With Florida’s congressional map vetoed by Gov. DeSantis, redistricting future remains uncharted

More map madness.

Gov. Ron DeSantis vetoed a congressional map almost as soon as the bill hit his desk, and has now called for a Special Session.

“We have a responsibility to produce maps for our citizens that do not contain unconstitutional racial gerrymanders,” DeSantis said. “Today, I vetoed a map that violates the U.S. Constitution, but that does not absolve the Legislature from doing its job. I appreciate the Legislature’s willingness to work with me to pass a legally compliant map.”

The Florida Legislature is scheduled now for a Special Session from April 19 to April 22. But despite the apparently earnest desire for legislative leaders to come together with the Governor on cartography, observers of the process note it remains uncharted from here.

It took 25 days between the Legislature approving a controversial two-map redistricting bill (SB 102) and its arrival on the desk of Gov. Ron DeSantis. Within minutes, the Governor’s office issued a seven-page veto message, as he’d promised for weeks to do. He called for a new Session within hours.

What happens from here remains a mystery, but there are several possibilities being explored by legislative leadership. Can a deal be reached on cartography? Will a Special Session resolve those differences? Could lawmakers petition the courts? All are possibilities, at least on paper. But all options have a degree of uncertainty in a process some already say lacks transparency.

Florida Politics in the last month spoke with a dozen individuals close to the process, many of whom would not speculate on the record about what happens next.

While no one can say for certain what path the process takes from here, all agree the redistricting issue will end up in court sooner rather than later. Meanwhile, a qualification process looms, with prospective candidates for Congress facing a deadline of noon on June 17 to get their campaigns in order.

There’s no wiggle room on whether elections can move forward without a new map in place. Florida picked up a 28th congressional seat in the 2020 Census. That’s good news for the state’s growing clout in Congress, but the state can’t conduct the 2022 election on dated lines with just 27 districts, even if one ignores requirements that each jurisdiction be balanced to populations within one person of ideal population. A new map will be in place for the 2022 elections, whether it’s one lawmakers and the Governor like or not.

How Florida got here

No Governor, at least in modern times, injected himself so thoroughly into the reapportionment process as DeSantis has done. Ryan Newman, General Counsel for the Governor’s Office, submitted two different maps, neither of which the Florida Legislature considered during Session, but both of which cast an unmissable shadow on the process.

Officials from the Governor’s Office initially said the maps complied with Florida’s Constitution. “Of course, we believe Newman’s proposal is constitutional — he would not have proposed it otherwise,” said DeSantis press secretary Christina Pushaw in February.

But more recently, DeSantis has spoken openly about challenging the Fair Districts amendment passed by Florida voters in 2010. “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 this month.

Passing maps that seek to challenge existing law is exactly the direction lawmakers tried to avoid in the once-a-decade redistricting process this year. Speaker Chris Sprowls during Session said DeSantis was pursuing “novel legal theory.” Senate President Wilton Simpson, a candidate for Agriculture Commissioner, made clear early he didn’t want to spend the next few years passing unconstitutional maps.

There’s a loud clamoring among right-wing activists for a map that more clearly favors Republicans, even though Florida’s Constitution forbids drafting cartography with that goal in mind. An analysis by MCI Maps shows the latest map from DeSantis’ office (P 0094) shows 20 districts where Republican Donald Trump won the 2020 Presidential Election and just eight where Democrat Joe Biden won. Privately, several lawmakers involved in redistricting say it’s hard to argue the map wasn’t drawn to benefit a particular political party.

The primary map (H 8019) passed by the Legislature, in contrast, has 18 Trump districts and 10 Biden ones. Trump won the state by 3 percentage points. While Democrats argued this map is unconstitutional as well, most of their arguments centered around whether it diminished minority voting power.

The Legislature did attempt to assuage DeSantis, as its primary map reconfigures Florida’s 5th Congressional District into a Duval-only seat but retains it as a Black district. The move was based on assertions from DeSantis’ Office labeling CD 5 as an “obvious” gerrymander.

The Legislature also attached a secondary map (H 8015) to its final bill in case the courts determine the main map diminishes minority voting power in violation of the federal Voting Rights Act or the Fair Districts Amendment.

But in vetoing the entire bill, DeSantis doubled down on the belief the districts won’t meet strict scrutiny based on the U.S. Constitution.

“Their I-guess-understandable zeal to try and comply with what they believe the Florida Constitution requires, they forgot to make sure what they were doing complied with the 14th Amendment of the U.S. Constitution,” DeSantis said.

Newman’s veto message elaborates on that. Indeed, it seems to acknowledge the primary map approved by the Legislature does diminish the Black population in its reconfiguration of CD 5. “Because the reduction of Black voting age population is more than slight and because such reduction appears to have diminished the ability of Black voters to elect a candidate of their choice, District 5 does not comply with the non-diminishment requirement,” he wrote.

