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Florida appeals court upholds congressional redistricting plan backed by Gov. Ron DeSantis
TALLAHASSEE - A state appeals court Friday upheld a congressional redistricting plan that Gov. Ron DeSantis pushed through the Legislature, rejecting arguments that it unconstitutionally diminished the rights of Black voters to elect a candidate of their choice.
In a main opinion and three concurring opinions, the 1st District Court of Appeal by an 8-2 margin rejected a Leon County circuit judge's ruling that the redistricting plan violated a 2010 state constitutional amendment that set standards for redistricting.
The case, which is expected to go to the Florida Supreme Court, centers on an overhaul of North Florida's Congressional District 5, which in the past elected Black Democrat Al Lawson.
Florida redistricting plan sparks court battle
Voting-rights groups and other plaintiffs argue that the overhaul violated part of the constitutional amendment, known as the Fair Districts Amendment, that barred drawing districts that would "diminish" the ability of minorities to "elect representatives of their choice."
The overhaul led to white Republicans getting elected in all North Florida congressional districts in the 2022 elections.
While Circuit Judge J. Lee Marsh sided with the plaintiffs in September, the appeals court's main opinion Friday focused, in part, on the sprawling shape of the district that elected Lawson. That district stretched from Jacksonville to Gadsden County, west of Tallahassee, as it linked communities with significant Black populations. The shape of the former District 5 was the result of a 2015 Florida Supreme Court decision.
Friday's main opinion said the protection offered by what is known as the "non-diminishment" clause of the Florida Constitution and the federal Voting Rights Act "is of the voting power of 'a politically cohesive, geographically insular minority group.'" It said linking voters across a large stretch of North Florida did not meet such a definition of cohesiveness.
"At its heart, the plaintiffs' claim is based on a false premise ... that minority voters living hundreds of miles apart in totally different communities, not joined in any reasonably configured geographically area, are entitled to proportional representation merely because they were once included together in former CD-5 (Congressional District 5) by court order for three election cycles," the main opinion written by Judges Adam Tanenbaum and Brad Thomas said.
The opinion added, "Without common interests and a shared history and socioeconomic experience, it is not a community that can give rise to a cognizable right protected by the FDA (Fair Districts Amendment). In other words, it is the community that must have the power, not a district manufactured for the sole purpose of creating voting power."
Tanenbaum and Thomas were joined in the main opinion by Judges Clay Roberts, Lori Rowe, Thomas Winokur, M. Kimmerly Thomas and Robert Long. Chief Judge Timothy Osterhaus, Winokur and Long wrote concurring opinions. Judges Joseph Lewis, Stephanie Ray and Rachel Nordby were recused.
Judge Ross Bilbrey wrote a dissenting opinion that said Marsh's findings about diminishment were "supported by competent, substantial evidence." The overhauled District 5 is in the Jacksonville area.
"A historically performing benchmark district (the former District 5) for Black voters was not just diminished - it was eliminated. ... A politically cohesive racial minority is now denied the ability to elect a candidate of choice in a racially polarized district, showing that unconstitutional diminishment has occurred," wrote Bilbrey, who was joined in the dissent by Judge Susan Kelsey.
US Supreme Court may get Florida redistricting case
Bilbrey also argued that the appeals court should have granted a request by the parties to fast-track the case to the Supreme Court, rather than having the appeals court weigh in.
"Only the Florida Supreme Court can determine whether our action here functions as a speed bump or a stop sign on the road to determining whether a map found to violate the Florida Constitution will apply to the 2024 congressional election. Even if the enacted map is ultimately found to be constitutional, our action in not passing the appeal through for immediate resolution by the Florida Supreme Court creates 'uncertainty for the voters of this state, the elected representatives, and the candidates who are required to qualify for their seats' in contravention of Florida Supreme Court policy about the constitutionality of apportionment," Bilbrey wrote, partially quoting a legal precedent.
After lawmakers last year initially considered a district that was similar to the former District 5, DeSantis effectively took control of the congressional redistricting process. He vetoed a plan passed by the Legislature and called a special session that ultimately led to a map that helped result in the November 2022 elections to Florida Republicans increasing their number of U.S. House members from 16 to 20.
