The Florida First District Court of Appeal courthouse in Tallahassee. (Credit: Michael Moline0
Judges of a state appeals court steered arguments over the future of a sprawling Black-dominated North Florida congressional district in a whole new direction Tuesday, raising legal arguments never even uttered by any of the parties in the case.
Lawyers for the state, at the behest of Gov. Ron DeSantis, have argued in court filings with the Florida First District Court of Appeal in Tallahassee that the district, CD 5, amounted to an illegal racial gerrymander. They say its boundaries were distorted to assemble enough Black voters to send a Black representative to Congress.
But during an unusual hearing before 10 members of the 13-judge court, several judges suggested the district was never a racial gerrymander. It instead was a political gerrymander, they offered, because the Florida Supreme Court drew it after concluding an earlier map unduly favored Republicans.
If CD 5 was a partisan gerrymander, this thinking would imply, invalidating CD 5 wouldn’t count as diminishment of Black voting strength in the area. And that would mean DeSantis didn’t violate the federal Voting Rights Act or Florida’s Fair Districts Amendment — which forbid diminishment of Black voting strength — by forcing the Legislature to do so and signing the measure into law.
That it sent a Black man — Democrat Al Lawson — to Congress would have been accidental, then.
“So, it’s not binding for us, to bar this court from holding you can’t establish a benchmark because that district wasn’t drawn to remedy racial discrimination,” Judge Bradford Thomas said at one point.
Judge Adam Tanenbaum, too, asserted that the district only accidentally was Black-performing, meaning that Black voters there could elect their candidate of choice, and therefore can’t serve as a benchmark district against which to measure diminishment of Black voting power.
Those plaintiffs and the state defendants had asked the First District to send the case directly to the Florida Supreme Court, which has the final word, in order to save time, what with the 2024 elections process due to begin early next year. But the intermediate appellate court insisted on hearing the case before an “en banc” panel, or as a committee of the whole.
(Judges Joseph Lewis Jr., Stephanie Ray, and M. Kemmerly Thomas, sat out of the proceeding. All of the judges on the court, which hears most cases arising from state government functions, were appointed by Republicans.)
But that’s not what lawyers for the named plaintiffs — Secretary of State Cord Byrd, who oversees elections, and the Florida House and Senate, which passed DeSantis’ map undoing CD 5 — have been arguing in court. DeSantis himself isn’t a party for procedural reasons.
“Our position here is that CD 5 is not a legally enforceable benchmark from which to measure diminishment because, for all the reasons we’ve been discussing, it was a racial gerrymander,” Florida Solicitor General Henry Whitaker told the First District judges Tuesday.
‘Old movie line’
Jyoti Jasrasaria, a lawyer representing voting rights groups challenging DeSantis’ congressional map, was left to insist that neither Fair Districts nor federal law requires a benchmark district to have been drawn only to address race bias. And, in fact, the Black voters within the district have voted in a cohesive way, she said.
“To quote an old movie line, I don’t think that word cohesive means what you say it means,” Thomas said. “Cohesive can’t mean that voters 200 miles apart vote the same way, can it?”
“Well, the law is clear that the cohesion analysis is done on the voters that live in the district. And here, again, the Florida Supreme Court adopted this district,” Jasrasaria said.
“Well, the governor thought it was unconstitutional. And he vetoed it. I would say that is actually a show that it’s not legally enforceable,” Thomas said.
Jasrasaria reminded him that, under the Florida Constitution, a governor is not competent to declare a law unconstitutional in a binding way. “The oath to defend the Constitution is to defend the Constitution as interpreted by the courts,” she said.
Thomas, Tanenbaum, and two or three other judges who quizzed the lawyers in court would appear to count as down on the benchmark CD 5, which the Legislature used to design a similar district that they passed into law last year.
In other words, they measured their new district against the old one when assessing whether the district was compact, contained a voting population roughly equal with others in the state, respected political and geographic boundaries, and didn’t diminish Black voting power.
That all was before DeSantis vetoed the legislative map and forced lawmakers to design a new one in which Blacks living between Jacksonville and Gadsden County, including parts of Tallahassee, or Florida’s old plantation belt, were divided between five newly drawn districts that elected white Republicans.
