FL Supreme Court ponders DeSantis’ congressional redistricting questions

New congresswoman joins critics who say governor is out of line

By: - February 7, 2022 5:08 pm

Supreme Court of Florida. Credit: Danielle J. Brown

Florida’s newest member of Congress, Sheila Cherfilus-McCormick, added her voice Monday to debate over whether the Florida Supreme Court should opine on Gov. Ron DeSantis’ proposed congressional redistricting plan.

Cherfilus-McCormick’s lawyers wrote in a brief that DeSantis’ plan discriminates against Florida’s Black voters. She argues that his request for an advisory opinion from the court, which is a rare thing, is an attempt to thwart the legislative process and “serves only to legitimize the prevention of Black voters from having a fair opportunity to elect candidates of choice.”

Cherfilus-McCormick, who is Black, also has a J.D. from St. Thomas University College of Law, according to a Congressional bio.

Attorneys for Republican Attorney General Ashley Moody’s office, House Speaker Chris Sprowls, Senate President Wilton Simpson and Jacksonville Mayor Lenny Curry briefs Monday in support of the governor’s request for an advisory opinion, without addressing whether DeSantis’ proposed map of voting districts may diminish Black voting strength.

The state’s highest court called for briefs from interested parties, to review arguments over whether the court has jurisdiction to issue an advisory opinion in this instance, and if so, whether it should.

The lineup of briefs through 3:30 p.m. appears to pit Republican leaders in favor of the court issuing an advisory opinion, against FairDistricts Now, Common Cause Florida, and All On The Line, Democratic-leaning voting organizations that oppose the unusual end-run around the Legislature.

The FL Senate’s proposed congressional map retains Black-majority District 5 in north Florida (in purple). Credit: Florida Senate

Central to the debate is the governor’s proposed redrawing of District 5 in north Florida, transforming it from a narrow east-west district running from Duval County to Leon County that is likely to elect a minority representative to a chunky one in the Ocala-Daytona region that likely would not. The Florida Senate proposed the east-west district.

“The Governor does not seek the Court’s opinion on the constitutionality of any proposed legislation or map. To the contrary, the Governor requests guidance on the meaning of section 20(a)’s minority-voting-protection provision, including whether it requires a district in northern Florida that stretches hundreds of miles to connect a black population in Jacksonville with a black population in Gadsden and Leon Counties so that they can elect a candidate of their choice, even though not a majority,” says the brief, in part, filed Monday by DeSantis’ team, headed by General Counsel Ryan Newman, who submitted the governor’s proposed congressional map.

It argues that an advisory opinion from the court would speed proceedings along, with June 1 congressional qualifying less than four months away.

New Congresswoman objects

Rep. Cherfilus-McCormick was elected to Congress in a special election on Jan. 11, in a majority-Black district, after the late Congressman Alcee Hastings died last April. She was elected after a contentious primary and won a special election just three weeks ago to succeed Hastings in District 20.

The governor’s congressional redistricting proposal would eliminate the Black-majority district from north Florida. Credit: FloridaRedistricting.gov

DeSantis did not set a special election to replace Hastings for nine months, leaving District 20 without representation until Cherfilus-McCormick was elected. She faces re-election this fall, subject to the redrawing of congressional voting districts, even though she will have served only 10 months by then.

Cherfilus-McCormick’s brief for the court contends DeSantis’ map dilutes minority voting strength, which often leans Democratic, by concentrating Black voters into certain districts (a practice called packing) and spreading them thin across numerous other districts (called cracking). The plan impacts her own district, she says.

“The intentional or apparent racial discrimination in the Governor’s proposed congressional map, if passed, would violate the Fourteenth Amendment to the U.S. Constitution,” says Cherfilus-McCormick’s brief. “The Governor’s proposed plan reflects a desire to use race to enhance his individual political power by packing Black voters in two of the Black majority Florida districts, while reducing and diluting the number of Black voters (a perverse concept known as “cracking”) in the Black communities in the other two Black majority districts, including Congressional District 20.”

The governor’s request for an advisory opinion on his proposed congressional map, which was never reviewed or debated in legislative session, thwarts authority reserved for legislators elected by their constituents.

“This request for an advisory opinion is not for any legitimate purpose, but instead serves only to legitimize the prevention of Black voters from having a fair opportunity to elect candidates of choice,” Cherfilus-McCormick’s brief says.

Different set of rules?

No so fast, writes the legal team representing Attorney General Moody, arguing that redistricting is not a typical legislative action.

“The Governor’s letter identifies precedent suggesting that this Court may not issue an advisory opinion to address the validity of legislation merely because the Governor has the power to approve or veto that legislation.  Whatever the import of that precedent, the Attorney General respectfully submits that the Court can and should answer the Governor’s question for multiple independent reasons grounded in the distinctive character of congressional reapportionment,” says the AG’s brief.

In its brief, All On The Line said DeSantis has no authority to draw voting districts and that the Supreme Court does not have sufficient information to issue an advisory opinion on any districts – though future lawsuits would change that.

“Having no constitutional power to draw Florida’s congressional districts, the Governor released his own plan on January 16, 2022. In contrast to the Legislature’s plans, the Governor’s plan does not include a district resembling the current North Florida District 5. The Governor also threatened to veto the Senate’s congressional map, describing District 5 as ‘an unconstitutional gerrymander’,” say attorneys for All On The Line.

“Moreover, the Court lacks the factual record needed to answer the Governor’s inquiry,” the attorneys observe, saying the lack of a factual record and requisite data leaves the court with no basis for an opinion other than conjecture.

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Laura Cassels
Laura Cassels

Laura Cassels is a reporter, former statehouse bureau chief, and former city editor. She is a classical pianist, a Florida State University graduate and proud alum of the Florida Flambeau, an independent college newspaper.