DeSantis argued that drawing a district similar to the former District 5 would be an unconstitutional racial gerrymander under the U.S. Constitution's Equal Protection Clause.
A coalition of groups, such as the League of Women Voters of Florida and Equal Ground Education Fund, and individual plaintiffs filed the lawsuit. Also, a separate challenge to the plan is pending in federal court.
Genesis Robinson, political director for Equal Ground, blasted Friday's ruling.
"Every Floridian should be gravely concerned that their judicial system is turning a blind eye to state-sanctioned voter suppression," Robinson said in a prepared statement. "How are Black voters in Florida supposed to have equal representation under the law when the diminishment of their voting rights goes unchecked?"
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Is Voting Rights Act on trial in Florida? Redistricting case could have broad impact
Updated 
TALLAHASSEE | The state of Florida will square off with voting-rights plaintiffs in Tallahassee this week in a high-stakes redistricting battle that could have national implications as both sides argue over the constitutionality of protections for Black voters.
The one-day hearing on Thursday follows the state’s stark admission: Gov. Ron DeSantis’ congressional map violated the state’s safeguards against diminishing the electoral influence of racial minorities. DeSantis’ lawyers will argue those protections infringe upon the Equal Protection Clause of the 14th Amendment and should be thrown out.
The two sides will present their arguments in Tallahassee before Second Judicial Circuit Judge J. Lee Marsh, a Rick Scott appointee, who could approve a new map in time for the 2024 elections. The judge’s ruling will likely be appealed to the Florida Supreme Court, where DeSantis has appointed the majority of justices.
If DeSantis gets his way, Florida courts would go further than the U.S. Supreme Court has and would advance the legal argument, pushed by many conservatives, that it’s inherently wrong to preserve the political voice of Black voters. That could set Florida’s anti-gerrymandering Fair District standards and the federal Voting Rights Act in conflict with the U.S. Constitution, and open the door to Florida’s case being used to dismantle voting protections nationwide.
It’s a gambit for the governor and presidential candidate whose education and corporate governance mandates have demonstrated his opposition to policies that aim to advance racial equity. But it also gives DeSantis the opportunity to become a hero in right-wing circles.
“It’s a very aggressive play on the part of Gov. DeSantis and Republicans, really pushing toward a vision of a race-blind Constitution,” said Michael Li, senior counsel for the Brennan Center’s Democracy Program.
The argument, he said, seems focused on building DeSantis’ political brand. “It’s not a legal strategy. It’s a political strategy. Win or lose, you get some political benefit out of having this fight.”
The lawsuit’s claim
Last year, civil-rights groups sued the state over its congressional map, alleging it violated the Florida Constitution by diminishing Black voting power, discriminating against Black voters and intentionally drawing districts to benefit Republicans.
The governor initially defended the map, but, in the surprise joint filing this month, the state’s lawyers admitted the new map diminishes Black voters’ ability to elect candidates of their choice.
The state and plaintiffs agreed to focus on North Florida’s congressional district and debate whether voter-approved protections in the state Constitution for minority voting rights violate the U.S. Constitution. Plaintiffs dropped their partisan gerrymandering and race-discrimination claims, ensuring the court wouldn’t strike down any districts elsewhere in Florida.
“This is a compromise,” said ACLU of Florida voting-rights attorney Nicholas Warren. “The plaintiffs have secured the assurance that there will be a swift implementation of a fair map in North Florida if they succeed.”
The district was first ordered in 2015 by the courts after the Republican-led Legislature drew a map the court determined had violated anti-gerrymandering provisions in the Florida Constitution. Voters approved the amendments in 2010 with more than 63% of voters in support.
DeSantis and his staff have said they believe the Florida Supreme Court wrongly decided that case.
Where the Voting Rights Act factors in
At the heart of this year’s case is something called the “non-diminishment” or “non-retrogression” standard, language in Florida’s Constitution that largely mirrors the federal Voting Rights Act. District maps cannot diminish racial minorities’ ability to elect preferred candidates.
Those protections, mirroring Section 5 of the Voting Rights Act, used to apply to certain counties across the country, particularly in the South and including Florida. But in 2013, the U.S. Supreme Court’s ruling in Shelby v. Holder struck down the formula for determining which jurisdictions received stronger minority voting protections. Florida’s Fair Districts amendments, however, ensured the protections continued statewide.
