A case of magnitude: DeSantis’ frontal assault on Voting Rights Act and fate of Black district

By Michael Moline

On October 26, 2023

As fitting for a case of this magnitude, Florida’s First District Court of Appeal will put on a rare show during oral arguments in voting-rights groups’ challenge to Gov. Ron DeSantis’ congressional districting map — specifically, its elimination of a Black-opportunity district in North Florida.

All 13 members of the court will gather in the court’s palatial courthouse on Tallahassee’s South Side to hear the case beginning at 9 a.m. on Halloween, instead of the usual three-judge panel. The court includes four women and only one Black person, Judge Joseph Lewis Jr. All were appointed by Republicans.

Florida’s Rules of Appellate Procedure hold that en banc hearings are “not favored and ordinarily will not be ordered unless “necessary to secure or maintain uniformity of the court’s decisions” or “the proceeding involves a question of exceptional importance.”

That’s certainly the case here. DeSantis’ map gave Republicans 20 of Florida’s 28 congressional seats, helping to install the slim GOP majority in the U.S. House of Representatives that, at the moment, can’t figure out how to organize themselves.

No one has challenged the partisan cast to DeSantis’ map, so that’s not the issue in the case before the First District; instead, the case concerns the governor’s frontal assault on both the federal Voting Rights Act and Florida’s Fair Districts Amendment, approved by the voters in 2010 in hopes of guaranteeing minority representation in Congress.

All of this as the 2024 General Election, during which we’ll elect a president, a U.S. senator, and a new congressional delegation, approaches. The parties to the case, including a collection of voting-rights groups plus, on the other side, Florida Secretary of State Cord Byrd and the state House and Senate. The deadline to register to run for Congress is next April 22.

So, all of this (plus a parallel challenge pending in federal court) needs to get sorted out expeditiously if candidates hope to know where they might run.

The First District could have speeded the process by handing the case directly to the Florida Supreme Court, which will end up deciding the matter in the end. It didn’t do that, but it has set an expedited appellate schedule, as requested by the parties in a joint motion.

“The parties agree that time is of the essence,” that motion reads.

“The trial court struck down the state’s current congressional districting map, and state and local election officials must have clarity on which map will govern the 2024 elections well in advance of Election Day,” it continues. The parties hope to resolve the litigation in time for the Legislature to obey state Circuit Judge Lee March in Leon County’s Sept. 2 order to redraw that North Florida district during its regular session, which begins on Jan. 9 — assuming it’s sustained on appeal. Otherwise, Marsh has the option of drawing his own map.

CD 5

The challengers to the governor’s plan include the Black Voters Matter Capacity Building Institute, League of Women Voters of Florida, League of Women Voters of Florida Education Fund, Equal Ground Education Fund, Florida Rising Together, and individual Florida voters including several Black voters from the old district.

The case centers on the old Congressional District 5, which stretched some 200 miles between Jacksonville through Tallahassee to majority-Black Gadsden County. The district, encompassing Florida’s old plantation (therefore slavery) belt, sent Black Democrat Al Lawson to Congress. The DeSantis map enacted five districts that elected white Republicans.

DeSantis has argued that the old district, designed by the Florida Supreme Court following the last redistricting cycle a decade ago, therefore considered as a benchmark district during redistricting, amounted to a racial gerrymander that offended the Equal Protection Clause of the Fourteenth Amendment. He figures U.S. Supreme Court, now dominated by conservatives, will back him up.

(That the court designed the district back then doesn’t mean the sitting justices, of whom DeSantis appointed five of seven, will uphold it now; they’ve overturned a number of precedents since gaining control.)

The voting-rights groups argue, in a brief filed last Wednesday, that the plain language of Florida’s Fair Districts Amendment and the Voting Rights Act (upon which the amendment was modeled) requires Florida to protect the ability of Black voters in North Florida to elect a representative of their choice — under the law, they need not comprise a majority but do need sufficient strength to have a shot at installing their candidate (that’s why this is sometimes called an “opportunity district”).

The state’s voters approved Fair Districts in 2010 to forbid partisan gerrymanders or diminishment of ethnic voting strength.

Now Article III Section20(a) of the Florida Constitution, the amendment reads: “No apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.”

Fair Districts requires geographically concise districts each containing roughly the same number of voters that to the extent possible respect political boundaries; natural features including rivers and lakes; and infrastructure including highways. Maintaining minority representation is a higher priority, however.

“But while appellants -the state] may choose to ignore the law and the facts that govern this appeal, this court cannot overrule existing precedent, nor does it have a basis to disturb the trial court’s well-supported — and often undisputed — factual findings,” the plaintiffs’ brief to the First District says.

‘Muddy the waters’

“Ultimately, appellants’ arguments are nothing more than an attempt to muddy the waters of a straightforward constitutional challenge. The trial court’s holding that the Enacted Plan diminishes minority voting strength in North Florida in violation of the Florida Constitution was compelled by the stipulated facts and binding Florida Supreme Court precedent. This court is similarly bound,” the plaintiffs continue.

