A state appeals court has rejected a legal attempt to save a Black-opportunity congressional district in North Florida, relying on legal reasoning never raised by the parties to the case: That the district originally was devised to benefit Democrats, not Blacks specifically.
The ruling — released at 4:41 p.m. Friday — sidesteps provisions of the federal Voting Rights Act and Florida’s Fair Districts Amendment that forbid political redistricting plans that diminish minority groups’ ability to elect the representative of their choice.
“We can resolve this appeal by answering a simple legal question: In order to demonstrate a legally cognizable claim that an ‘apportionment plan or individual district … diminishes a member of a racial minority’s ability to elect representatives of his or her choice, does a plaintiff first have to establish that he or she is part of a geographically discrete and compact minority community of historically natural existence?” the majority opinion reads.
“The trial court found it unnecessary to answer the question, and the plaintiffs failed to submit any evidence to this effect. We, however, say yes,” the opinion continues.
Judges B.L. Thomas and Adam Tanenbaum wrote the majority opinion, one of four finding against Black Voters Matter Capacity Building Institute, League of Women Voters of Florida, Equal Ground Education Fund, Florida Rising Together, and individual voters who brought the lawsuit. Ten of the court’s 13 judges heard oral arguments on Oct. 31.
Judge Ross Bilbrey wrote a dissent, joined by Judge Susan Kelsey, arguing the court should never have heard the case but rather passed it up the ladder to the Florida Supreme Court, which will have the final say in any event.
Both the plaintiffs and lawyers representing Florida Secretary of State Cord Byrd, the Florida House, and the Florida Senate had argued for that move, hoping to resolve the dispute in time to adjust districts for next year’s elections.
“Barring that, we should affirm [the trial judge who struck down the district at issue] because the currently enacted congressional districts diminish Black voters’ ability to elect representatives of their choice in violation of one of the Florida Constitution’s Fair Districts Amendments when compared to the benchmark district the Florida Supreme Court previously approved,” Bilbrey wrote.
“And there are or can be alternatives to the current districts, including two plans the Legislature already passed, that are constitutional under the Equal Protection Clause of the United States Constitution,” he added.
Gov. Ron DeSantis vetoed the maps to which Bilbrey referred, which created a district stretching 200 miles from Jacksonville to Gadsden County, including parts of Tallahassee, or, alternatively, a Black-opportunity district entirely within Duval County, arguing they amounted to racial gerrymanders because they preserved Black voting strength in Florida’s old plantation belt.
A Black-opportunity district need not contain a Black majority but should be capable of allowing Blacks to elect their chosen representatives. Previously, the district at issue sent Black Democrat Al Lawson to Congress.
Thomas and Tanenbaum mocked such concerns in their opinion.
“Tallahassee and Jacksonville are separated by about 160 miles of interstate highway (and two Busy Bee fuel-and-convenience destination stops), plus ample byways, farmland, and small communities. The two cities also are separated by drastically different origins and histories — one as a compromise capital location midway between Pensacola and St. Augustine, and the other as a port city and winter vacation destination,” they wrote, waiving aside the plaintiffs’ arguments that these communities nevertheless shared connections.
The majority argued that the Florida Supreme Court, which designed the district at issue following the 2019 U.S. Census, had cited not racial discrimination but rather a partisan gerrymander designed by the GOP-dominated Legislature of the day. The U.S. Supreme Court has held that the federal courts shouldn’t interfere with partisan gerrymanders.
None of the parties raised that issue during the proceedings, so for the court to rely on it is unusual.
Common Cause executive director Amy Keith responded with a written statement.
“The Fair Districts Amendments were designed to stop the kind of gerrymandering the court has green lighted today. The decision goes against the will of the voters of Florida and their right to fair maps.
“We are deeply disappointed by today’s state court decision, and we want Florida voters to know there is still hope for a fair congressional map that protects the rights of Black voters. Common Cause and our partners took the DeSantis administration to federal court to hold them accountable for intentionally drawing discriminatory maps in Common Cause Florida v. Byrd and we are still waiting for a decision.”
–Michael Moline, Florida Phoenix