Sen. Alan Hays says 'Legislature' didn't file lawsuit to fight redistricting amendment

How the Legislature decides to redraw state and congressional legislative districts in 2012 will be one of the bigger political stories of the coming year. So at PolitiFact Florida, we think it's important to stay on top of the claims coming out of the redistricting discussion.

Florida Sen. Alan Hays, an Umatilla Republican, made several claims that we thought worth checking to clarify that debate. They all come from the same exchange with a voter during a July 13, 2011 public hearing at The Villages, a mainly conservative retirement community in Central Florida.

"Some of you people had voted to tax or to spend our taxes against the amendments that were passed by 63 percent of the vote," the voter said to a group of legislators, including Hays. "I wonder if you, Sen. Hays, since I'm in your district, did you vote?"

"Did I vote for what?" Hays asked.

"....These taxes being paid for the suit against the amendments?" the man asked.

The amendments the man was referring to were Amendments 5 and 6, which were approved by voters in 2010. The amendments were sold by supporters as a way to keep the politics out of redrawing legislative boundaries. But two of Florida's minority members of Congress -- Democrat Corrine Brown and Republican Mario Diaz-Balart -- are seeking to overturn Amendment 6 (which relates to congressional redistricting) arguing that the amendment will negatively affect minority representation.

"No I did not vote to spend money to fight that lawsuit," Hays said later in response to the man. "The disappointing part of this whole thing, folks, is the misinformation that is out there. The Florida Legislature has not filed a lawsuit to fight Amendments 5 and 6. The Amendment 6 lawsuit was filed by one Republican congressman and one Democratic congresswoman. The Florida House chose to go, and what's the term? An intervenor? ... in seeking clarification. The Florida House intervened. But your tax dollars are not being used to sue you, the people who voted the 63 percent. Believe me. I don't know where you got your information but it's incorrect. So no I did not vote to waste that money."

In one item, we checked Hays' assertion that he "did not vote to spend money to fight that lawsuit." In another, we checked Hays' statement that tax dollars are not being used to fight the lawsuit. In this fact-check, we're seeing if Hays is right to say that "the Florida Legislature has not filed a lawsuit to fight Amendments 5 and 6."

As we noted, the amendments were crafted as a way to eliminate gerrymandering and keep elected officials from drawing districts to their benefit. Amendment 5 deals with state legislative districts, and Amendment 6 covers congressional districts. The amendments were approved by the required 60 percent of voters during the Nov. 2, 2010, election. Here are their ballot summaries:

Amendment 5 — Legislative districts or districting plans may not be drawn to favor or disfavor an incumbent or political party. Districts shall not be drawn to deny racial or language minorities the equal opportunity to participate in the political process and elect representatives of their choice. Districts must be contiguous. Unless otherwise required, districts must be compact, as equal in population as feasible, and where feasible must make use of existing city, county and geographical boundaries.

Amendment 6 — Congressional districts or districting plans may not be drawn to favor or disfavor an incumbent or political party. Districts shall not be drawn to deny racial or language minorities the equal opportunity to participate in the political process and elect representatives of their choice. Districts must be contiguous. Unless otherwise required, districts must be compact, as equal in population as feasible, and where feasible must make use of existing city, county and geographical boundaries.

The day after Florida voters passed both amendments, Brown and Diaz-Balart filed a lawsuit challenging Amendment 6. Brown, who is black and Diaz-Balart who is Hispanic, argued that Amendment 6 would reverse efforts to help minorities -- such as themselves -- get elected to Congress. The lawsuit did not challenge Amendment 5 because that dealt only with seats in the state Legislature while Amendment 6 relates to congressional boundaries.

Records in U.S. District Court show that on Jan. 14, 2011, the Florida House, represented by the GrayRobinson law firm, filed an unopposed motion to intervene as a plaintiff. On the same day, the House filed a complaint asking that Amendment 6 be declared unconstitutional. On March 17, the court granted the House's motion to become an intervenor. The case is still pending in U.S. District Court.

