By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — An appeals court Tuesday took up a battle about the constitutionality of a congressional redistricting plan that Gov. Ron DeSantis pushed through the Legislature last year, with some judges appearing skeptical of a challenge filed by voting rights groups.
The 1st District Court of Appeal heard arguments in the state’s appeal of a ruling by a Leon County circuit judge that the plan violated a 2010 state constitutional amendment that set standards for redistricting.
The case centers on an overhaul of North Florida’s Congressional District 5, which in the past elected Black Democrat Al Lawson. The voting rights groups and other plaintiffs argue that the overhaul violated part of the constitutional 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.
But state Solicitor General Henry Whitaker told the appeals court that lawmakers last year drew a “race-neutral map” and that keeping a district that mirrored the old Lawson district would have been an unconstitutional racial gerrymander under the U.S. Constitution’s Equal Protection Clause.
“The plaintiffs here seek to invalidate the state’s race-neutral map in North Florida and replace it with one that contains a district guaranteeing that Black-preferred candidates always win,” Whitaker said.
But Jyoti Jasrasaria, an attorney for the plaintiffs, said the Florida Supreme Court in 2015 approved the Lawson district and that the plan drawn last year by the Legislature and DeSantis does not comply with the state Constitution. She said DeSantis defied the Florida Supreme Court precedent in pushing for the changes.
“The only map that is before this court is the enacted map (approved in 2022), and that map, it’s undisputed, does not comply with the Florida Constitution,” Jasrasaria said.
Some of the judges, however, appeared skeptical of the plaintiffs’ arguments, with Judge Adam Tanenbaum at one point asking why the appeals court shouldn’t question the 2015 Supreme Court decision approving the Lawson district.
“It’s acting in a political capacity when it’s drawing a district, which is the same with what the Legislature typically would do,” Tanenbaum said. “So why isn’t it fair to question what the Supreme Court did when it was enacting, or approving the enactment, of (a) court-drawn set of districts?”
Also, Judge Robert Long said the Florida Supreme Court has not addressed the federal Equal Protection Clause argument and how that should affect the interpretation of the 2010 state constitutional amendment, known as the Fair Districts amendment.
“There’s nothing that has discussed this Equal Protection issue in light of the Fair Districts amendment,” Long said.
After the 2015 Supreme Court decision, Congressional District 5 stretched from Jacksonville to Gadsden County, west of Tallahassee, incorporating areas that had large Black populations. The 2022 plan put the district in the Jacksonville area.
DeSantis cited the equal-protection issue as he effectively took control of the congressional redistricting process last year. He vetoed a plan passed by the Legislature and called a special session that ultimately led to a map that helped lead in the November elections to Florida Republicans increasing their number of U.S. House members from 16 to 20.
Voting rights groups, such as the League of Women Voters of Florida and Florida Rising Together, and other plaintiffs filed the lawsuit last year. Leon County Circuit Judge J. Lee Marsh in September ruled that the revamped Congressional District 5 violated the Fair Districts amendment, prompting a quick appeal by attorneys for Secretary of State Cord Byrd, the House and the Senate.
The Tallahassee-based appeals court took the unusual step of deciding to hear the case as a full court, with almost all members taking part in Tuesday’s hearing. Usually, three-judge panels hear arguments and issue rulings.
Perhaps the most outspoken judge Tuesday, Brad Thomas, said the Supreme Court in 2015 approved the district that elected Lawson to resolve an issue about partisan gerrymandering. As a result, he said it should not be considered what is known as a “benchmark” district for the purposes of determining whether the 2022 plan diminished the ability of Black voters to elect a candidate of their choice.
“This (the district approved in 2015) is a bizarrely drawn district enacted by the Florida Supreme Court, imposed on the Legislature, to remedy partisan gerrymandering,” Thomas said.
But Jasrasaria said the district that elected Lawson should be a “starting point” in considering non-diminishment.
“Here, we’re starting with a district, and that district in this particular case has been approved by the Supreme Court,” she said.
It is unclear when the appeals court might rule. Attorneys for both sides said in a filing that they would like a ruling by Nov. 22. That could give time for the case to go to the Florida Supreme Court and for lawmakers to pass a new redistricting plan, if necessary, during the legislative session that will start in January.
A separate challenge to the redistricting plan is pending in federal court. That case involves federal constitutional issues.
— News Service Assignment Manager Tom Urban contributed to this report.
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