Two Court Decisions Will Discourage Challenges, Confuse Voters

Apr 10, 2016 by

The Florida Supreme Court failed twice last week to do what was in the best interest of Floridians.

Coincidentally, both decisions involved constitutional amendments—one by putting a deceptive amendment on the ballot and the other by holding the Florida Legislature accountable for ignoring a ballot measure that passed. Both were decided on 4-3 splits.

Let’s start with the high court’s decision to deny plaintiffs who prevailed in challenges to congressional and Florida Senate redistricting the ability to recoup legal fees from the state.

In 2010, Florida voters overwhelmingly supported two “Fair District” constitutional amendments with 63 percent of the vote. Voters wanted the Legislature to stop gerrymandering legislative and congressional districts to unfairly benefit one party or incumbents. Little changed in the following redistricting process.

The only way to hold those drawing the maps accountable was through the courts—a difficult, costly and time-consuming endeavor.

A coalition of voter rights groups—led by the League of Women Voters—became the plaintiff in court challenges to both the congressional and Florida Senate redistricting maps. The Fair Districts litigation—spanning four years—included discovery, depositions, trials, appeals, failed special sessions and ultimately Supreme Court rulings.

The lower court threw out the Legislature’s congressional map after finding that Republican lawmakers had colluded with political operatives to produce districts that favored their party. The state Supreme Court also sided with voter rights groups in a strong 5-2 decision rebuking the Legislature and approving the new congressional maps.

The legal costs to defend the Legislature have topped $8 million. Other expenses including special session costs bring the total redistricting tab to $11 million. Taxpayers are expected to foot the bill.

The plaintiffs petitioned the court to have their legal fees reimbursed.

Justice Barbara Pariente argued that the court should apply the private attorney general exception, which allows private parties to collect legal fees in public-interest lawsuits when the government chooses not to litigate.

The court didn’t agree and denied the plaintiffs’ request for legal fees on a 4-3 split.

In her dissent Justice Pariente—joined by Justices Peggy Quince and James Perry—stressed that it couldn’t be overstated how important the efforts of the plaintiffs were in forcing the Legislature to comply with the state Constitution.

This decision will surely have the chilling effect on future court challenges that those who violated the Constitution were counting on.

The other disappointing Florida Supreme Court ruling involves ballot access for a utility-backed constitutional amendment disguised as a consumer-friendly, pro-solar effort.

Contrary to its name, Consumers for Smart Solar has received 95 contributions totaling $7.5 million, with very few coming from consumers. According to its latest report filed with the Division of Elections, all but 12 of the contributions—totaling $405—came from power companies or political action committees (PACs).

This was a devious ploy to stop the true pro-solar amendment sponsored by Floridians for Solar Choice. The solar choice initiative failed to collect the 683,149 petition signatures needed in time to make the 2016 ballot so they are now shooting for 2018.

The utility-backed, anti-consumer, protectionist amendment is moving forward. The language is carefully crafted to appear pro-solar and pro-consumer. It is neither. It actually hurts the efforts for true consumer solar choice.

The amendment is so convoluted that solar enthusiasts are asking which of the two competing amendments is the pro-solar one.

Florida newspapers have run numerous articles attempting to explain the differences in the solar amendments and exposing who is behind each.

Readers are still confused. Comments at the end of one article illustrate the frustration.

One reader asked, “Can you please just tell us which one will encourage the installation of more solar panels. … People should be able to install solar panels and share any excess energy with their neighbors.” Another asked, “What do I vote for if I do not want Utilities to tell me who to hire?”

The Smart Solar amendment runs counter to the wishes of both of these individuals but they couldn’t tell.

The Florida Supreme Court has the ability to prevent confusing constitutional amendments from reaching the voters. In fact, the court is required to review proposed amendments to determine if the language is misleading.

This one should have been a no-brainer. It was clearly intended to trick voters and prevent the solar expansion many will mistakenly believe it affords. Incredibly, four of the seven justices didn’t see it that way. In a logic-defying 4-3 decision, the court allowed the deceptive amendment to appear on the November ballot.

Why bother having them review it?

Paula Dockery is a syndicated columnist who served in the Florida Legislature for 16 years as a Republican from Lakeland. She can be reached at PBDockery@gmail.com.



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