Appeals court backs the Ron DeSantis redistricting plan

Florida redistricting
Redrawn Congressional districts proposed by Florida Gov. Ron DeSantis in April, 2022.

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — A state appeals court Friday upheld a congressional redistricting plan that Gov. Ron DeSantis pushed through the Legislature, rejecting arguments that it unconstitutionally diminished the rights of Black voters to elect a candidate of their choice.

In a main opinion and three concurring opinions, the 1st District Court of Appeal by an 8-2 margin rejected a Leon County circuit judge’s ruling that the redistricting plan violated a 2010 state constitutional amendment that set standards for redistricting.

The case, which is expected to go to the Florida Supreme Court, centers on an overhaul of North Florida’s Congressional District 5, which in the past elected Black Democrat Al Lawson. Voting rights groups and other plaintiffs argue that the overhaul violated part of the constitutional amendment, known as the Fair Districts Amendment, that barred drawing districts that would “diminish” the ability of minorities to “elect representatives of their choice.”

The overhaul led to white Republicans getting elected in all North Florida congressional districts in the 2022 elections.

While Circuit Judge J. Lee Marsh sided with the plaintiffs in September, the appeals court’s main opinion Friday focused, in part, on the sprawling shape of the district that elected Lawson. That district stretched from Jacksonville to Gadsden County, west of Tallahassee, as it linked communities with significant Black populations. The shape of the former District 5 was the result of a 2015 Florida Supreme Court decision.

Friday’s main opinion said the protection offered by what is known as the “non-diminishment” clause of the Florida Constitution and the federal Voting Rights Act “is of the voting power of ‘a politically cohesive, geographically insular minority group.’” It said linking voters across a large stretch of North Florida did not meet such a definition of cohesiveness.

“At its heart, the plaintiffs’ claim is based on a false premise … that minority voters living hundreds of miles apart in totally different communities, not joined in any reasonably configured geographically area, are entitled to proportional representation merely because they were once included together in former CD-5 (Congressional District 5) by court order for three election cycles,” the main opinion written by Judges Adam Tanenbaum and Brad Thomas said.

The opinion added, “Without common interests and a shared history and socioeconomic experience, it is not a community that can give rise to a cognizable right protected by the FDA (Fair Districts Amendment). In other words, it is the community that must have the power, not a district manufactured for the sole purpose of creating voting power.”

Tanenbaum and Thomas were joined in the main opinion by Judges Clay Roberts, Lori Rowe, Thomas Winokur, M. Kimmerly Thomas and Robert Long. Chief Judge Timothy Osterhaus, Winokur and Long wrote concurring opinions. Judges Joseph Lewis, Stephanie Ray and Rachel Nordby were recused.

Judge Ross Bilbrey wrote a dissenting opinion that said Marsh’s findings about diminishment were “supported by competent, substantial evidence.” The overhauled District 5 is in the Jacksonville area.

“A historically performing benchmark district (the former District 5) for Black voters was not just diminished — it was eliminated. … A politically cohesive racial minority is now denied the ability to elect a candidate of choice in a racially polarized district, showing that unconstitutional diminishment has occurred,” wrote Bilbrey, who was joined in the dissent by Judge Susan Kelsey.

Bilbrey also argued that the appeals court should have granted a request by the parties to fast-track the case to the Supreme Court, rather than having the appeals court weigh in.

“Only the Florida Supreme Court can determine whether our action here functions as a speed bump or a stop sign on the road to determining whether a map found to violate the Florida Constitution will apply to the 2024 congressional election. Even if the enacted map is ultimately found to be constitutional, our action in not passing the appeal through for immediate resolution by the Florida Supreme Court creates ‘uncertainty for the voters of this state, the elected representatives, and the candidates who are required to qualify for their seats’ in contravention of Florida Supreme Court policy about the constitutionality of apportionment,” Bilbrey wrote, partially quoting a legal precedent.

After lawmakers last year initially considered a district that was similar to the former District 5, DeSantis effectively took control of the congressional redistricting process. He vetoed a plan passed by the Legislature and called a special session that ultimately led to a map that helped result in the November 2022 elections to Florida Republicans increasing their number of U.S. House members from 16 to 20.

DeSantis argued that drawing a district similar to the former District 5 would be an unconstitutional racial gerrymander under the U.S. Constitution’s Equal Protection Clause.

A coalition of groups, such as the League of Women Voters of Florida and Equal Ground Education Fund, and individual plaintiffs filed the lawsuit. Also, a separate challenge to the plan is pending in federal court.

Genesis Robinson, political director for Equal Ground, blasted Friday’s ruling.

“Every Floridian should be gravely concerned that their judicial system is turning a blind eye to state-sanctioned voter suppression,” Robinson said in a prepared statement. “How are Black voters in Florida supposed to have equal representation under the law when the diminishment of their voting rights goes unchecked?”

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