The Senate has not joined the lawsuit, and Senate President Mike Haridopolos' Chief of Staff Craig Meyer told us July 15 the Senate has no intention of trying to join the lawsuit. "The voters spoke; we want to respect the voters," Haridopolos said in a Florida Times-Union article in February.

In other words, Brown and Diaz-Balart were the original plaintiffs and the Florida House was added on as an additional "plaintiff intervenor" as written on court documents. The Senate isn't a party.

What's important for this fact-check is to know that a plaintiff intervenor is an actual plaintiff. Just like an original plaintiff, in its role as the plaintiff intervenor the Florida House has lawyers and files motions. The two members of Congress and the Florida House are now on the same side of the legal fight in court against the defendant, the Florida Secretary of State (the state agency is the defendant because it is the agency implementing the amendments).

"Because Amendment 6 was enacted wholly outside of the state legislative process and imposes requirements that go beyond simply regulating the 'manner' of congressional elections the Court should declare that it is invalid and grant judgment in plaintiffs' favor," attorneys for the Brown, Diaz-Balart and the Florida House wrote in a April 25 court motion.

We sent Hays' claim to a few law professors in Florida to ask if Hays was right to state that the Legislature didn't file a lawsuit to fight the amendments. We also asked if his characterization of being an intervenor in this instance was simply seeking "clarification." We interviewed by e-mail Bob Jarvis, at Nova Southeastern University; Michael Froomkin, at the University of Miami and Joe Little, at the University of Florida.

Hays scores points here in a purely technical way because the House wasn't the original filer of the lawsuit and technically intervening isn't the same as being the original filer.

But Hays' comments are disingenuous, Jarvis said.

"The lawsuit was not filed by the Legislature, but the Legislature is spending taxpayer dollars on a court fight whose goal is to have the amendments declared invalid. ... The plaintiff controls the lawsuit; the intervenor comes along for the ride and has much less say in how the case proceeds. So tactically, you usually want to be the plaintiff."

Here, it does not make much difference, because the plaintiff and the intervenor both want the amendment declared unconstitutional, Jarvis wrote.

Hays' use of the word "clarification" is also misleading, Jarvis said, because "there is nothing for the court to clarify with respect to the amendments -- they either are constitutional or they are not. A clarification would involve, for example, a question regarding how the amendments are to be operationally implemented."

Little, who emphasized that he hadn't looked at the court filings and was speaking in general, wrote that while the difference between filing a lawsuit and intervening on the side of the plaintiff is a factual distinction, "On the merits the distinction would be seen by most people as 'without a difference.'"

In most cases the difference between the original filer and the intervenor is "utterly technical" once the intervenor is allowed to join, Froomkin wrote. "For example, if the original plaintiff were to pull out, the intervenor would have a right to continue the suit. When they are both in, both have the same rights as each other."

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We asked Hays about his claims during an interview July 15. He said he could have been clearer by saying the Senate was not party to the lawsuit, instead of the Legislature. "Did I speak inaccurately? Perhaps I did. If we are going to split the hair a part of the Legislature did join the lawsuit -- they didn't file the lawsuit."

Hays also disagreed with the suggestion that the House is "suing" the people of Florida.

"If the House was suing the people of Florida, No. 1 the House would have been one of the initiators of the thing. Their purpose would have been to overturn the thing." Hays said he has heard the House chose to join the lawsuit "for clarification to determine whether or not that amendment in the Florida Constitution puts us in conflict with the U.S. Constitution." He said the goal of the two members of Congress is to overturn Amendment 6.

If Hays had said the "Florida Senate has not filed a lawsuit against Amendments 5 and 6" that would be a true statement -- the Senate has not joined the lawsuit against Amendment 6 and has no plans to do so. And the lawsuit is about Amendment 6 -- not Amendment 5. But that's not what Hays said -- he said the Legislature has not filed a lawsuit. While that's true on a technical level -- the two members of Congress filed the lawsuit -- the House did join as a plaintiff. Hays later explained that the House joined as an intervenor "seeking clarification" but the House is seeking more than clarification -- the House has filed a motion asking that Amendment 6 be declared unconstitutional. We rate this claim Barely True.