, 63,

105, 106, 107, 108, 109, 110, 111, 112, 113, 115.) These
districts were drawn so that these minority segments of the

State's population would have a greater opportunity to elect
4






minority representatives. By establishing these districts the

Legislature achieved a long sought goal, effective representation

for all people of the State.

Additionally, the Legislature recognized the need to

maintain, as much as possible, the integrity of county and

municipal boundaries. This insures that voters will not be

confused over the district in which they are to vote. The plan

for Senatorial districts maintains the integrity of 44 counties

(66% of county lines), while the House districts do so with 26

counties (39% of those lines). Notably, in 24 of the 41 counties

split by the House district lines and in 10 of the 23 counties

split by the Senate district lines, the split was mandated

because the population was greater than the ideal number of

people per district so that the counties had to be split to

maintain population equality.


Finally, the plan achieves the contiguity required by the
Constitution of Florida. In every legislative district, the

voters can go from one part of their district to another without

leaving the district. This insures adequate access by everyone

in the district to their representative. (Exhibits D and E to

Petition)

In conclusion, the plan as embodied in SJR 1E achieves

near-exact population equality. More effective representation

has been achieved by creating single-member districts in both

houses, districts where minority voters have greater opportunity







to elect representatives of their choice, and by maintaining

county and municipal boundaries as much as possible.






ARGUMENT

POINT I

WHETHER SJR 1E APPORTIONS THE FLORIDA
LEGISLATURE IN ACCORDANCE WITH THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION.


In 1962, the United States Supreme Court brought the

federal courts into the "political thicket" of reapportionment by

deciding that the question of whether a state was apportioned on

the basis of population was a justiciable one, Baker v. Carr, 369

U.S. 186, 7 L.Ed.2d 663, 82 S.Ct. 691 (1962). Since Baker, the

Court has consistently held that the Equal Protection Clause of

the Fourteenth Amendment of the United States Constitution

requires political equality in the context of state legislative

apportionment. The concept of political equality, as succinctly

stated by Justice Douglas, can mean only one thing one

person, one vote." Gray v. Sanders, 372 U.S. 368, 381, 9 L.Ed.2d

821, 831, 83 S.Ct. 801 (1963).

In Reynolds v. Sims, 377 U.S. 533, 12 L.Ed.2d 506, 84

S.Ct. 1362 (1964), the United States Supreme Court held:

S. that the Equal Protection
Clause requires that a State make
an honest and good faith effort to
construct districts, in both houses
of its legislature, as nearly of
equal population as is practicable.
We realize that it is a practical
impossibility to arrange legisla-
tive districts so that each one has
an identical number of residents, or
citizens, or voters. Mathematical
exactness or precision is hardly a
workable constitutional requirement.
(Emphasis supplied) 377 U.S. at 577.

7








While acknowledging that somewhat more flexibility may be

constitutionally permissible with respect to state legislative

apportionment than in congressional districting, the Court did

not establish any constitutional litmus test as to what

constitutes "as nearly of equal population as is practicable."

Rather, the Court deemed:

it expedient not to attempt to
spell out any precise constitutional
tests. What is marginally permissible in
one State may be unsatisfactory in
another, depending on the particular
circumstances of the case. Developing a
body of doctrine on a case-by-case basis
appears to us to provide the most
satisfactory means of arriving at
detailed constitutional requirements in
the area of state legislative
apportionment. (emphasis supplied)
377 U.S. at 578.

Nevertheless, the Court did proceed to state that:

whatevervr the means of
accomplishment, the overriding objective
must be substantial equality of
population among the various districts,
so that the vote of any citizen is
approximately equal in weight to that of
any other citizen in the State. 377 U.S.
at 579.

Noting the historic pattern of deviations from the

equal-population principle in the apportionment of state

legislatures, the Court continued:







So long as the divergences from a strict
population standard are based on
legitimate considerations incident to the
effectuation of a rational state policy,
some deviations from the equal-population
principle are constitutionally permis-
sible with respect to the apportionment
of seats in either or both of the two
houses of a bicameral state legislature.
377 U.S. at 579.

Reynolds clearly established that a State must make an

honest and good faith effort to construct legislative districts

as nearly of equal population as is practicable. However, the

Court did not establish any precise constitutional test as to

what constitutes "as nearly of equal population as is

practicable" or "political equality". Since Reynolds, the United

States Supreme Court developed a body of case law providing

guidance.

The Supreme Court told Florida that overall deviations of

25.65 % in the Florida Senate and 33.55% in the Florida House are
unconstitutional in light of Florida's failure to articulate

acceptable reasons for the deviation. Swann v. Adams, 385 U.S.

440, 17 L.Ed.2d 501, 87 S.Ct. 569 (1967). The Swann decision was

quickly followed by Kilgarlin v. Hill, 386 U.S. 120, 17 L.Ed.2d

771, 87 S.Ct. 820 (1967), where the Court declared unconsti-

tutional a 26.48% deviation in the Texas House of Representa-

tives. The Court next rejected as impermissible the 28.20% and

24.78% deviations in Indiana's State Senate and House districts.

Whitcomb v. Chavis, 403 U.S. 124, 29 L.Ed.2d 363, 91 S.Ct. 1858

(1971).






More recently, the outer limits of allowable variation or

deviation were suggested by the Court when, in a decision limited

to the complex facts of that case, a 16.4% variation was said by

the Court to "approach, but not exceed" the limits under which

equal protection would be satisfied. Mahan v. Howell, 410 U.S.

315, 35 L.Ed.2d 320, 93 S.Ct. 979 (1972), amended 411 U.S. 922,

36 L.Ed.2d 316, 93 S.Ct. 1475 (1973).


Two of the most significant

test, decided by the Court on June

Cummings, 412 U.S. 735, 37 L.Ed.2d

White v. Regester, 412 U.S. 755, 37

(1973). In Gaffney, the Court held

Connecticut's House districts and a

districts


cases refining the Reynolds

18, 1973, are Gaffney v.

298, 93 S.Ct. 2321 (1973) and

L.Ed.2d 314, 93 S.Ct. 2332

I that a 7.83% deviation in

I 1.81% deviation in the Senate


. failed to make out a prima facie
violation of the Equal Protection Clause
of the Fourteenth Amendment, whether
those deviations are considered alone or
in combination with the additional fact
that another plan could be conceived with
lower deviations among the State's
legislative districts. Put another way,
the allegations and proof of population
deviations among the districts fail in
size and quality to amount to an
invidious discrimination under the
Fourteenth Amendment which would entitle
appellees to relief, absent some
countervailing showing by the State.
412 U.S. at 741.








Significantly, the Court noted that-population deviations

among districts may be sufficiently large so as to require

justification but nonetheless be justifiable and legally

sustainable as was the 16.4% deviation in Mahan, supra.

Moreover, the Gaffney court went on to state:

It is now time to recognize, in the
context of.the eminently reasonable
approach of Reynolds v Sims, that minor
deviations from mathematical equality
among state legislative districts are
insufficient to make out a prima face
case of invidious discrimination under
the Fourteenth Amendment so as to require
justification by the State. (Emphasis
supplied) 412 U.S. at 745.

