Republished with permission from Florida Phoenix, by Michael Moline

Attorneys for the DeSantis administration and the Florida Legislature are urging the Florida Supreme Court to dismiss an appeal testing whether the destruction of a North Florida congressional district that elected a Black Democrat violates the state and U.S. constitutions.

Should the justices decline to hear the case, a lower appellate court’s rejection of arguments in favor of the district filed by voting-rights organizations would stand. That would mean that Blacks living in Florida’s old plantation belt would be denied representation by one of their own.

Briefs filed in late December on behalf of Cord Byrd, the DeSantis-appointed Florida Secretary of State who administers elections, and the Florida House and Senate noted that the Legislature is due to convene for its regular session next Tuesday and wouldn’t have time to redraw North Florida’s congressional districts if the Florida Supreme Court proceedings drag out.

“Further review in this court would revive uncertainty over the Enacted Plan’s validity and prolong this controversy beyond the parties’ contemplated deadline as we approach the 2024 elections,” the Byrd brief reads.

Both briefs note that the parties to the case—including Black Voters Matter Capacity Building Institute, League of Women Voters of Florida, Equal Ground Education Fund, Florida Rising Together, and individual voters—agreed to seek expedited Supreme Court review of a trial judge’s decision striking down the North Florida map, hoping to resolve the dispute by the end of the year and in advance of the legislative session.

In spring 2022, the state House and Senate approved a redistricting plan that would have preserved a Black-opportunity district in North Florida, meaning one where Blacks had a chance to elect their candidate of choice. Gov. Ron DeSantis vetoed it and insisted the Legislature adopt his own map, which abolished the district, and the lawmakers complied.

Expedited Appeal

Rather than pass the case up to the Supreme Court, the First District Court of Appeal, an intermediate appellate court that sits in Tallahassee, insisted on hearing the case before a rare full-court panel and upheld the execution of what’s been referred to in court documents as the “Benchmark District,” the rough equivalent of the district formerly represented by Al Lawson. Now, white Republicans represent the entirety of North Florida.

“Respondents [Byrd and the Legislature] honored that commitment by agreeing to expedition before the First District, and in expediting jurisdictional briefing in this court. Respondents nowhere consented to additional appellate proceedings in this court following a First District decision. There has now been an appellate resolution about the legality of the state’s maps—before December 31—as the stipulation contemplated,” the Legislature’s lawyers argue in their brief.

The voting-rights groups argue that the existing map violates both the federal Voting Rights Act and Florida’s Fair Districts state constitutional amendment by diminishing Black voters’ power to elect the candidate of their choice. The state Supreme Court itself drew the Benchmark District in 2015, following extended litigation following the 2010 congressional reapportionment.

DeSantis insisted the district amounted to a “racial gerrymander” forbidden by the Fourteenth Amendment’s Equal Protection clause.

The First District Court upheld the DeSantis map on Dec. 1, ruling that the non-diminishment language didn’t apply because the 2015 Supreme Court decision was based not on racial considerations, but a political one, namely that the court had rejected an original legislative map that unlawfully benefited Republicans.

The First District majority held that the Benchmark District didn’t benefit the required “naturally occurring,” “geographically compact” Black “community.” Instead, it said, the district’s Black population was “far-flung” and “artificially brought together.” The district stretched around 200 miles to capture Black voters between Duval and Gadsen and Leon counties.

Jurisdiction

The voting-rights groups, in their own brief on Dec. 14, argued “the First DCA expressly contravened and cast aside this court’s decisions interpreting the Fair Districts Amendments and established a new test that cannot be reconciled with multiple decisions of this court. The court should assert jurisdiction to correct the First DCA’s brazen attempt to ignore this court’s precedent.”

The Supreme Court is not obliged to hear the appeal, although the Legislature’s brief notes that the justices could do because the case involves a constitutional challenge. However, both sets of state lawyers argued the justices back then didn’t decide the specific issue before it now because nobody had raised it: Whether the district was a racial gerrymander.

Moreover, there’s no need for the court to provide guidance for the future, both state parties argue, because this situation is unlikely to recur.

“No other Florida court has addressed the unique scenario presented to the First District: whether a court-imposed map connecting far-flung communities of minority voters from different regions of the state into a single congressional district in which those voters comprise less than a majority of voters can constitute a valid benchmark district under Florida’s non-diminishment provision,” the Legislature’s brief reads.

“No other litigation is currently pending on this question. And the Enacted Plan contains no other districts that remotely resemble [the district] making it unlikely the Legislature will need to address this question during the state’s next redistricting cycle,” it adds.