Now, the named defendants in the case — Secretary of State Cord Byrd, the Florida House and the Florida Senate — have asked the Tallahassee court to strike those safeguards.
“This is a preview into how the governor views the Voting Rights Act,” said Warren, the ACLU of Florida attorney.
If Florida courts strike down near-identical wording to Section 5’s non-diminishment language, it could lead to more limitations on protecting racial minorities in redistricting.
“The non-retrogression standard served very well for half a century, and Gov. DeSantis’ efforts are just one further step to weaken minority voting strength,” said Jeff Wice, a professor at New York Law School, where he leads the New York Census and Redistricting Institute.
Even if the courts won’t strike down the standard, the state has asked the court to at least adopt new rules around when it would apply, ensuring North Florida’s Black voters wouldn’t qualify for the protections.
The state’s lawyers asserted that DeSantis could buck the voter-approved Fair District provisions and any other constitutional requirements if he finds them in conflict with federal law. His legal team went so far as to argue that amendments ratified by the citizens deserve less legal protections than statutes enacted by the Legislature. This posture contrasts sharply with the governor’s removal of two elected state attorneys, whom he chastised for allegedly failing to enforce state laws.
A ‘stunning’ legal strategy
Admitting to reducing Black voting power in court is “stunning” for a legal strategy, said Li of the Brennan Center. North Florida has had a congressional district for three decades that allowed Black voters to elect their preferred candidate, and it’s unheard of for a state to eliminate a protected district after its creation, he said.
The state’s admission that it diminished Black electoral strength has other potential benefits. Avoiding a trial reduces the chances DeSantis could face the embarrassment Republicans suffered last decade when top staffers testified at trial about their close coordination with political consultants.
DeSantis has shielded his staff from disclosing much of their internal conversations about his decision to veto a previous map and draw districts that reduced Black voters’ electoral power in North Florida, claiming the conversations were privileged.
“The non-diminishment provision is an integral part of what we tried to do” with the amendment, said Ellen Freidin, who led the campaign to pass the Fair District amendments to the Constitution in 2010. After last decade’s court rulings, the Legislature drew maps that respected the new requirements until DeSantis opposed that effort.
The governor’s intervention led to tensions with Republican leadership in the state Legislature. DeSantis eventually emerged victorious, replacing a district that had elected Black Democrats for three decades with a Republican, white-majority district.
DeSantis himself admitted the Florida Supreme Court’s past precedent required that he protect Black voters in North Florida, but that didn’t stop him from asking the new court, most of whom he appointed, to overturn that precedent.
Both the state Supreme Court and the Republican leadership in the Legislature rebuffed his initial attempts. But DeSantis flexed his political muscle, endorsing an ally in a closely watched Republican primary, a signal the governor may reward members of his party who prove loyal.
At the time, House Democrats, led by Jacksonville’s Angie Nixon and Orlando’s Travaris McCurdy, staged a sit-in protest, arguing the governor was chipping away at Black voters’ influence.
The state’s admission that its congressional map did reduce Black electoral strength was a vindication for Nixon, she said when reached this week. Nixon’s legislative office was moved to the basement after the protest, and DeSantis vetoed all of the appropriations she had secured in this year’s budget.
“It is so on brand for Ron DeSantis and the Republican-led legislature to continually attack Black communities, Black districts,” she said. “It was done via redistricting last year. They’re doing it with Black history now. At what point does it end?”
A separate federal trial next month will determine if the state intentionally discriminated against Black voters, a more challenging task for plaintiffs who will have to prove intent.
As the courtroom in Tallahassee prepares for a showdown Thursday that could redefine the electoral landscape, the battle over Florida’s congressional map transcends state lines, placing principles of preserving Black political influence on trial.
Contact Andrew Pantazi of The Tributary at Andrew.Pantazi@jaxtrib.org and @APantazi. Mary Ellen Klas of the Miami Herald/Tampa Bay Times Tallahassee Bureau can be reached at meklas@miamiherald.com and @MaryEllenKlas.
GOP is anti-democratic. Trying to gain and hold power in certain states through dishonest means and not working with the other side on much of anything. So claims to represent everyone or has that duty but only representing their base or half the population.
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