Immediately following Gaffney, the Court in White, supra,

in upholding a 9.9% deviation without requiring justification by

the State, held:

We did not hold in Swann v Adams, or
Kilgarlin v Hill, or later in Mahan v
Howell, supra, that any deviations from
absolute equality, however small, must
be justified to the satisfaction of the
judiciary to avoid invalidation under the
Equal Protection Clause. For the reasons
set out in Gaffney v Cummings, supra, we
do not consider relatively minor
population deviations among state
legislative districts to substantially
dilute the weight of individual votes in
the larger districts so as to deprive
individuals in these districts of fair
and effective representation. .








[w]e cannot glean an equal protection
violation from the single fact that two
legislative districts in Texas differ
from one another by as much as 9.9%,
when compared to the ideal district.
Very likely, larger differences between
districts would not be tolerable without
justification 'based on legitimate
considerations incident to the
effectuation of a rational state policy,'
Reynolds v Sims, but here we are
confident that appellees failed to carry
their burden of proof insofar as they
sought to establish a violation of the
Equal Protection Clause from population
variations alone.

We are unable to conclude from these
deviations alone that appellees satisfied
the threshold requirement of proving a
prima facie case of invidious discrim-
ination under the Equal Protection
Clause. (citations omitted) 412 U.S. at
763-4.

The Gaffney and White decisions have been characterized as

establishing a 10% de minimis rule which holds that an

apportionment plan with deviations under 10% is considered to be

of prima facie constitutional validity, in the context of

legislatively enacted apportionments, thus not requiring

justification by the state. See Connor v. Finch, 431 U.S. 407, 52
L.Ed.2d 465, 97 S.Ct. 1828 (1977).

The Attorney General submits that the 10% de minimis rule

is controlling in this case. The apportionment plan before this

Court contains a total deviation of .46% in the Florida House and






1.05% in the Florida Senate. These deviations are well under 10%

and in accordance with the above case law,- are de minimis and do

not require justification by the State. These deviations fail in

size and quality to amount to an invidious discrimination under

the Fourteenth Amendment and the plan including these deviations

should be considered to be of prima facie constitutional

validity.

Alternatively, should this Court elect to look beyond the

10% de minimis rule, the Attorney General submits that SJR 1E, as

required by Reynolds, supra, represents an honest and good faith

effort to construct districts in both houses of the Florida

Legislature, as nearly of equal population as practicable. As

reflected in the statement of the facts and the Exhibits attached

to the Petition (Exhibits A, B, C, D, E, and F) and the

Appendices 1-9, SJR 1E provides inter alia:

1. Population equality with de minimis deviations from

the ideal of .46% in the House and 1.05% in the Senate.

2. Single member House and Senate districts.

3. Greater access to the legislative process for racial

and language minorities as reflected in 3 Senate districts and 14

House districts with minority populations of 52% or higher.

4. Maintenance of political and geographical boundaries

where possible since only 23 counties are split by Senate

districts while 41 counties are split by House districts. (It is






difficult to judge how SJR 1E compares to the 1972 plan since the

1972 plan was multi-member and, consequently, there were less

district lines necessitating the splitting of counties.)

5. The Legislature attempted to preserve communities of

interest which resulted in a slightly larger deviation than could

otherwise have been achieved.

6. All districts are contiguous.

SJR 1E provides for "one person, one vote" (population

equality), single-member districts and minority access to the

political process while maintaining the integrity of county and

municipal lines where possible and providing contiguous

districts. Having accomplished all of this and a deviation of

only .46% in the House and 1.05% in the Senate, SJR 1E clearly

meets the Reynolds test.






POINT II

WHETHER SJR 1E APPORTIONS THE FLORIDA
LEGISLATURE INTO CONSECUTIVELY NUMBERED
DISTRICTS OF EITHER CONTIGUOUS, OVERLAP-
PING OR IDENTICAL TERRITORY.

Article III, 16(a), Fla.Const., provides that the

Legislature shall apportion the State:

.into not less than thirty nor more
than forty consecutively numbered
senatorial districts of either
contiguous, overlapping or identical
territory, and into not less than eighty
nor more than one hundred twenty
consecutively numbered representative
districts of either contiguous,
overlapping or identical territory.

Thus, as a minimum, the Legislature must pass a joint resolution

which designates districts of contiguous, overlapping or identi-
cal territory and which numbers such districts consecutively.


A contiguous district, as that term has been used in

legislative reapportionment, has been defined as "one in which a
person can go from any point within the district to any other

point without leaving the district." Comment, Reapportionment,

79 Harv.L.Rev. 1228 (1966).1 A three-judge federal district

court in Mader v. Crowell, 498 F.Supp. 226, 229 (M.D. Tenn.

1980), citing the Supreme Court of Michigan, accepted this

definition given the clarifying construction that contiguous:



1 This is consistent with the plain and ordinary meaning of the
word contiguous. See Webster's Seventh New Collegiate Dictionary
(1971) p. 180.






.does not mean in contact by land.
Certainly, so far as the islands are
concerned, they may be considered
contiguous, although separated by wide
reaches of navigable deep waters.
(Emphasis, the Court's)

See Board of Supervisors v. Blacker, 92 Mich. 638, 646, 52 N.W.

951, 953 (1892). The Mader court concluded that a district lacks

contiguity only when a part is isolated from the rest by the

territory of another district. "Contiguity is absent, then, only

when a portion of a district is separated from the remainder of

the district by the intervention of the territory of another

district." Mader at p.229.2

All districts in SJR 1E are constructed so that a person

can go from any point within the district to any other point

without leaving the district and that no portion of a district is

separated from the remainder of the district by the intervention

of another district, as evidenced by the affidavits of Robert

Kennedy and Christopher Shoemaker, attached to the Petition as

Exhibits D and E. Accordingly, all districts are contiguous as

defined in Mader, supra.



2 This definition is very similar to the language of Art. VII,
4, Fla.Const. (1885) which provided: "Where any Senatorial
District is composed of two or more counties, the counties of
which such district consists, shall not be entirely separated by
any county, belonging to another district." The Attorney General
submits that this Court should adopt the standard for contiguous
districts expressed in Mader.






In addition to the requirement that districts be of either

contiguous, overlapping or identical territory is the Art. III,

16(a) requirement that districts be consecutively numbered.

The consecutive numbering provision was not contained in the 1885

Florida Constitution and has not been specifically construed by

Florida courts. However, in addressing the 1972 Florida

reapportionment plan, which was subject to the newly adopted

consecutive numbering requirement of the 1968 Florida

Constitution, the Florida Supreme Court stated:

During its regular session in 1972, the
Legislature, by Senate Joint Resolution
Number 1305, apportioned the state into
forty consecutively numbered Senate
districts and one-hundred twenty
consecutively numbered House districts.
(Emphasis supplied).

