By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — When Florida voters in 2010 passed a constitutional amendment setting rules for congressional redistricting, they barred drawing districts that would “diminish” the ability of minorities to “elect representatives of their choice.”
Now, more than a decade later, Gov. Ron DeSantis’ administration and the Legislature are trying to fend off a lawsuit by arguing the U.S. Constitution trumps that part of the state amendment.
A Leon County circuit judge will hold a hearing next week on whether attorneys for Secretary of State Cord Byrd and the Legislature should be able to make the argument in a lawsuit challenging a redistricting plan that DeSantis pushed through last year.
The lawsuit, filed by a coalition of voting-rights groups and individual plaintiffs, focuses heavily on Congressional District 5, which in the past sprawled across North Florida and helped elect Black Democrat Al Lawson. But under the DeSantis-backed plan that lawmakers passed in April 2022, the district was dramatically redrawn — ultimately leading to white Republicans winning all North Florida congressional seats in November.
The lawsuit alleges, in part, that the plan violates the 2010 “Fair Districts” constitutional amendment because it diminishes the voting power of Black residents in North Florida.
But attorneys for the state contend that applying the Fair Districts amendment’s so-called “non-diminishment” standard to Congressional District 5 would violate the Equal Protection Clause of the U.S. Constitution. That mirrors a DeSantis administration position last year that the Equal Protection Clause prevented the Legislature from using race as a “predominant factor” in drawing the district.
“When applying the (Fair Districts) provision in North Florida to draw an east-west, minority-performing congressional district, or any other minority-performing district, race inherently predominates,” attorneys for Byrd wrote in a Feb. 27 court document. “Drawing congressional districts in this manner is not narrowly tailored to achieve a compelling state interest.”
But in the lawsuit, the plaintiffs’ attorneys blasted arguments by DeSantis, who vetoed an initial congressional redistricting plan last year. The Republican-controlled Legislature then passed the DeSantis-backed plan.
“Both Gov. DeSantis and the Legislature well knew that dismantling CD-5 would diminish the voting power of Black residents within North Florida and violate the plain command of the Florida Constitution,” the attorneys wrote in a revised version of the lawsuit filed Feb. 8. “From the beginning, Gov. DeSantis publicly stated that he would not accept any congressional plan that contained a configuration of CD-5 that protected Black voters in North Florida from diminishment.”
The June 5 hearing before Leon County Circuit Judge J. Lee Marsh will not directly address the constitutional issues. Instead, it will focus on a legal question about whether Byrd and the Legislature should be able to argue that the disputed portion of the Fair Districts amendment is invalid under the U.S. Constitution.
The plaintiffs’ attorneys contend that a legal concept known as the “public official standing doctrine” prevents Byrd and the Legislature from challenging the constitutionality of a legal “duty.”
“To be sure, the House and Senate may believe that the means by which the Florida Constitution assigns the duty to redistrict are unconstitutional, but that is a question squarely for the judiciary — not the Legislature — to decide in the first instance,” the plaintiffs’ attorneys wrote in an April 14 filing. “To allow the House and Senate to defend their actions by asserting that they have decided that portions of the Florida Constitution are unconstitutional would be to grant the Legislature the power to cherry-pick which constitutional provisions it will follow.”
But attorneys for the House and Senate disputed such arguments.
“Plaintiffs’ motion turns the public official standing doctrine on its head by seeking to prohibit the Legislature from defending the constitutionality of Florida’s legislation adopting congressional districts against a constitutional challenge brought by the plaintiffs,” House and Senate attorneys wrote in a May 5 document.
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