Gov. DeSantis bent on provoking fight over redistricting; court action quiet for now

He pledges veto of ‘an unconstitutional gerrymander’

By: - February 16, 2022 3:04 pm

The Florida Supreme Court building. Credit: Michael Moline

Once redistricting maps that the Florida House and Senate wrote for themselves landed before the Florida Supreme Court for its automatic review, the docket went quiet.

Too quiet?

Although the deadline has passed for filing objections to the plans, the court’s docket reflects not a single challenge. But that doesn’t end the matter: Anyone is still free to file legal arguments for against acceptance by the justices of the maps through 11:59 p.m. on Saturday night. The court doesn’t plan to hear oral arguments.

But Gov. Ron DeSantis represents a wild card. More on that below.

And Joe Geller, a Democratic House member representing parts of Broward and Miami-Dade counties, has predicted litigation will come later. He serves as the ranking Democrat on the House Redistricting Committee.

“If the House map is thrown out for being constitutionally deficient under Fair Districts, or because it violates the Voting Rights Act, it will be after a full trial with all the facts in the sunshine. It would not likely be after the extremely limited review available at the Florida Supreme Court right now. This is especially the case given the extremely compressed timeline the court is operating under for this initial review. Filing in the Supreme Court proceeding would only have delayed proceedings and slowed down access to a trial,” Geller said in a written statement.

State Rep. Joseph Geller, representing parts of Broward, Miami-Dade. Credit: FL House of Representatives

“I can’t speak for everyone, but this may be the reason that no one in the state filed comments or briefs in this proceeding. If anyone wants to know where we stand on the maps, they have only to look at the extensive record we developed in committees and on the House Floor to see our concerns about minority voter packing and cracking, lack of language minority voter protection, and indeed the entire redistricting process in the House,” he said.

Ellen Freidin, CEO of FairDistricts, also seemed ready for a fight.

“While the Senate has also passed a congressional map that appears to be reasonably compliant with the law, the map moving forward in the House eliminates a minority access district that the Senate rightly identifies as being protected,” Freiden told the Phoenix in her own written statement.

“With Gov. DeSantis taking the unprecedented action of seeking permission from the Florida Supreme Court to obliterate minority seats and threatening a veto to exert influence over Senate and House negotiations, Florida voters must remain vigilant and vocal in their demand for fair representation,” she said.

That last remark regards maps of congressional seats that Gov. DeSantis has released his own  — a practically unprecedented move at this stage of the process (governors can veto congressional maps but not those for the state House and Senate).

The governor would redraw those districts in ways that would eliminate at least one Black member of Congress and put the GOP at an 20-to-eight advantage within the state’s delegation.

During a news conference in Marianna last week, the governor struck a characteristically pugnacious tone about the matter.

“We will not be signing any congressional map that has an unconstitutional gerrymander in it, and that is going to be the position we stick to. Just take that to the bank,” DeSantis said.

He referred to Congressional District 5, now held by U.S. Rep. Al Lawson, who is Black. The district sprawls across North Florida from Jacksonville to the majority-Black Gadsden County, including portions of Tallahassee. Both the Senate and House maps include versions of a protected Black district in that area.

In two versions of DeSantis’ plan, C.D. 5 runs along the Atlantic Coast including Palm Harbor and the Ocala National Forest. According to data complied by Redistricting & You, Donald Trump won 59.4 percent of its vote in 2020.

Tallahassee gets plonked in C.D. 2, with straddles the central Panhandle. It went 55.3 percent for Trump. The effect is to strand the dependably blue Tallahassee and Gadsden County within a sea of red.

Appeal to the base

The effect, as the governor campaigns for reelection and looks ahead to 2024, is more likely to appeal to the Republican’s Trump-besotted base than the Senate map, which contains 16 districts that went for Donald Trump two years ago and 12 likely to skew Democratic. Under the existing map, Republicans control 16 seats to the Democrats’ 11. The pending House map also favors the GOP but not as aggressively as the governor’s.

Sheila Cherfilus-McCormick, elected recently to the C.D. 20 left vacant by the death of longtime incumbent Alcee Hastings, fears the governor’s map would also damage minority representation in her district.

“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,” she wrote in a brief filed with the Supreme Court last week.

The brief came in response to the governor’s request for an advisory opinion on the prospect of a gerrymander. The court declined to involve itself at that point.

However, the court is considering the House and Senate legislative maps and is proceeding with that process while the House decides what to do with its congressional plan (the Senate has already approved its version).

House Speaker Chris Sprowls noted that development from the House rostrum on Tuesday evening, while chiding critics who accused the chamber of gerrymandering.

“Not a single brief — I repeat — not a single brief challenging the state legislative maps has been filed with the Florida Supreme Court,” he said.

FL House Speaker Chris Sprowls. Credit: Florida Channel, screenshot.

“I’d be little remiss if I didn’t put a little more emphasis on that: Not a single group, not a single individual, challenged a single House district in the Florida Supreme Court. Not one solidary argument was presented to challenge our maps before the court. And I would note that the court are the final arbiters of whether our maps comply with Article III, Section 21, of the Florida Constitution,” Sprowls said.

The section he named was inserted into the Florida Constitution in 2010 via a voter-approved amendment pushed by the organization FairDistricts Now. It reads, in part:

“No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice; and districts shall consist of contiguous territory.”

“While we expect the court will conduct the required constitutional review, I am confident that they will see the hard work that was done and the faithful adherence to the law that gave birth to the House map,” Sprowls said.

Freiden also took note.

“Something happened yesterday that has not ever happened before. The Legislature’s proposed state House and Senate redistricting maps were sent to the Florida Supreme Court for their automatic facial review and no one challenged them,” she said in a written statement.

“Throughout this year’s redistricting process legislators have consistently expressed a desire to follow the FairDistricts amendments and in to avoid the debacle of last cycle when they were humiliated in court for willfully defying the constitutional mandates,” she continued.

“They apparently thought that if they followed the FairDistrict’s provisions and case law interpreting them they could avoid challenges.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.