Cardenas v. Smathers, 351 So.2d 21,21 (Fla. 1977). Also, when

the Florida Supreme Court initially approved the 1972

reapportionment plan in the case of In Re Apportionment Law

Appearing as Senate Joint Resolution Number 1305, 1972 Regular

Session, 263 So.2d 797 (Fla. 1972), the court concluded:

We now hold that Senate Joint
Resolution No. 1305, on its face, sets
forth an apportionment plan in accordance
with the Constitutions of Florida and of
the United States. 263 So.2d 797, 809.

While these two cases did not directly construe the

consecutive numbering language, they did hold that the 1972 plan

met the consecutive numbering requirement. This is significant

in that maps of the 1972 plan (attached Appendix 3), show that in






the House of Representatives the following districts do not

touch: 14 and 15; 32 and 33, 37 and 38; 52 and 53; 70 and 71; 75

and 76; 88 and 89; 91 and 92. In the Senate the following

districts do not touch: 9 and 10, 17 and 18.

In light of these two decisions, Petitioner submits that

as long as the numbers go from 1 to 40 in the Senate and 1 to 120

in the House, without missing numbers, the order of the numbers

or whether they touch sequentially does not matter as long as the

numbers are in an uninterrupted interval. As noted above, this
was the case in the 1972 plan. Consequently, SJR 1E which

numbers the Senate districts from 1 to 40 and the House districts

from 1 to 120 without missing any numbers (although the numbers
do not touch sequentially) does apportion the State into forty

consecutively numbered Senate Districts and one hundred twenty

consecutively numbered House districts as required by Art. III,

16(a), Fla.Const.

The above construction of the consecutive numbering

requirement is consistent with the common rule of constitutional

interpretation that courts give effect to the natural

significance of the words used in the order and grammatical
arrangement in which they have been placed. City of Jacksonville

v. Continental Can Co., 151 So. 488 (Fla. 1933); 10 Fla.Jur.2d,

Constitutional Law 38. In Art. III, 16(a), Fla.Const., the
word "contiguous" modifies the word territory and not the words

consecutively numbered. The word consecutive does not modify






or limit the word contiguous or territory. It modifies and

relates to "numbered" or the numbering of districts and not their

location. Consequently, district numbers do not have to be

consecutive and contiguous--only consecutive. Requiring district

numbers to be consecutive and contiguous distorts the

Constitution to read contiguously and consecutively numbered.

It is a general principle of statutory construction that

when the meaning of a statute is at all doubtful the law favors a

rational, sensible construction and courts are to avoid an

interpretation of a statute which would produce unreasonable or

absurd consequences. Wakulla County v. Davis, 395 So.2d 540

(Fla. 1981). If the word contiguous is construed to apply to the

numbering requirement, it would result in an unreasonable

consequence in that the Legislature would forever be precluded

from creating a district surrounded by another district because

it would then be impossible to comply with the contiguous

numbering requirement. This situation is illustrated by the 1982

proposed Congressional Plan SB 854, where District 4 is

completely surrounded by District 3, thus making it impossible

for District 4 to touch District 5. (Appendix 5) Consequently,

applying the rules of statutory construction, the word contiguous

should not be construed to modify the numbering requirement.


Moreover, from a public policy standpoint, a contiguous
numbering construction would accomplish little. It would not

avoid voter confusion but would tie the hands of the







Legislature.


Consecutive numbering simply requires that there be no

missing numbers thus assuring the proper distribution of even-

and odd-numbered districts. This would guarantee that some

Senators would be elected for terms of four years in the years

the numbers of which are multiples of four and that some senators

would be elected for terms of four years in the years the numbers

of which are not multiples of four, thus maintaining staggered

terms as required by Art. III, 15(a), Fla.Const.

Finally, there is no historical precedent for requiring
district numbers to touch. Florida's 20 judicial circuits do not

have touching numbers (Appendix 6) nor do Florida's current 15

Congressional districts (Districts 8 and 9, Appendix 4). The

numbering of districts is primarily for identification purposes

so that requiring numbers to be. contiguous serves no useful

purpose for voter identification.

In view of the above, district numbers do not need to be
consecutive and contiguous but merely consecutive. Accordingly,

SJR 1E, which numbers the Senate districts 1 through 40 and the

House districts from 1 through 120, apportions the State into

forty consecutively numbered Senate districts and one hundred

twenty consecutively numbered House districts as required by Art.
III, 16(a), Florida Constitution.






POINT III

WHETHER SJR 1E INVIDIOUSLY DISCRIMINATES
AGAINST ANY RACIAL OR LANGUAGE MINORITY
FOR THE PURPOSE OF MINIMIZING OR CANCEL-
LING THE VOTING STRENGTH OF SUCH MINORITY
IN VIOLATION OF THE FOURTEENTH OR FIFTEENTH
AMENDMENTS.

SJR 1E has been challenged in this case based upon an

alleged denial of equal protection. (See complaint of John M.

Diaz.) This challenge does not rest on lack of population

equality in legislative districts. Rather, it rests on an

alleged denial of minority access to the political process by

virtue of an alleged division of the hispanic population in Dade

County. The challenger proposes a "hispanic fair play district"

as an alternative to the present plan as drawn in Dade County.

First, the sole question to be considered in this

proceeding is the facial validity of SJR 1E. See In Re

Apportionment Law, Senate Joint Res. No. 1305, 263 So.2d 797

(Fla. 1972). This point was recently confirmed by this Court's

order of January 18, 1982. Consequently, any proposal for an

alternative plan containing a "hispanic fair play district" is a

challenge to the applicability of the plan and, as such, is not

properly before this Court and need not be addressed further.

Secondly, the Supreme Court pointed out in Gaffney v.

Cummings, 412 U.S. 735, 37 L.Ed.2d 298, 93 S.Ct. 2321 (1973),

that "state legislative districts may be equal or substantially

equal in population and still be vulnerable under the 14th






Amendment" if there is invidious discrimination. Id. at 751.

SJR 1E has a total population deviation of only 1.05% in the

Senate and .46% in the House -- well within the "under 10%"

category the Court considers to be of "prima facie constitutional

validity in the context of legislatively enacted reappor-

tionment." Connor v. Finch, 431 U.S. 407, 418 (1977). Further,

SJR 1E represents "an honest and good faith effort to construct

districts in both houses of the Florida Legislature as nearly of

equal population as practicable." Nevertheless, the question of

invidious discrimination from other sources remains to be

addressed.

The Supreme Court has evolved the "political access" test

for use in determining whether districting plans achieving

substantial population equality nevertheless invidiously

discriminate against minority groups. The test was first
elucidated in Whitcomb v. Chavis, 403 U.S. 124, 29 L.Ed.2d 363,

91 S.Ct. 1858 (1971), a suit attacking Indiana's state

legislative apportionment for its use of multi-member districts.

While not holding that multi-member districts were per se

invalid, the Court pointed out that the validity of any district
"may be subject to challenge where the circumstances of a

particular case may 'operate to minimize or cancel out the voting

strength of racial or political elements of the voting

population.'" Id. at 143. The Court will look to see whether the

plan was "conceived or operated as [a] purposeful device[] to

further racial discrimination". Id. at 149.






