By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — As the state appeals a Leon County circuit judge’s ruling that a congressional redistricting plan violated the Florida Constitution, another battle about the plan is poised to play out in federal court.
A three-judge panel of federal judges is scheduled next week to start hearing arguments in a lawsuit alleging that the plan, pushed through the Legislature last year by Gov. Ron DeSantis, is racially discriminatory and violates the U.S. Constitution.
The two cases, filed by voting rights groups and other plaintiffs, involve different legal issues. But they both center on a decision by DeSantis and the Republican-controlled Legislature to overhaul a North Florida district that in the past elected Black Democrat Al Lawson.
White Republicans won all North Florida congressional districts in the November elections after the map was redrawn.
Attorneys for plaintiffs such as the NAACP and Common Cause Florida argue in the federal lawsuit that the overhaul to Congressional District 5 involved “intentional discrimination” and violated the U.S. Constitution’s 14th Amendment and 15th Amendment. The 14th Amendment ensures equal protection, while the 15th Amendment prohibits denying or abridging the right to vote based on race.
The Legislature passed the plan after DeSantis vetoed a proposal that could have led to electing a Black candidate in District 5, the attorneys wrote in a pre-trial brief filed Tuesday.
“Governor DeSantis was viscerally opposed to any district in North Florida in which Black voters could elect a representative of their choice — no matter how such a district was configured,” the brief said. “He vetoed the Legislature’s plan, and pushed through his own, not in spite of his plan’s adverse impact on Black voting power, but precisely because of it. That is unconstitutional.”
But attorneys for Secretary of State Cord Byrd, the named defendant in the federal case, disputed the allegations of discriminatory intent and said the approved plan is a “race-neutral” map.
“There’s a complete lack of direct evidence of discriminatory intent in passing the enacted map,” the state’s attorneys wrote. “In fact, the governor and Florida Legislature went to great lengths in explaining how they weren’t motivated by discriminatory intent and that the enacted map didn’t even consider race in forming district lines.”
The brief also said that J. Alex Kelly, a DeSantis aide who played a key role in drawing the plan, “focused his attention on creating compact districts that respected political and geographic boundaries.”
The multi-day federal trial is scheduled to start Tuesday and comes after Leon County Circuit Judge J. Lee Marsh on Sept. 2 ruled that the redistricting plan violated part of the Florida Constitution.
The state immediately appealed Marsh’s ruling, and the 1st District Court of Appeal said Monday it will hold what is known as an “en banc” hearing in the case. That means the full Tallahassee-based appeals court will take up the case, as opposed to the usual process of a three-judge panel first ruling on issues.
The state’s attorneys argued in their federal court brief Tuesday that the state-court case should be allowed to “run its course to finality.” But attorneys for the plaintiffs said the state-court case should not delay the federal lawsuit.
“Delaying this (federal) case pending the uncertain timeline and outcome of the state appellate process would make it impossible to assure implementation of an unbiased map before the 2024 election,” the plaintiffs’ attorneys wrote.
District 5 in recent years sprawled from Jacksonville to Gadsden County, west of Jacksonville, and included areas with sizable Black populations. Under the new plan, the district was condensed in the Jacksonville area. Lawson ran in another North Florida district last year and lost to U.S. Rep. Neal Dunn, R-Fla.
Marsh issued a 55-page decision that said the new map violated a 2010 state constitutional amendment known as the Fair Districts amendment, which set standards for redistricting. Part of that amendment barred drawing districts that would “diminish” the ability of minorities to “elect representatives of their choice.”
“Under the stipulated facts (in the lawsuit), plaintiffs have shown that the enacted plan results in the diminishment of Black voters’ ability to elect their candidate of choice in violation of the Florida Constitution,” Marsh wrote.
Next week’s trial, however, will focus on federal constitutional issues.
“The evidence will show Governor DeSantis went into the 2022 congressional redistricting with one overriding goal: eliminating (the previous configuration of) Florida’s Fifth Congressional District, a district where Black voters could elect their candidate of choice,” said the brief filed Tuesday by the plaintiffs’ attorneys.
But DeSantis contended that the U.S. Constitution’s Equal Protection Clause prevented using a district similar to the previous shape of District 5 because it would involve racial gerrymandering.
Tuesday’s brief by the state’s attorneys pointed to a memorandum that DeSantis issued when he vetoed the Legislature’s earlier proposal.
“The governor’s memorandum bears emphasis: He forcefully argued that race-based redistricting is antithetical to the Equal Protection Clause’s race-neutrality dictates,” the brief said. “That very well could have changed minds in the Florida Legislature.”
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