By Jim Saunders, The News Service of Florida
Did Governor Ron DeSantis violate the Florida Constitution? A Leon County circuit judge will decide if his congressional redistricting plan violated 2010 state constitutional amendment that barred drawing districts that would “diminish” the ability of minorities to “elect representatives of their choice.”
DeSantis’ attorneys argue that the state Constitution’s “non-diminishment” standard violates the U.S. Constitution’s Equal Protection Clause.
- Why didn’t the Equal Protection Clause argument come up before the amendment was placed on the ballot 13 years ago?
TALLAHASSEE — When Gov. Ron DeSantis last year took control of congressional redistricting, he argued that keeping a sprawling North Florida district designed to elect a Black candidate would violate the U.S. Constitution.
Now, a court will decide if he was right.
Attorneys for the state and a coalition of voting-rights groups filed an agreement late Friday that narrowed the issues in a legal battle about a congressional redistricting plan that DeSantis pushed through the Legislature in 2022. The plan dramatically redrew a district that in the past elected Black Democrat Al Lawson, helping lead to Republicans being elected across North Florida in November.
Voting-rights groups have argued in the lawsuit filed in Leon County circuit court that the new map violated a 2010 state constitutional amendment that barred drawing districts that would “diminish” the ability of minorities to “elect representatives of their choice.”
But attorneys for the state contend that applying the state Constitution’s so-called “non-diminishment” standard to the North Florida district 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.
In the agreement Friday narrowing issues in the case, the state acknowledged that “if the non-diminishment standard applies to North Florida, then there is no Black-performing district in North Florida under the enacted map.”
But the agreement said the state maintains “that the Equal Protection Clause would nonetheless prohibit the creation of a Black-performing district in North Florida.”
If the voting-rights groups win the court battle, the agreement said the “appropriate remedy to the diminishment in North Florida” would be to essentially recreate the district that elected Lawson in the past. That district, Congressional District 5, stretched from Jacksonville to Gadsden County, west of Tallahassee.
Circuit Judge J. Lee Marsh was scheduled to start a trial in the case on Aug. 21. But the agreement filed Friday proposed holding arguments Aug. 24. A court docket Monday morning did not indicate whether that proposed date had been approved. Representatives of the plaintiffs, including groups such as the League of Women Voters of Florida and Equal Ground Education Fund, Inc., released the agreement Saturday.
DeSantis got the redistricting plan approved during an April 2022 special legislative session after he vetoed a proposal passed by lawmakers. The plan helped lead in the November elections to Florida Republicans increasing their number of U.S. House members from 16 to 20.
The plan drew challenges in Leon County circuit court and in federal court. The Leon County case also alleged that the plan diminished minority voting strength in Central Florida and the Tampa Bay region, but the agreement reached Friday narrowed the case to only focus on the North Florida district.
The lawsuit said the redistricting plan “does not even purport to” comply with the 2010 state constitutional amendment, known as the Fair District amendment.
“Both Governor 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 lawsuit said. “From the beginning, Governor 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.”
But the DeSantis administration contends that stretching a district across North Florida to help elect a Black candidate would violate the Equal Protection Clause of the U.S. Constitution’s 14th Amendment.
“When applying the (non-diminishment) provision in North Florida to draw an east-west, minority-performing congressional district, or any other minority-performing district, race inherently predominates,” attorneys for Secretary of State Cord Byrd, a defendant in the lawsuit, wrote in a February court document. “Drawing congressional districts in this manner is not narrowly tailored to achieve a compelling state interest.”
Marsh’s decision in the case likely will not be the last word. The agreement filed Friday said that “any written order from this court declaring the enacted map to be valid or invalid or enjoining the administration of elections in any district contained in the enacted map can be immediately appealed and that any notice of appeal will be filed within two calendar days of this court issuing its written order.”
The agreement said the two sides also will ask that the case go quickly to the Florida Supreme Court, effectively bypassing a ruling by the 1st District Court of Appeal. It also said they will seek a Supreme Court decision by Dec. 31, which would allow lawmakers to take up the issue, if necessary, during the legislative session that will start in January.
Meanwhile, U.S. District Judge Allen Winsor is scheduled Sept. 26 to start a trial in the federal-court challenge to the redistricting plan.
Much closer to home, gerrymandering is business as usual. Pensacola’s 2009 voter-approved constitution requires that council districts be “contiguous.” Chairwoman Crystal Spencer drafted redistricting standards that she said would be nearly impossible to violate. It was easy. In 2011, the council voted to split District 2 into two “non-contiguous” halves – District 2 South (where Councilwoman Sherri Myers lived as does Councilman Charles Bare whom Myers said she picked to take her place). District 2 Districting Commission representative Diane Mack insisted that making District 2 contiguous was too much change and the public did not want it. She didn’t want it. The city contracted with Supervisor of Elections David Stafford to prepare a districting plan that applied the city charter’s districting criteria to the 2010 census district. Stafford’s plan would have put Mack’s home and her Pineglades neighborhood in District 5.
Councilman Sam Hall then lived in Pineglades. Myers told me that Mack didn’t want to be represented by an African-American. District 5 has an African-American majority minority. Myers told me that from her perspective the gerrymandering “had to be done” because she did not want to be represented by “the type of people who live in Cordova Park.” Under Stafford’s plan, Cordova Park would be in District 2. I told Myers that the type of active, highly educated voters who live in Cordova Park were not likely to vote for her. She agreed. In February 2021, Myers made lots of noise about wanting to “de-annex” District 2 “North” back into the county. I kept telling her that state law would not allow it. She conceded that District 2 had been split in half in violation of law and agreed to fix it for the 2022 election. Then she “again” appointed Mack to the districting commission. Myers told me that she would appear before the commission to ensure that District 2 was contiguous. She never did. Mack was made chair of the commission and again District 2 was split in half. No council member lives in District 2 “North” that includes Walmart, Eastgate Plaza and Camelot. The recent shooting at Northwoods apartments was in District 2 North. I objected to the gerrymandering. Mack then had Meredith Bush the commission’s city-paid legal counsel from Clark Partington Meredith Bush manufacture a grossly tortured legal opinion asserting that a divided District 2 “was” contiguous because a person could get in their car and drive from District 2 South to District 2 North by driving through Unincorporated Escambia County. After the commission recommended its gerrymandered plan, Escambia County Commissioner Robert Bender then demanded that the plan be amended. A special districting commission meeting was called in 2022 and a new plan adopted. I complained that the charter required the new plan be presented at a public hearing. Council Executive Don Kraher told me that he and City Attorney Charlie Peppler had decided by themselves that a new hearing would not be held. Kraher told me that Council President Ann Hill would be told. I complained to Hill and the council that did nothing. The gerrymandering done by Escambia County in 2021 is even worse and violates both the letter and the spirit of the Florida Constitution. I have complained to the League of Women Voters of the Pensacola Bay Area as far back as 2012 about these problems but they do not care. The head of the league once told me that it “lacked the resources” to get involved in the city issue. I also asked the so-called “Women for Responsible Government” group to ask candidates about gerrymandering but they would not.