The "political access" test was discussed further in White

v. Regester, 412 U.S. 755, 37 L.Ed.2d 314, 93 S.Ct. 2332 (1973),

which involved a reapportionment plan for the Texas House of

Representatives. The Court held that to show invidious

discrimination plaintiffs had to produce evidence "to support

findings that the political processes leading to nomination and

election were not equally open to participation by the group in

question that its members had less opportunity than did other

residents in the district to participate in the political

processes and to elect Legislators of their choice." Id'. at 766.

Further, the Fifteenth Amendment was held by a plurality

of the Supreme Court in City of Mobile v. Bolden, 446 U.S. 55, 64

L.Ed.2d 47, 100 S.Ct. 1490 (1980), to prohibit only "purposefully

discriminatory denial or abridgment by government of the freedom

to vote 'on account of race, color, or previous condition of
servitude.'" Id. at 51. City of Mobile was interpreted by this

Court in Milton v. Smathers, 389 So.2d 978, 981 (1980), to

require that same standard for Fifteenth Amendment violations.

This standard has been held to mean that a showing of
discriminatory effect is insufficient to make out a violation of

these amendments; rather, the plan has to have been motivated by

the intent to discriminate.


Accordingly, only if there is purposeful discrimination
"can there be a violation of the Equal Protection Clause of the

Fourteenth Amendment." Village of Arlington Heights v.






Metropolitan Housing Development Corp., 429 U.S. 252, 50 L.Ed.2d

450, 97 S.Ct. 555 (1977). This principle applies to claims of
racial discrimination affecting voting just as it does to other

claims of racial discrimination. Washington v. Davis, 426 U.S.

229, 48 L.Ed.2d 597, 96 S.Ct. 2040 (1976). A plaintiff must

prove that the disputed apportionment plan was "conceived or
operated as [a] purposeful device[] to further racial

discrimination." Whitcomb v. Chavis, supra, at 149. The

plaintiff must prove that the disputed apportionment plan was

motivated by the intent to discriminate to establish a violation
of either the Fourteenth or Fifteenth Amendments. Mobile v.

Bolden, supra. Such proof must appear from evidence in the

record. McGowan v. State of Maryland, 366 U.S. 420, 6 L.Ed.2d
393, 81 S.Ct. 1101 (1961); In Re Apportionment Law, Senate Joint

Resolution No. 1305, 263 So.2d 797, 804 (1972).

The present record is totally without proof of purposeful

discrimination. In fact, the record is replete with evidence
demonstrating no purposeful discriminatory intent to divide the

hispanic population of Dade County, to wit: affirmative
provisions which increase the "opportunity for minority

participation in the political process" White, supra, at 766, in

Dade County and elsewhere.

For example, the plan provides for the use of single-
member districts in both Houses of the Legislature. While







the Court has consistently refused to mandate the use of

single-member districts in legislatively-drawn plans, Chapman v.

Meier, 420 U.S. 1, 15, 42 L.Ed.2d 766, 95 S.Ct. 751 (1975), it

required in that same case that absent "compelling necessity"

when Federal district courts were drawing the plans, single-

member districts be used. Id. at 17. The use of single-member

districts avoids the problems inherent in the use of multi-member

districts, i.e., lengthy ballots; difficulty of making an

intelligent choice among candidates; feeling that no specific

representative is responsible to the voters; and the problem of

possible overrepresentation of a district through bloc-voting of

its representatives.

Further, as noted in Point I above, there are two Senate
districts, both in Dade County, that include a hispanic

population of 55% or higher and one Senate district in Dade

County with a black population of 65%; there are seven House

districts with a black population of 52% or higher and seven
House districts, all in Dade County, with a hispanic population

of 58% or higher. Additionally, there are three additional

Senate districts and one additional House district where the

combined minority population is 50% or higher. Notably, District
112, which is challenged for its alleged dilution of hispanic

population, is 60% hispanic. (See Appendix 1) These districts

increase the opportunity of minorities to elect a representative






of their choice, even though nonexistence of representation

proportional to minority population has been held not invidiously

discriminatory. Whitcomb, supra, at 149. Neither does this
"affirmative gerrymandering" violate the Constitution. As the

court stated in Gaffney, supra:

.neither we nor the district courts
have a constitutional warrant to
invalidate a state plan, otherwise within
tolerable population limits, because it
undertakes, not to minimize or eliminate
the political strength of any group .
but to recognize it and, through
districting, provide a rough sort of
proportional representation in the
legislative halls of the State. 412 U.S.
754.

Further support is found for this affirmative action when one

considers that there are five counties in the State subject to

the Voting Rights Act, 42 U.S.C. 1973(b) (commonly referred to

as 5 of the Voting Rights Act), which requires a determination

that the plan at bar does not have the purpose or effect of
denying or abridging the right to vote of a racial or language

minority group. In United Jewish Organization v. Carey, 430 U.S.

144, 51 L.Ed.2d 229, 97 S.Ct. 996 (1977), certain members of a

white Jewish community sued because when the State of New York
constructed minority districts to achieve compliance with 5 of

the V.R.A., their own voting strength had allegedly been

unconstitutionally impaired. The Court said:

S. the Constitution does not prevent a
State subject to the Voting Rights Act
from deliberately creating or preserving
(minority) majorities in particular
districts in order to ensure that its
reapportionment plan complies with 5.
Id. at 161.







More importantly, the Court went on to say that:

S. .,Whether or not the plan was
authorized by or was in compliance
with 5 of the Voting Rights Act, New
York was free to do what it did as long
as it did not violate the Constitution,
particularly the Fourteenth and Fifteenth
Amendments; and we are convinced that
neither Amendment was infringed.

There is no doubt that .
the State deliberately used race in a
purposeful manner. But its plan
represented no racial slur or stigma with
respect to whites or any other race, and
we discern no discrimination violative of
the Fouteenth Amendment nor any abridg-
ment of the right to vote on account of
race within the meaning of the Fifteenth
Amendment. Id. at 165.

These two factors, that is, the use of single-member

districts and the creation of districts with substantial minority

populations, demonstrate that the plan at issue was not

"conceived or operated as [a] purposeful device [] to further

racial discrimination", Whitcomb v. Chavis, supra at 149, in

violation of the Fourteenth or Fifteenth Amendments.

Furthermore, there is no evidence in the record to support

a finding "that the political processes leading to nomination and

election were not equally open to participation by the group in

question that its members had less opportunity to

participate in the political processes and to elect legislators

of their choice." White, supra, at 766.







Absent a showing of invidious discrimination, petitioner

suggests that this Court's statement in In Re Apportionment Law,

Senate Joint Res. No. 1305, supra, is apropos.

Hence, this Court, in accordance with the
doctrine of separation of powers, will
not seek to substitute its judgment for
that of another coordinate branch of the
government, but will only measure acts
done with the yardstick of the
Constitution. The propriety and wisdom
of legislation are exclusively matters
for legislative determination. 263 So.2d
806.

Viewed in its entirety, it is apparent that the present

plan does not invidiously discriminate against any racial or

language minority for the purpose of minimizing or cancelling the

voting strength of such minority in violation of either the

Fourteenth or Fifteenth Amendments. Consequently, the challenger

Diaz has failed to meet his burden of proof and his claim should

be rejected.







