Courthouse for the U.S. District Court for the Northern District of Florida. Credit: Michael Moline
The trial over the fate of Black voting representation in North Florida wrapped up this week after four days’ testimony, with members of a three-judge panel suggesting they would rule by the end of the year on whether Gov. Ron DeSantis legitimately vetoed a Black-held congressional district.
That would give the Legislature time to redraw the congressional districts in the region time during its regular session, which opens in January, should the court decide that the political map that DeSantis forced upon lawmakers violates the U.S. Constitution and the Florida Constitution’s Fair Districts Amendment.
A ruling vindicating DeSantis could boost his standing in the Republican presidential primaries while undermining the Fair Districts Amendment, the voters’ 2010 attempt to banish partisan gerrymandering and protect Black voting power. The measure was modeled on the federal Voting Rights Act. Note that the governor’s map gave Republicans 20 of Florida’s 28 congressional seats.
Lawyers for Common Cause Florida, Fair Districts Now, the Florida State Conference of the NAACP, and individual voters asserted during four days inside the U.S. District Court for the Northern District of Florida building in Tallahassee that the governor acted from racial animus in violation of Fair Districts.
DeSantis has argued that, to the extent the amendment requires a “racial gerrymander,” it violates the equal-protection language in the Fourteenth Amendment — ironically, a post-Civil War attempt to protect the rights of newly freed enslaved people.
Lead plaintiffs’ attorney Gregory Diskant told the judges hearing the case — Adalberto Jordan, Casey Rogers, and Alan Windsor — that the governor’s argument is pretext.
“He didn’t want a Black-performing district in North Florida,” Diskant said.
Mohammad Jazil, lead lawyer for the state, defended the governor.
“You just can’t perpetuate a racial gerrymander,” Jazil said. It doesn’t matter in the Florida Supreme Court OK’d it — which the court did after the post-2010 U.S. Census. “It’s a racial gerrymander.”
The case could present the U.S. Supreme Court an opportunity to further erode the Voting Rights Act’s protections for minority voters, although the justices have turned away a similar argument raised by Alabama. In a separate challenge in state court, a trial judge ruled the DeSantis plan violated the Florida and U.S. Constitution. The case is now before the Florida First District Court of Appeal.
The district at issue — CD 5 — was based on the state high court’s design back then. Democrat Al Lawson, who is Black, held the seat for a decade but was defeated in his attempt at reelection in the rejiggered version DeSantis forced the Legislature to adopt last year.
The district ran from Black neighborhoods in Jacksonville to Gadsden County, Florida’s only Black-majority county, capturing portions of Tallahassee, or about 200 miles. The area is dominated by Florida’s old plantation belt and includes descendants of formerly enslaved people. The DeSantis map splits North Florida into five districts dominated by whites.
Plaintiffs’ witnesses emphasized Florida history, dating to post-Reconstruction, of using elections and district maps to keep Blacks down. Witnesses for the state insisted all of that is ancient history and no longer a problem.
To qualify as constitutional, any map influenced by racial considerations has to be narrowly tailored to meet a compelling state interest. Diskant and his team of young lawyers argued that empowering Black voters meets that test. Jazil and his team argued otherwise.
The plaintiffs have pointed to inconsistencies in DeSantis’ treatment of redistricting. For example, UCLA political science professor Matthew Barreto testified that the same objections DeSantis raised to the Legislature’s proposal to build an alternative Black-opportunity CD 5 within Duval County also applied to state Senate District 5 in the same area.
Both districts were wrapped around by a white-dominated district that trial participants referred to as a “Pac-Man” in structure because the map makes it look like the one is chomping down on the other. But DeSantis never complained about the Senate districts arrangement.
On Tuesday, the state’s legal team called Douglas Johnson, president of National Demographics Corp., a consultancy that advises state and local governments on reapportionment, who sought to undercut Barreto’s analysis.
‘A matter of degree’
Judge Jordan couldn’t see any difference.
“To my eye, both CD 5 and SD 5 are almost completely enveloped by the neighboring district,” Jordan observed. “Aren’t they both the same?”
“It’s very similar,” Johnson acknowledged. “It’s really just a matter of degree.”
The state also called Mark Owen, a political science professor at The Citadel, who suggested it’s not unusual for a governor to veto a redistricting map — the same thing happened during the recent cycle in Kansas, Kentucky, Louisiana, Pennsylvania, and New Hampshire, he said.
Owen acknowledged, however, that DeSantis was the only governor to veto a map based on the racial composition of a district.
Alex Kelly, DeSantis’ acting chief of staff and point man on redistricting, testified Tuesday that he attempted to build a Black-opportunity district in North Florida but couldn’t do so consistently with the governor’s insistence that it be more compact than the Duval-Gadsden district.
Jazil argued that even though the Florida Supreme Cout designed the East-West district, it never held that it was consistent with the equal-protection language in the U.S. Constitution. The court was more concerned with the influence of political consultants who helped legislative Republicans gerrymander a partisan advantage into the maps last time, he said.
As for DeSantis’ lack of objections to the similarly constructed Northeast Florida state Senate district, Jazil noted that the governor was legally powerless to veto a legislative reapportionment map.
He asserted that DeSantis holds “finite political capital” — this of a governor accustomed to turning the Legislature to his will.
“Perhaps he’s picking his fights,” Jazil said of the governor.
‘The fight is not over’
Diskant conceded it’s not “racist to want a colorblind Constitution.”
“But what’s out of bounds is, in part for reasons of race in a state that has Black-opportunity districts, to try to destroy a Black-opportunity district,” he said.
He acknowledged the Legislature is entitled to a presumption of good faith but not when discrimination motivates its actions.
“This case shows the fight is not over,” he said.
Compared to past versions of Black-opportunity districts that included Duval County — which wormed their way deep into Central Florida — the East-West district was as compact as possible, given population distribution in the region, Diskant asserted.
Furthermore, the governor had no authority to declare that the “Florida Supreme Court got it wrong,” as Kelly testified at one point — that is, to “substitute private opinion for the courts.”
And DeSantis knew that the state’s high court has blessed the East-West district, as the governor’s office noted in a letter asking the court to issue an advisory opinion during the height of the debate over the district.
Judge Rogers asked whether that was evidence the governor’s stated objections were pretext for race discrimination.
“It shows an intent,” Diskant replied, and demonstrated how “slender, inconsistent his arguments are.”
Diskant noted evidence at trial of Florida’s history of using election law including redistricting to erode Black power. Even DeSantis aides like Kelly and general counsel Ryan Newman have acknowledged that consideration of minority voting strength can be a compelling state interest if narrowly tailored, the attorney added, noting that the Florida Supreme Court has affirmed as much.
Additional evidence of racial animus is that the Duval-only district met “every one of his stated objections to the East-West district, in that it was compact and retained enough Black voters to elect a Black representative, Diskant said.
“His arguments are made up,” he said. “There’s something else going on.”
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