Gov. DeSantis loses first legal round over destruction of Black congressional district

State trial judge cites Florida’s history of racial bias against Blacks

By: - September 3, 2023 4:19 pm

The governor’s congressional redistricting proposal leaves no Black-majority voting district in north Florida. Credit:

A state trial judge has cited Florida’s long history of discrimination against Black voters in declaring unconstitutional Gov. Ron DeSantis’ plan to erase the ability of Black voters in the northern part of the state to elect a congressional candidate of their choice.

The outcome could determine whether Democrat Al Lawson, a Black man who represented the broad swath of North Florida at issue between 2017 and this year, might return to Congress.

Circuit Judge Lee Marsh, sitting in Leon County, barred Secretary of State Cord Byrd from running any more elections using the governor’s plan, which empowered white voters at the expense of Black ones, and said the Legislature should recreate a Black-performing district like the one that used to extend some 200 miles between Duval and Gadsden counties.

The old district captured many of the descendants of enslaved people who worked on North Florida’s plantation belt.

The ruling, handed down on Saturday, could set up DeSantis to provoke a U.S. Supreme Court test case over the degree to which the federal Voting Rights Act (VRA) and Florida’s Fair Districts state constitutional amendments allow congressional districts to acknowledge race as a factor. Fair Districts language targets political gerrymandering and forbids redrawing districts to diminish minority voting power.

But whether DeSantis will prevail in that quest is open to question in light of the U.S. Supreme Court’s rejection earlier this year of similar “race neutral” arguments by the state of Alabama. The court ordered Alabama to create two congressional districts in which Blacks could elect Black candidates.

“Florida has been a state home to discrimination in voting and the people of this state demanded a Florida analogue to the VRA to finally rid the state of its presence. The court therefore finds that the non-diminishment provision of the Florida Constitution is justified by a compelling state interest in rooting out persistent discrimination in the state and that compliance with the provision itself is a compelling state interest,” Marsh wrote.

Pick their leaders

Jasmine Burney-Clark, founder and consulting director of Equal Ground Education Fund, one of the civil rights groups that sued over the plan the governor forced on the Legislature, welcomed the outcome.

“Voters should be empowered to pick their leaders, not the other way around. Today’s ruling reinforces the fact that Gov. DeSantis forced a compliant Legislature to adopt a gerrymandered congressional map that diminished minority representation, disenfranchised voters, and clearly violated the Fair District Amendments,” she said in a written statement.

“Rejection of this gerrymandered map was only made possible because Florida’s redistricting coalition legally challenged the governor’s unconstitutional map. We applaud the judge’s ruling recognizing the need to restore the voting power of Black Floridians in North Florida, and paving the way for a map that empowers voters in that region to select a candidate of their choice. Floridians must not forget this racially motivated assault on our democracy. Our coalition will never waver in our continuing efforts to protect the voting rights of all Floridians,” Burney-Clark added.

As March put it:

“This case is about whether the Legislature, in enacting its most recent congressional redistricting plan, violated the Florida Constitution by diminishing the ability of Black voters in North Florida to elect representatives of their choice. It is also about whether that provision of the Florida Constitution violates the Fourteenth Amendment to the U.S. Constitution.

“In short, the answers are yes and no, respectively. For those reasons, this court will declare the enacted map unconstitutional and enjoin the secretary of state from using that map in future congressional elections. This court will return the matter to the Legislature to enact a new map which complies with the Florida Constitution.”

Fair Districts

The Fair Districts language was modeled on the Voting Rights Act. It says, in part:

“No apportionment plan or individual 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.”

Also suing over the plan were Black Voters Matter Capacity Building Institute, the League of Women Voters of Florida, the League of Women Voters of Florida Education Fund, Florida Rising Together, and individual Florida voters, including several Black voters who resided in Benchmark CD-5 — that is, the version of Congressional District 5 that the Florida Supreme Court drew to conform to the 2010 U.S. Census and which served as the basis for the Legislature’s initial redistricting plan this time around. The Legislature also offered a more compact Black-performing district in Duval County, but DeSantis rejected it.

The plaintiffs originally challenged additional districts that the governor’s plan weighted in favor of white voters but agreed with lawyers for Byrd and for the state House and Senate to focus on the North Florida district. The state-entity lawyers stipulated that the district was illegal under existing precedents governing the VRA and Fair Districts in hopes of getting the case before the U.S. Supreme Court.

The state entities are barred from challenging those interpretations anyway, Marsh ruled, because only individual voters who live in an affected district have standing to challenge political districts, meaning that they have suffered or may suffer injury in the form of diminishment of their voting power.

“But defendants — government entities sued in their official capacities — do not and cannot demonstrate that they would suffer special representational harms as voters sorted into a challenged district based on race,” he wrote.

Racial predominance

Furthermore, the state litigants haven’t proved that race formed the predominant basis for creating a Black-performing district in North Florida, he wrote.

“Indeed, just recently, the U.S. Supreme Court rejected the state’s contention that mapmakers must be entirely blind’ to race when drawing districts to comply with the Voting Rights Act … and reaffirmed ‘the line that we have long drawn between consciousness and predominance’ of race,” March added.

Additionally, the long east-west district meets other standards under Fair Districts and the VRA, including contiguity — meaning “all parts of a district are connected, rather than meeting only at a common corner or right angle” — and respect for geographical and political boundaries, meaning that it wouldn’t unduly split cities and counties.

“Relatedly, the court finds that the district’s length is largely a factor of North Florida’s rural geography and sparse population. Indeed, well before the East-West CD-5 ever existed, Florida’s congressional plan from 2002 to 2012 included a district that spanned from Leon County to Duval County,” Marsh concluded. That plan “is entirely consistent with the geography, the demographics, and the state’s tradition of congressional districting in North Florida.”

And the plaintiffs aren’t obliged to propose a district that meets all the legal requirements — that’s the Legislature’s job, he wrote. “The Fourteenth Amendment only applies to state action, and therefore private citizens and organizations, like plaintiffs, fall outside its ambit.”

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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.