POINT IV

WHETHER STATE SENATORS WHO WERE
ELECTED FROM ODD-NUMBERED DISTRICTS
IN THE 1980 GENERAL ELECTION WILL
SERVE TWO OR FOUR-YEAR TERMS.


Article III, 15, of the Constitution of the State of

Florida, sets forth terms and qualifications of Legislators.

Subsection (a) thereof provides:

(a) SENATORS. Senators shall be elected
for terms of four years, those from
odd-numbered districts in the years the
numbers of which are multiples of four
and those from even-numbered districts in
even-numbered years the numbers of which
are not multiples of four; except, at the
election next following a reapportion-
ment, some senators shall be elected for
terms of two years when necessary to
maintain staggered terms. (Emphasis
supplied)


By this language, the Florida Constitution establishes and

maintains a system of staggered four-year terms for Senators.

This language creates the following issue: Following

reapportionment does the Constitution of Florida or the United

States require the truncation of the four-year terms of State

Senators whose terms do not expire until two years after the

adoption of the decennial reapportionment? It is the position of

the Attorney General that neither of these documents as a general







proposition requires this result.3


While the Attorney General supports, on policy grounds, a

requirement that all Legislators in Florida run after this

reapportionment because of the growth in population in our State

and the obvious change in district lines and districts from

multi-member to single-member, I am constrained to conclude that

the law does not automatically require such a result. In some

instances, depending on circumstances in individual districts,

elections may be required in 1982 for some odd-numbered

districts.

As alleged in the Petition Concerning Senate Joint

Resolution lE filed on April 12, 1982, by the Attorney General,

this Court has jurisdiction to decide this important pendant

issue under Art. III, 16(c) and (d), Fla. Const., as




3Historically, Florida has permitted holdover Senators. In
1963, the reapportionment formula for Florida created a Senate of
43 members and a House of 112 representatives, but this figure
was not to be achieved until legislative elections in 1966, for
the 1967 Legislature. This was so because Legislators whose
offices would be abolished were allowed to serve out the terms to
which they had been elected in 1962. Therefore, in both the 1963
and 1965 sessions of the Legislature, those holdover Senators and
Representatives served in and were voting members of the Florida
Legislature. This resulted in 45 Senators and 125 House members
serving in the 1963 and 1965 sessions rather than the
reapportionment formula of 43 and 112. Morris, The Florida
Handbook, 1963-64, Peninsular Publishing Co., (1963), p. 86.







an issue relating to apportionment, and under Art V, 3(b)(7),

Fla. Const. In this original declaratory proceeding this Court

can declare the rights of the affected Senators, other potential

candidates, the Supervisor of Elections, and all voters as to

whether odd-numbered Senators are required by the Constitution to

have their four year terms truncated and stand for election in

1982. Thus, within its sound discretion, this Court may provide

relief by issuance of quo warrant under its "all writs"

jurisdiction or by issuance of declaratory relief on pendant
claims arising under Art. Ill, 16(c), Fla. Const. This

discretion should be exercised in this proceeding to prevent an

adverse impact on essential functions of government. Brown v.
Firestone, 382 So.2d 654 (Fla. 1980).

As such, this issue is not submitted to this Court under

the provisions of Art. III, 16(b), Fla. Const., i.e., as a

failure of the Legislature to adopt a joint resolution

apportioning the state. The undersigned views the issue of
whether all Senators have to stand for election in 1982 as not

indispensable for inclusion in a joint resolution of
apportionment. As previously submitted, in order to comply with

16(a) a joint resolution of apportionment must include only the
designation of House and Senate districts and their numbering.
(Upon failure of the Legislature to provide for these two
essential elements, there is no joint resolution as explained in

the Attorney General's brief of April 15, 1982.) Thus, whether







odd-numbered Senators may holdover in office and finish their

terms is not presented to this Court under the impasse provisions

of 16(b) and this Court does not sit in a legislative capacity

to decide this issue.


A. ANALYSIS OF FLORIDA CONSTITUTION

As quoted above, Art. III, 15(a), Florida Constitution
mandates a four year Senatorial term except:

at the election next following a
reapportionment, some senators shall be
elected for terms of two years when
necessary to maintain staggered terms.

It is well-settled in Florida that "a public officer has a
property right in his tenure of office, and cannot be deprived

thereof without due process of law." State ex rel. Landis v.

Tedder, 143 So. 148, 150 (Fla. 1932). A year earlier in State

ex rel Hatton v. Joughin, 138 So. 392 (Fla. 1931), this Court
first declared that the "right to exercise and enjoy office

S is a species of property which the law will protect and

will also redress if [one is] wrongly deprived of it[.]" Id. at

395. This case was most recently cited by this Court in State
ex rel Reynolds v. Roan, 213 So.2d 425 (Fla. 1968), wherein,

following adoption of a constitutional amendment allowing school

board members to appoint a Superintendent of Public Instruction

to serve the School Board of Collier County at their pleasure,
the board declared the office in that county to be vacant, though






the incumbent had time remaining on his term. In invalidating

this action, the Court recognized that the defendant's right to

exercise the duties of the office and enjoy the emoluments

thereof was a species of property which the law protects and

stated:

S. the sovereign power creating the
office--in this case, the people speaking
through the Constitution--can abolish it
at will, or the term of office may be
shortened, including that of the
incumbents, when this becomes necessary
But we think that an intention to
apply the shortened term of office .
to an incumbent, resulting in his ouster
from the office before the end of his
term, must be clearly expressed .
before it will be given that effect.. .
Whether this is such a "fundamental
change" in the characteristics of the
office as would have justified the
cutting short of the terms of the
incumbents need not be decided since, as
noted, in the absence of clear and
unequivocal expression to this effect, we
cannot assume that it was intended to
apply to and give the Board the right to
cut short the terms of the incumbents.
(Emphasis supplied) Id. at 428.

The exception or proviso of 15(a) that "at the election

next following a reapportionment, some Senators shall be elected

for terms of two years when necessary to maintain staggered

terms" is not applicable here. It is not necessary that

odd-numbered Senators run for two year terms in 1982 to maintain

staggered terms. Staggered terms will be effectuated by these

Senators serving out the four year term for which they were
elected.




V







Thus, the proviso of 15(a) is not involved.4


Nor can the proviso be interpreted as declaratory of a

requirement or intention that all Senators stand for re-election

following decennial reapportionment with some having to run for

two year terms. Such exceptions or provisos to an express
constitutional provision providing four year terms should be

construed strictly, and limited to objects fairly within its

terms. In Re Advisory Opinion to Governor, 313 So.2d 717 (Fla.

1975). The office of a proviso in a statute is not to enlarge or

extend the act of which section it is a part but is rather to be

a limitation or a restraint upon the language which the

Legislature has employed. Farrey v. Bettendorf, 96 So.2d 889

(Fla. 1957).



