Gov. DeSantis takes aim at Fair Districts amendments

Ron DeSantis. Image via Colin Hackley.

Gov. Ron DeSantis is not limiting his redistricting disdain to a few proposed maps. The Governor at a press conference Tuesday made clear he wants Florida’s Fair Districts amendment thrown out in court.

DeSantis has said for weeks he intends to veto congressional maps approved by the Florida Legislature. Up until now, all arguments coming from his office centered on a single congressional district in North Florida. But in his most detailed public remarks on the issue, DeSantis on Tuesday laid out a legal argument that two 12-year-old Florida constitutional amendments stand in conflict with the U.S. Constitution.

“I think our dispute very well may lead to saying that Florida’s redistricting amendments are not consistent with the 14th Amendment’s equal protection clause,” DeSantis said.

DeSantis’ office this year took the unprecedented step of submitting a proposal for Florida’s now 28 congressional districts. The latest DeSantis map (P 0094) includes 20 districts where voters went for Republican Donald Trump in the 2020 election and just eight carried by Democrat Joe Biden, and it has been widely derided as a partisan gerrymander.

Matt Isbell, founder of MCI Maps and a Democratic political consultant, called the DeSantis proposal a “walking lawsuit.” “Florida will end up in court with that map,” he said.

But criticisms also came from Republican leaders in the Legislature, who worked to avoid pitfalls that resulted in Florida’s congressional map drafted in 2012 being tossed by court mid-decade in part because it illegally favored Republicans.

House Speaker Chris Sprowls said he has appreciated the Governor’s “candor” about the maps. At a press conference on Monday marking the end of the Legislative Session, DeSantis was asked if he would veto the maps while standing beside Sprowls and Senate President Wilton Simpson.

“What do you think? I said what I said and of course I will do that,” DeSantis said. “They haven’t sent it to me yet. But when they do, we will go ahead and do that. Hopefully, we’re able to agree on a product.”

But Sprowls said the Legislature acted “based on what we believe the current state of the law is in the Florida Constitution.”

The clearest disagreement between the Legislature and the Governor has centered around Florida’s 5th Congressional District, which is represented now by Democratic U.S. Rep. Al Lawson.

Cartographers in the House and Senate operated under the assumption the district was a protected minority access seat. Language in the Florida Constitution passed by voters in 2010 states “districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.”

Counsel has advised both chambers of the Legislature that clause means you can’t reduce the number of Black-performing districts. While the House and Senate disagree whether there are three or four of those, analysts in the chamber agree a primary map approved by the Legislature (H 8019) preserves the same number of Black-performing seats as are in place today. DeSantis’ maps have just two.

While the Legislature crafted its maps, Ryan Newman, General Counsel to DeSantis, sent a letter to lawmakers that cited federal case law arguing against retaining a Black seat in North Florida.

“Where race is ‘the predominant factor motivating the Legislature’s decision to place a significant number of voters within or without a particular district,’ the Legislature must prove that such ‘race-based sorting of voters serves a ‘compelling interest’ and is ‘narrowly tailored’ to that end,” Newman wrote. This district lacks compactness and would not survive such strict scrutiny, he argued.

That’s the same argument presented by Robert Popper of Judicial Watch, a conservative think tank. Popper met with hostility from Republican lawmakers during his only testimony in front of the House Congressional Redistricting Subcommittee. They pushed him to admit DeSantis’ office was reimbursing him for his airfare and hotel room, and he pushed off questions about the worth of preserving minority access.

Regardless, as co-author of one of the most widely used measures of compactness, he suggested the Legislature faced “potential infirmities” should it try and defend a district spanning from Tallahassee to Jacksonville, as Lawson’s district does now.

“If this district is not narrowly tailored, it will not satisfy strict scrutiny,” Popper said. “It is not compact. It will not satisfy strict scrutiny. The Supreme Court has viewed extremely noncompact districts as not required by federal law.”

DeSantis seemed to build on that Tuesday as he discussed where his suit could take Florida. Asked if he was laying groundwork to challenge the federal Voting Rights Act, he said that’s not his goal.

“It would not be a vehicle to challenge, say, Section 5 of the Voting Rights Act,” DeSantis said, “partially because Section 5 of the Voting Rights Act isn’t even applicable because with the preclearance formula being done, you would actually have to show really significant, pervasive discrimination in order to have a race-based remedy.”

Section 5 is the portion of the federal Voting Rights Act used to enforce minority voting protections, and it often comes into play with state redistricting regarding the oppression of minority voices.

“Under Section 5 of the Voting Rights Act, a change affecting voting, such as a redistricting plan, may not be used by a covered jurisdiction unless that jurisdiction can show that the change has neither a discriminatory purpose nor will have a discriminatory effect,” reads an explaining page on the Department of Justice website.

But a 2013 court decision substantially changed enforcement, eliminating the requirement for certain justifications with a history of discrimination, including several counties in Florida, to get approval from the Justice Department before going into effect.

DeSantis made clear he doesn’t think any part of the Voting Rights Act would come into play at this point if the Legislature approves his map.

“When Section 5 was done, you would have parts of the country where the African American turnout was 8%. I mean, obviously they were not being allowed to vote,” he said. “Now you have turnout rates that are much higher across the board. I think it’d be very difficult to show that, but I don’t think our dispute would lead to that. I think our dispute very well may lead to saying that Florida’s redistricting amendments are not consistent with the 14th Amendment’s equal protection clause.”

He did express a desire to take Florida’s cartography practices to court.

“It is designed to potentially lead to a legal challenge of Florida’s redistricting amendments,” DeSantis said of his map. “I think if you look at how those amendments are crafted, some of the case law that came in the middle of the last decade — which is what … the Legislature followed and I understand why they did that — it’s our view that if you honestly take that text history and stricture seriously, that that’s much broader than what would be countenanced under the 14th Amendment.”

Florida’s Fair Districts passed in 2010 through statewide voter referenda. A restriction on legislative maps, which DeSantis has no say over, passed with 52.6% of the vote, and a second amendment on congressional redistricting had even greater support, about 62.9%. It’s the language in those provisions that led Florida state courts to throw out both the Legislature’s Senate map and its congressional map mid-decade.