A state trial judge in Tallahassee agreed with the plaintiffs — including the Black Voters Matter Capacity Building Institute, League of Women Voters of Florida, Equal Ground Education Fund, Florida Rising Together, and individual voters — that the new districts illegally diminished that power.
The Thomas/Tanenbaum line of thought centered on Black Democrat Corinne Brown’s old congressional district, which ran from Jacksonville south through Gainesville and ended in Central Florida. The Florida Supreme Court, in correcting what it saw as a partisan gerrymander after 2010, instead built CD 5, running East to West.
The Fair Districts Amendment, approved by the voters in 2010, outlaws partisan gerrymanders and places protection of minority voting strength above the other generally accepted standards for sound redistricting, including compactness.
But the judges’ suggestions ran counter to what the state was arguing — that the district was an illegal racial gerrymander under the Equal Protection Clause in the U.S. Constitution.
Daniel Nordby, arguing for the Legislature, insisted the voter groups had an obligation to suggest a Black-performing district that wouldn’t violate equal protection.
In fact, he stressed, it would be impossible to draft “a lawful alternative configuration that complied with both the nondiminishment provision and the Equal Protection Clause.”
“That’s a function of where people live in North Florida,” he said.
“The East-West district would not diminish, but it does so at the expense of every other redistricting criterion we look at under Equal Protection Clause analysis. The district squeezes between I-10 and the Georgia border across the entire length of North Florida. It hooks into Duval County to the east and on the western end it thrusts an appendage from Gadsden County into south Tallahassee,” Nordby said.
That configuration “cannot be explained on grounds other than race,” he continued.
The judges also harped on the district’s long shape.
“Anyone looking at it can see it’s bizarre. It goes from downtown Jacksonville to rural Gadsden County, at one point it’s two miles wide,” Thomas said. “You could drive a car down the interstate with both doors open and kill some voters.”
‘Lots of snakes’
Jasrasaria argued that whether the origins of the district were based on a partisan gerrymander instead of racial justice didn’t matter: The district had worked to boost Black power.
“Section 5 [of the Voting Rights Act] protects any district in which the minority population is cohesive and in which the minority population’s candidate of choice prevailed in the primary and general election,” she said.
“And is reasonably compact,” Thomas interrupted.
“There is no compactness requirement built into Section 5 analysis,” Jasrasaria insisted.
Moreover, CD 5 has never before been challenged and therefore is a legitimate benchmark, she added, and even if it wasn’t specifically drawn as a Black-performing district it historically has served that function.
And it replaced the earlier Black-performing district between Jacksonville and Orlando, Jasrasaria noted.
Thomas proposed a hypothetical situation in which the Legislature drew 14 sprawling minority districts — “lots of snakes, North, South, East, West, diagonal. Lots of totally bizarre … noncompact districts.”
Would the Legislature be allowed to redraw those districts more compactly within a few years, he asked.
Those wouldn’t comply with Fair Districts, Jasrasaria replied, but that’s not the case here, where the Florida Supreme Court drew the map and it’s been in effect for years.
Additionally, the case record reflects racially polarized voting within the area, with Blacks supporting Democrats and whites Republicans, she said.
The Legislature also considered a Duval-only Black-performing district (which DeSantis rejected), with both lawmakers (originally) and the trial judge in the case concluding it would fit the Fair Districts criteria as a Black-performing district, Jasrasaria said.
Racial considerations did not totally drive drawing the district, she insisted — that was the one of the factors the Florida Supreme Court factored in but not the only one.
“It also performs exceptionally well on multiple traditional redistricting criteria, including adherence to traditional political boundaries, where it performs better than every single congressional district in the state,” she said.
Tanenbaum grumbled: “That’s only because it was drawn to include a bunch of voters that voted a certain way, not because a particularly geographically compact group happened to vote a certain way. They vote a certain way because the Florida Supreme Court manufactured it that way.”
Jasrasaria conceded the district was “not a model of compactness.”
But: “It’s certainly not for appellees [the state defendants] or for this court to question the Florida Supreme Court’s approval of benchmark CD 5,” she said at one point.
“Why not? It’s acting in a political capacity when it’s drawing districts,” Tanenbaum shot back. “So why isn’t it fair to question what the Supreme Court said when its enacting or approving the enactment or the court was drawing this district?”
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