4The proviso of 15(a) "when necessary to maintain staggered
terms is given meaning and effect in the following instances:
(1) The Legislature may set membership of the Senate from thirty
to forty members per Art. III, 16(a), Fla. Const. If set at
thirty in one reapportionment and raised, e.&., to forty in the
next, then one-half of the ten new members would have to be
elected to terms of two years and one-half to terms of four years
to maintain staggered terms of the additional ten members; (2) If
after reapportionment a court should invalidate the apportionment
plan in whole or in part and require Senators to run again under
a court imposed plan, as happened in 1967, then some Senators may
have to be elected for two year terms in order to maintain
staggered terms; (3) When changes in Senate districts are so
complete so as to otherwise violate the Constitution then any
such Senator in an odd-numbered district may be required to run
for a two year term in 1982; (4) Should any Senator previously
elected from an even-numbered district be switched in the






The fundamental object in construing a constitutional

provision is to ascertain and give effect to the intent of the

framers and adopters and constitutional provisions must be

interpreted to fulfill this intention rather than to defeat it.
State ex rel. West v. Gray, 74 So.2d 114 (Fla. 1954). In

construing particular constitutional provisions, the object

sought to be accomplished and the evils sought to be remedied

should be kept in mind by the courts, and the provisions should
be so interpreted as to accomplish, rather than to defeat such

objects. State ex rel. Dade County v. Dickinson, 230 So.2d 130

(Fla. 1969). Additionally, words in a Constitution should be

construed in their plain, ordinary, and commonly accepted

meaning. Carlton v. Mathews, 103 Fla. 301, 137 So. 815 (1931).


(continued from previous page) reapportionment plan to an
odd-numbered district in 1982, then such Senator must run because
his four year term expires in 1982. Because 15(a) requires
odd-numbered Senators to run in even-numbered years the numbers
of which are multiples of four (1984), such election in 1982
would be for a two year term in order to maintain staggered
terms; (5) If an odd-numbered incumbent Senator no longer resides
in the new district within the meaning of Art. III, 15(c) and
Art. X, 3, Fla. Const., then a vacancy occurs requiring an
election in 1982 pursuant to Art. III, 15(d), Fla. Const.
Because 15(a) requires odd-numbered Senators to run in
even-numbered years the numbers of which are multiples of four
(1984), such election in 1982 would be for a two year term in
order to maintain staggered terms; (6) Where two odd-numbered
incumbent Senators reside in a newly drawn odd-numbered district,
then such Senators must run for the single seat available for a
term of two years in order to maintain staggered terms and comply
with the 15(a) mandate that odd-numbered Senators run in
even-numbered years the numbers of which are multiples of four
(1984). See Ferrell v. .State of Oklahoma ex rel. Hall, 339
F.Supp. 73, 81 (W.D. Okla. 1972), aff'd, 92 S.Ct. 2045 (1972).






In view of these principles it seems clear that 15(a)

requires four year terms for Senators unless it is necessary to

truncate a term in order to maintain staggered terms which is not
the case in 1982. Thus, the plain language of 15(a) requires a

four year term for Senators and nothing pertinent therein, or

elsewhere in the Florida Constitution, generally mandates that

all odd-numbered senatorial terms be truncated in 1982.

By creating a system of staggered terms the intent of 15

was obviously to provide for a continuing, experienced Senate

with less turnover than the House. This is also evidenced by the

four year Senatorial term rather than the two year term for House

members. This Court must give effect to the intent of the

framers who provided a four year term and allowed it to be

truncated only in a manner not relevant here since it is not

necessary to truncate terms in 1982 in order to maintain

staggered terms.

Moreover, the constitutional history of 15(a) suggests
that the Florida Constitution Revision Commission of 1965-1967

(CRC) had before it for consideration the question of carry-

over or holdover Senators. See letter to Representative Emerson
Allsworth, Chairman, Legislative Committee CRC from L.K. Ireland,

Jr., dated January 17, 1966: Florida State Archives, RG 005,

Series 720, Box 5 (certified copy attached as Appendix 9). This






letter proposed language for the Constitution that would have

"the terms of all members expire at the general election

following the year in which reapportionment is to be

accomplished."5 Such language was never adopted.

It would have been a simple matter for the CRC to have

provided a blanket exception after reapportionment to the four

year term requirement of 15(a) by stating such, or the CRC

could have provided that "one-half of the Senate shall be elected

for terms of two years when necessary to maintain terms."

Instead, the CRC provided for four year terms with only one

exception not relevant here.


Moreover, to construe 15 to require incumbent Senators
to run again would in effect mean two successive elections for

two year terms for odd-numbered Senators. Thus, the provisions

of 15 providing for an election for terms of two years to

maintain staggered terms "at the election next following a

reapportionment" would be transformed to automatically in all

instances require elections both following reapportionment and

preceding reapportionment. These same Senators would have to




5lreland's proposal is substantially similar to that adopted in
Illinois wherein Senators are divided into three groups with all
terms expiring after reapportionment and the burden of two year
terms equally shared among the three groups. See Art. IV, 1 2,
Illinois Constitution.






run again in 1984 three elections in four years a result

neither suggested by the terms of 15 nor the intent of 15 in

creating four year staggered terms to ensure continuity and

experience in government. 6

Therefore, as a general proposition, 15(a) requires four

year terms for Senators except when necessary to maintain

staggered terms an exception not applicable here.


B. ANALYSIS OF CASE LAW FROM
OTHER JURISDICTIONS

The above construction of Florida's Constitution is

consistent with jurisdictions which have held that incumbent

Senators can holdover after a reapportionment. These juris-

dictions, which constitute the majority, have rejected

challenges to holdover Senators based on alleged denial of equal

protection, alleged invidious discrimination, or alleged dilution

or disenfranchisement of the right to vote.

The case most directly similar to the issue sub judice is
Legislature of State of California v. Reinecke, 516 P.2d 6 (Cal.

1973). In Reinecke plaintiffs alleged denial of equal protection

by invidious discrimination where: (1) some electors moved from

one district to another were able to vote in 1972 and again in

1974; (2) while other electors remained in their district and


6This problem would shift to even-numbered Senators in 1992 and
alternate thereafter every 10 years.







voted once during the normal four year interval; and (3) yet

other electors from even-numbered districts who last voted in

1970 were moved to odd-numbered districts and would not vote

again until 1976.

The court rejected claims of inequalities among these

three groups of voters as:

S. the inevitable byproduct of
reapportioning a legislative body whose
members are elected for staggered
four-year terms. Since these
inequalities flow directly from
provisions of the California
Constitution, we are not free to obviate
them unless they constitute invidious
discrimination violative of the equal
protection clause of the fourteenth
amendment to the Constitution of the
United States. 516 P.2d 12.

The court held that the state may rationally consider

stability and continuity in the Senate as a desirable goal which

is achieved by providing for four year staggered terms.

.[t]o obviate the inequality would
substantially interfere with the orderly
operation of the four-year staggered
terms system after every reapportionment.
We conclude that adherence to staggered
terms following reapportionment involved
no invidious discrimination. Id. at 12.

