Republished with permission from Florida Phoenix, by Michael Moline

Lawyers defending Gov. Ron DeSantis’ congressional districting map have compared an attempt to preserve voting strength of Black people in North Florida to the old South African apartheid system.

They did it in a brief filed on Friday, just days before the Florida First District Court of Appeal was scheduled to hear oral arguments in the case at 9 a.m. Tuesday. A rare “en banc” court, comprising all 13 of the court’s judges instead of the usual three-judge panel, will hear the case. The filing was a reply brief on behalf of Cord Byrd, Florida’s Secretary of State, who administers the state’s elections.

Those lawyers did it in support of DeSantis’ contention that a voting district designed to give Black voters the opportunity to elect the candidate of their choice, and that a state trial judge ordered the Legislature to draw connecting Black voters in Florida’s old plantation belt, amounts to a racial gerrymander.

DeSantis’ plan, by contrast, divides North Florida between five districts that sent white Republicans to Congress and ousted Al Lawson, now a former Black Democratic representative. Voting rights groups are in court trying to undo that outcome.

“Plaintiffs seek to invalidate Florida’s race-neutral map and replace it with one that contains a racial gerrymander in North Florida—a sprawling congressional district that would group together, with laser-like precision, far-flung concentrations of black voters in Leon, Gadsden, and Duval counties,” the brief states.

“That is the only sort of district that anyone, at any point in this litigation or in the redistricting process, has ever identified that would comply with the rigid, race-based redistricting standards plaintiffs insist the Florida Constitution embodies,” the brief continues.

“No matter how you tweak it around the edges, any similar configuration would pack in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, which bears an uncomfortable resemblance to political apartheid,” it states.

Fair Districts

Although the state’s lawyers lobbed the heavy word “apartheid” onto the first page of their 33-page brief, they don’t mention it again except to argue that—under the Fourteenth Amendment, designed to protect ballot access for formerly enslaved Black people—to protect Black voting power via this district would be racist.

The “apartheid” reference was a quote from Shaw v. Reno, in which the U.S. Supreme Court on a 5-4 vote struck down a North Carolina political map intended to create a second but serpentine Black-majority voting district in 1993. White South Africans didn’t abandon apartheid until 1994.

The challengers to the governor’s plan include the Black Voters Matter Capacity Building Institute, League of Women Voters of Florida, League of Women Voters of Florida Education Fund, Equal Ground Education Fund, Florida Rising Together, and individual Florida voters including several Black voters from a similar district that existed before the latest post-U.S. Census congressional redistricting.

In addition to Byrd, the complaint names the Florida House and Senate. Although DeSantis set the whole matter in motion by vetoing Legislative plans that contained what called a Black-opportunity or -access district, for procedural reasons the governor isn’t a party to the case.

A parallel legal challenge is pending in federal court.

Regarding the state litigation, the plaintiffs argue the plain language of the Fair Districts Amendment to the Florida Constitution and the federal Voting Rights Act (upon which the amendment was modeled) forbids Florida from diminishing Black voting strength.

The state’s voters approved Fair Districts in 2010 to also forbid partisan gerrymanders. (By the way, the DeSantis map elected Republicans to fill 20 of the state’s 28 congressional districts.)

To the extent those laws compel creation of the elongated district, they violate the Equal Protection Clause of the Fourteenth Amendment, the state argues.

“The Equal Protection Clause forbids racial gerrymandering.,” the state’s brief asserts. “A racial gerrymander results when race is the predominant factor for a district’s shape. Such districts must satisfy strict scrutiny”—meaning they are narrowly drawn to achieve a compelling state interest.

‘Textbook’ Racial Gerrymander

In this case, the district at issue “is a textbook unconstitutional racial gerrymander: Race drives its tortured form, and the configuration is not narrowly tailored to a compelling interest,” the brief  insists, because it “subordinates traditional race-neutral districting principles” to “racial considerations.”

Those principles include that districts be compact, respect geographic and political boundaries, and contain roughly the same number of voters. Fair Districts has the same requirements but subordinates them to racial fairness.

That the Florida Supreme itself drew the district (when it was more liberal than it is today) doesn’t matter, the brief says: “Perpetuating an unconstitutional benchmark district in the name of non-diminishment would itself be unconstitutional. A state cannot immunize from challenge a new racially discriminatory redistricting plan simply because it resembles an old racially discriminatory plan.”

Another issue is whether it would be possible to draw a district in the region that doesn’t diminish Black voting power while observing other priorities like compactness. That’s one of the matters attorneys for the House and Senate address in their separate brief, also filed Friday.

“[B]inding precedent from last decade’s redistricting cycle and analogous federal cases confirm that plaintiffs bore the burden to prove that it was possible to draw a constitutionally compliant district configuration,” the House and Senate attorneys wrote.