They add that the U.S. Supreme Court itself has recognized that districts can be drawn to protect minority interests and that that does not constitute racial gerrymandering: “To suggest that Florida cannot act to protect its own voters, who themselves enshrined Article III, Section 20 into their state constitution, is plainly incorrect. Florida is both empowered and entrusted to enact minority-protection laws, and appellants are left with nothing to support their efforts to undermine the power of their own constitution.”

In their own brief, filed on Oct. 4, attorneys for Byrd cast the old congressional district as downright racist and a violation of the spirit of the Fourteenth Amendment (ironically, a post-Civil War measure meant to protect formerly enslaved people.)

“[T]he non-diminishment provision in Florida’s Constitution compelled the state to adopt a misshapen, 200-mile-wide district in North Florida so that candidates preferred by Black voters win in every election. That racial gerrymander not only balkanized North Florida into competing racial factions; it carried us further from the goal of a political system in which race no longer matters,” the Byrd brief argues.

“Because eliminating racial discrimination means eliminating all of it,” the state declined to perpetuate that gerrymander in its 2022 congressional map. Instead, the state adopted a map with compact districts that bring together individuals based on where they live, not based on their race,” it continues.

“Because Florida’s non-diminishment provision invariably requires the state to prioritize race over traditional redistricting principles, plaintiffs must show that the provision’s mandates are narrowly tailored to meet a compelling interest. They have not done so. Nor have they shown that the specific North Florida gerrymander on which they hinge their claim — Benchmark CD-5 — survives strict scrutiny either.”

Pull the trigger

The parties have stipulated that the DeSantis plan is illegal under settled precedent; the state’s lawyers now want the courts to jettison the precedent.

Both sides also have agreed to pull the trigger on the case if there’s no appellate resolution by April 21.

“If the trial court’s decision has not been reversed on appeal by then, and if the Legislature has failed to enact a remedial map or passes a map that plaintiffs claim does not remedy the alleged diminishment [of the Black vote] in the Enacted Map, the parties will jointly ask the trial court to vacate the automatic stay to conduct remedial proceedings,” the stipulation says

“And if the trial court adopts a remedial map, that map will govern the 2024 elections absent a contrary decision by an appellate court on or before April 30, 2024,” the document adds.

All told, the case should offer fascinating viewing.

“Although en banc hearings are rare, it is not surprising that in a case of this importance the 1DCA judges decided to hear it en banc. It both saves a step (the losing side likely would have asked for a rehearing en banc) and also allows all the 1DCA judges to get a chance to weigh in, Bob Jarvis, a professor of constitutional law at Nova Southeastern Shepard Broad College of Law told the Phoenix by email.

“I think, however, what is more interesting is that the 1DCA did not grant the parties’ pass-through request, which would have sent the case directly to the Florida Supreme Court. I would have bet that it would have done that rather than opt for an en banc hearing. Clearly, however, the 1DCA was not willing to give up the case without having its say,” Jarvis added.

As for how this ends, we’ve already noted that the Florida Supreme Court can’t be relied upon to respect precedent. DeSantis has remarked before that he’s used to losing lawsuits in trial courts only to prevail on appeal (although not always).

There would remain the federal challenge to the district at issue. Common Cause Florida v. Byrd was argued before a three-judge trial panel earlier this month, with arguments and evidence mostly along the same lines as the state litigation. There’s been no ruling yet, but the outcome certainly will be appealed to the U.S. Court of Appeals for the Eleventh Circuit and, ultimately, the U.S. Supreme Court.

John Roberts vs. VRA

Chief Justice John Roberts has been antagonistic toward the Voting Rights Act since he was a dewy young lawyer in the Reagan administration and has led his court into gutting key provisions of that law. However, the court recently rejected an appeal by the state of Alabama of a court order to draw two Black-opportunity districts in that state.

Jarvis, the Nova professor, told the Phoenix that the Alabama ruling makes any appeal from Florida hard to predict.

“If I had to guess,” he wrote in an email, “the Florida Supreme Court upholds [the governor’s] map but the U.S. Supreme Court strikes it down,” he said.

As for meeting the election deadlines, the decision to keep the case probably “means that this matter probably won’t get resolved before the 2024 ballots have to be printed (as the parties’ pass-through request points out — and notice that both sides asked for the case to be sent directly to the Florida Supreme Court),” Jarvis wrote.

“If one was being very cynical, one might conclude that the 1DCA acted as it did to help Republicans in the 2024 elections,” he added.

Dan Vicuna, director of redistricting and representation for Common Cause, was more hopeful for the federal case.

“We believe it’s still possible to wrap up this case and restore effective representation for Black Floridians in time for the 2024 elections. Both sides of the litigation have stipulated that maps can be implemented in 2024 as long as they are drawn by early April of next year,” he told the Phoenix by email.

This piece was republished from the Miami Times.