Notably, Reinecke involved a court devised reapportionment

plan which is generally held to a stricter standard. See

Chapman, supra, Connor, supra. The court stressed the

temporariness of the disenfranchisement (two years), reiterating

that it could be even less than that experienced by residents






who move into a Senate district or who attain voting age shortly

after a senatorial election (up to four years). See also,

Griswold v. County of San Diego, 32 Cal.App.3d 56, 107 Cal. Rptr.

845 (Ct.App. 4th Dist. 1973), wherein the court sustained the

validity of a reapportionment ordinance that shifted voters who

then could not vote for an additional two years due to holdover

Commissioners previously elected for four year staggered terms.


Similarly, in Ferrell v. State of Oklahoma ex rel. Hall,

339 F.Supp. 73 (W.D. Okla. 1972), aff'd, 92 S.Ct. 2045 (1972),

the plaintiffs challenged Oklahoma's 1971 Senate Apportionment

Act. They claimed that, because their opportunity to vote for a

State Senator was postponed for two years due to their shift into

a holdover Senator's district, they had been deprived of the

right to vote. Plaintiffs also claimed injury in that they were

required to be represented for two years by a Senator in whose

election they did not participate. The court ruled that

plaintiffs had not been deprived of the right to vote or

otherwise injured:

During the two year transitional
period in changing [from one
apportionment plan to the next], such
situations [as the one complained of] are
unavoidable if four year overlapping
terms are to be provided as required by
the State Constitution--and to do so does
not offend the Equal Protection Clause of
the Fourteenth Amendment.. .







It is impossible, where Senate.District
boundaries are changed, to avoid having
some voters represented by a Senator for
whom they had no opportunity to support
or oppose. We observe, in passing, that
this also happens with regard to new
registrants who reach the age of 18 years
shortly after an election and to people
moving from one area to another. .
339 F.Supp. 82.


Allowing voters to be represented by a holdover Senator in

whose election they did not participate simply acknowledges the

practical realities of representation. The holdover Senator must

be vigilant to serve the interests of all the people in his new

district, even those who did not participate in the last

election, because the Senator's tenure depends upon the new

district-wide electorate. In fact, the Senator is the

representative of all the new electorate and not just the old

electorate remaining in the new district.


In Anggelis v. Land, 371 S.W.2d 857 (Ct.App. Ky. 1963),

Kentucky's redistricting plan created one Senatorial district

with the same number but otherwise completely different in

geography and populace than the former district. The court held

that the incumbent transferred therein could nevertheless serve

out his term.

Although a Senator is required by
Section 32 of the Kentucky Constitution
to be a resident of the district from
which he is elected, once he is elected
he represents generally all the people of







the state and specifically all the people
of his district as it exists during his
tenure in office. Certainly no one would
suggest that a Senator represents only
those persons who voted for him. The fact
that the persons who are represented by
the Senator from the Twelfth District are
no longer the ones who elected him
indicates there is a hiatus following a
redistricting of the state. [T]his
situation is comparable to that which
results when persons move from one
district to another. 371 S.W.2d 859.

The latest decision regarding the disenfranchisement

objection to allowing holdover Senators to complete their terms

is Mader v. Crowell, 498 F.Supp. 226 (M.D. Tenn. 1980). A

Tennessee reapportionment plan was challenged partially on the

basis that some voters for the State Senate had been moved from

even to odd-numbered districts so that under a staggered election

plan they would not vote for a Senator for two years beyond when

they would have done so in their former districts. The court

found the plaintiffs' claim to "lack constitutional magnitude,"

pointing out:

Shifts from odd-numbered to even-numbered
districts and vice versa are an unavoid-
able consequence of the reapportionment
ordered by this court.

Moreover, the deprivation suffered is de
minimis at most and would not
justify the massive intrusion into the
state's political machinery urged by
plaintiffs (requiring all state senators
to stand for re-election). The
disenfranchisement is temporary in nature
and is no different from that experienced
by "new registrants who reach the age of
18 years shortly after an election and
[by] people moving from one area to







another." Furthermore, the court
believes that politically sensitive
senators will seek to represent
effectively those shifted voters who
likely will be part of their
constituencies in the 1982 election.
(Emphasis supplied) Id. at 231.

Two decisions from the State of Kansas express another

underlying theme of many reapportionment cases. The case of

Farrelly v. Cole, 56 P. 492 (Kan. 1899), involved an attempt to

unseat the Legislature who wrote the new apportionment and to

invalidate any subsequent legislation. The plaintiffs'

contention was that the new apportionment terminated the

legislature existing prior to the apportionment. In ruling

against the plaintiffs, the court held:

The matter of apportionment is only a
provision for future elections and is not
designed to affect the title to office,
or the tenure of the members making the
apportionment. .(Emphasis supplied)
56 P. 501.

Further, the Farrelly court pointed out that members of a

State Legislature were constitutional officers with fixed terms

of office and were entitled to hold their respective offices for

the constitutional period they were elected. The apportionment

case of Harris v. Shanahan, 387 P.2d 771 (Kan. 1963), followed

this reasoning in deciding a similar issue:






[W]hen a member of the legislature is
duly and regularly elected from a
legislative district then created by
law he is entitled to exercise the
legislative powers of his office during
the term to which he is elected.
(Emphasis supplied) Id. at 796.


Both these cases indicate that if a Legislator is elected

validly from a then-legal district, he is entitled to fulfill his

term of office no matter how the intervening,apportionment

changes the district.

The Supreme Court of Delaware in Twilley v. Stabler, 290

A.2d 636 (Del. 1972), concurred with the above position when it

stated:

We are aware of no decision which
requires a State to cast a validly
elected official out of office prior to
the expiration of his term, in order to
give the residents of the revised
district the opportunity to elect someone
else immediately after a reapportion-
ment. (Emphasis by the Court)
Id. at 638.

It is argued that the most significant goal of districting

and reapportionment is that each elector have an equal voice in

choosing Legislators, and that this goal is violated by allowing

holdover Senators. This issue was addressed in Marston v. Kline,

301 A.2d 393 (Pa. 1973), wherein plaintiffs contended that some

electors were being allowed a greater voice in choosing their






Legislators, because they voted for a Senator once in 1972 and

again in 1973 as a result of being moved from an odd to an

even-numbered senatorial district by redistricting. The court

rejected this argument:

The plaintiffs argue that .somehow
their vote will be "diluted". We fail to
comprehend the plaintiffs' connotation of
the word dilution. As we read the cases,
dilution may result where the electors'
vote arithmetically is less significant,
and their representative is less
effective in the Legislature because
other representatives, elected by fewer
people, have the same voting power in the
legislative body. (Emphasis
supplied). Id. at 398.

This approach was also followed in New Democratic

Coalition v. Austin, 200 N.W.2d 749 (Ct.App. Mich. 1972), wherein

the issue was presented:

Does the Fourteenth Amendment require
that state senators elected under an
apportionment plan that meets current
constitutional standards stand for
re-election at the first primary and
general elections following the federal
decennial census where to do so would
require shortening the terms of the
incumbent senators by two years?
(Emphasis supplied) Id. at 752.

The court, in answering in the negative, relied on the

Supreme Court's expression of concern that one citizen's vote

equals any other's and stated:

Considering the present case, citizens'
votes were equal when they last voted for
state senators in 1970 under the [former
apportionment] plan and they will be
equal when they next vote for state
senators in 1974 under the [new] plan.
Id. at 754.






In Carr v. Brazoria County, Texas, 341 F.Supp. 155 (S.D.

Texas 1972), aff'd, 468 F.2d 950 (5th Cir..1972), the court

sustained the validity of a county reapportionment plan which

shifted 18,130 persons to one precinct (68% of persons in new

precinct) and shifted 11,748 persons to another precinct (42% of

persons in new precinct). The county operated under staggered

terms so that the newly transferred persons who otherwise would

have been entitled to vote in 1972 had to wait until 1974 to

vote. The court found no federal constitutional deprivation by

the two year postponement of the right to vote of the transferred

persons.

However, it is generally held that courts have complete

jurisdiction to truncate Senatorial terms and order new elections

immediately after finding that State Senators were elected under

an unconstitutional apportionment plan. Mann v. Davis, 238

F.Supp. 458 (E.D. Va. 1964), aff'd, 379 U.S. 694, 85 S.Ct. 713,
13 L.Ed.2d 698 (1965); Sims v. Amos, 336 F.Supp. 924, 940 (M.D.

Ala. 1972); Butcher v. Bloom, 420 Pa. 305, 216 A.2d. 457, 459

(1966); and Chavis v. Whitcomb, 307 F.Supp. 1362 (S.D. Ind.

1969), rev'd on other grounds, 403 U.S. 124, 29 L.Ed.2d 363, 91

S.Ct. 1858 (1971). This principle and these cases are not
relevant here because Florida's 1972 apportionment plan was

valid, In re Apportionment Law, Senate Joint Resolution No. 1305,

supra, and Senators elected thereunder were not elected from

malapportioned districts. Reynolds v. Sims, supra, 377 U.S.
583-584.






Finally, some jurisdictions recognize the ability of the

apportioning body to truncate Senatorial terms when necessary to

comply with state constitutions or in the exercise of discretion

by the apportioning body in pursuit of some other state

objective. State v. Laxalt, 441 P.2d 687 (Nev. 1968) (state

legislature has power to truncate Senatorial terms to comply with

state constitutional provision requiring staggered terms), State

v. Hinkle, 13 P.2d 42 (Wash. 1932) (initiative measure adopted by

people and having force of law could reduce term of Senators in

order to maintain staggered system of expiring terms).7

In Groh v. Egan, 526 P.2d 863 (Alaska 1974) the court

sustained the apportionment plan promulgated by the Governor even
though the plan truncated certain Senatorial terms. Previously,

one Senatorial district represented by eight Senators was

transformed to six separate Senatorial districts. The four
Senators whose terms were to extend two years beyond

reapportionment were required to run again immediately
thereafter. The court sustained the Governor's exercise of




7Similarly, in Florida, incumbent Senators may be forced to run
even though two years may be remaining in a term, when district
lines are changed by reapportionment and the incumbent no longer
resides in the new district. Art. III, 15(c) and Art. X, 3,
Fla. Const., may deem a vacancy to have occurred thus requiring
an election pursuant to Art. III, 15(b), Fla. Const. (See
Footnote 4, paragraph [5], p. 35, concerning whether a two year
term is required for such election.)






discretion in ordering the terms truncated because of the fact

that the district rom which the four holdover Senators were

elected no longer existed and the new districts have vastly

changed boundaries.

In sustaining the exercise of the Governor's discretion

under Alaska law to truncate the Senators' terms, the court noted

that had it been within its discretion to decide whether the

incumbent Senators.could holdover, it "might well be persuaded"

to allow the four Senators to continue their terms based on the

rationale of Reinecke, supra. Groh appears to be not relevant

here because the Florida Legislature did not exercise any

discretion it may have had to truncate incumbent Senators' terms.

In summary, 15(a) mandates four year Senatorial terms

which may be truncated when necessary to maintain staggered

terms. Florida's incumbent Senators can serve their full four

year terms and still maintain the system of staggered terms

provided in 15(a). Consequently, it is unnecessary to

automatically truncate Senatorial terms under the Florida

Constitution. Generally, neither the equal protection clause nor

the right to vote are violated by incumbent Senators being

permitted to holdover. Moreover, since Florida's incumbent

Senators were elected under a valid apportionment plan a court's

authority to truncate Senatorial terms of Senators elected under

an unconstitutional apportionment plan is not invoked in the case

at bar. Nevertheless, in an egregious situation, where upon






proper pleading and proof the apportionment plan is shown to

cause such fundamental changes that result in an invidious

discrimination or denial of equal protection or the right to vote

in any or all of the districts, then the court may truncate the

terms of the Senators in any such districts.8

CONCLUSION

SJER E constitutes an honest and good faith effort to

construct districts, in both houses of Florida' Legislature, as

nearly of equal population as is practicable and therefore

apportions the Florida Legislature in accordance with the equal

protection clause of the Fourteenth Amendment. It apportions the

Florida Legislature into consecutively numbered districts of

either contiguous, overlapping, or identical territory pursuant

to Art. III, 16(a), Fla. Const. SJR 1E does not invidiously

discriminate against any racial or language minority for the

purpose of minimizing or cancelling the voting strength of such
minority. To the contrary, it represents an affirmative effort

to maximize the opportunity for minority participation in the

political processes of Florida. Finally, incumbent Senators who

were elected to four year terms from odd-numbered districts in

1980 are not automatically prevented from serving out the

remainder of their terms by virtue of reapportionment.



8But see, Anggelis v. Land, supra, Farrelly v. Cole, supra, and
Harris v. Shanahan, supra.






Accordingly, the Attorney General respectfully submits

that this Court should enter judgment determining SJR 1E to be

valid and binding upon all citizens of the State pursuant to Art.

III, 16(d), Fla. Const. Additionally, the Attorney General

respectfully requests that this Court declare whether incumbent

Senators may complete their terms of office after

reapportionment.


Respectfully submitted,

JIM SMITH
Attorney General


KENDRICK TUCKER
Deputy Attorney General

MITCHELL D. FRANKS
GERALD B. CURINGTON
Assistant Attorneys General

DEPARTMENT OF LEGAL AFFAIRS
The Capitol, Suite 1501
Tallahassee, Florida 32301
(904) 488-9935

ATTORNEYS FOR PETITIONER

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the
foregoing Initial Brief in Support of Senate Joint Resolution 1 E
Regarding Apportionment of the Florida Legislature has been
served by hand delivery on THOMAS W. McALILEY, The Florida
Senate, Tallahassee, Florida 32301; BARRY RICHARD, 101 East
College Avenue, Tallahassee, Florida 32301; TOM MOORE, Common
Cause, 222 West Pensacola Street, Tallahassee, Florida 32301; and
by U.S. Mail on JOHN M.,DIAZ, 70 Tamiami Boulevard, Miami,
Florida 33144, this 7 day of April, 1982.



KENDRICK TUCKER