He argued that in leaving a similar CD 5 configuration on its secondary map, the Legislature violates the Equal Protection Clause of the U.S. Constitution.

“The U.S. Supreme Court has warned that a ‘reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid,’” Newman wrote. “As described earlier, District 5 in the secondary map does precisely this.”

DeSantis told reporters Tuesday that he doesn’t believe the Fair Districts Amendment has to be struck down, but if the courts say diminishment restrictions impact even those districts where ethnic minorities are not a majority of the population, that’s going to be a constitutional conflict that must be resolved.

The Governor’s Office sees the drawing of CD 5 as an opportunity to challenge the Fair Districts language on the grounds it conflicts with the U.S. Constitution. And the handful of Republicans who voted against the Legislature’s map and openly prefer the Governor’s plans say ultimately that’s an argument that should prevail in court.

“The Supreme Court rejected the maps in Wisconsin for the same reason Gov. Ron DeSantis plans to veto them in Florida,” tweeted state Rep. Jason Fischer, a Jacksonville Republican, last week. “They violate the Equal Protection clause of the Constitution. Proud to stand with Gov. DeSantis and the U.S. Constitution.”

What’s next?

The Governor called a Special Session to specially address the subject of redistricting. At the same time, lawyers for the Legislature have addressed taking the issue of redistricting directly to courts.

“Both of these remain possibilities,” said Sen. Ray Rodrigues, an Estero Republican and chair of the Senate Reapportionment Committee. It will ultimately be up to legislative leadership which way to go, he said.

Simpson and Sprowls on Tuesday issued a joint statement making clear their desire to reach common ground with the Governor.

“Notwithstanding the delayed census, during the 2022 Regular Session, Florida’s Legislature passed new House and Senate maps with strong bipartisan support. For the first time in nearly a century, the Legislature’s maps were not challenged by a single party, and earlier this month were declared valid by the Florida Supreme Court,” the joint statement notes.

“Unlike state legislative maps, the congressional map requires approval by the Governor, and Gov. DeSantis has vetoed the legislation we passed earlier this month. Our goal is for Florida to have a new congressional map passed by the Legislature, signed by the Governor, and upheld by the court if challenged. Therefore, it is incumbent upon us to exhaust every effort in pursuit of a legislative solution. We look forward to working with our colleagues and Gov. DeSantis during the upcoming Special Session on a congressional map that will earn the support of the Legislature and the Governor and fulfill our constitutional obligation for the 2022 redistricting process.”

Ahead of the veto, Rodrigues’ hope was that more specific information out of DeSantis’ Office would inform the decision. “Typically when there is a veto, a veto message spells out what the Governor objected to,” he said. “That will provide the Legislature with additional information.”

In this case, Newman’s memo serves as that additional information. The message outlines many of the same complaints raised during Session about CD 5, and further expounds on a belief the Duval-only district did little to satisfy concerns, mostly because it reshapes a neighboring Nassau County district to “take on a bizarre doughnut shape that almost completely surrounds District 5.”

The Newman message holds to the belief any racially-motivated draw of the North Florida districts violates the U.S. Constitution. But of note, while the maps submitted by Newman during Session also radically redrew the rest of the state’s congressional districts, the legal arguments presented in the veto message deal exclusively with CD 5.

Rodrigues said that signals the Legislature can focus its energy on the North Florida districts when it reconvenes.

“It’s clear to us those are the districts he has issues with,” Rodrigues said. “When we go back to the drawing board, we can address those concerns specifically.”

With no existing cartography on which all parties agree, the Governor or the Legislature can reconvene for a Special Session dedicated to redistricting and take another stab at the conventional process that already led to legislative maps being approved by the Florida Supreme Court this year.

“We will be able to come back in and be able to get this across the finish line,” DeSantis predicted.

But what results from that is anyone’s guess.

House cartographers in the crafting of the Legislature’s primary map already tried to address the only argument waged openly by the Governor against the Legislature’s maps. If the Governor wasn’t happy with the Legislature’s solution, then the process forward would still appear wrought.

Special Session

Lawmakers will return for a Special Session and take another stab at cartography, and see if there’s any capacity to move forward with a plan. Either the Governor or legislative leaders can call a Special Session. In this case, the Governor issued the call.

But there’s nothing stopping the Legislature from simply gaveling out once they convene in Tallahassee either. More confrontational, lawmakers could attempt to override a veto of the Governor, something that requires a two-thirds vote of the Legislature. That’s something that would require at least some Democratic votes, and no Democrats in the House voted for the congressional map. Only one Democratic Senator voted for the final bill sent to the Governor.

“I don’t know where the math is to pass a map that can survive an override vote,” said Matt Isbell, founder of MCI Maps and a close observer of the redistricting process. “That involves keeping the Democrats happy and most of the Republicans happy. And also passing something that isn’t legally vulnerable.”

Rep. Joe Geller, ranking Democrat on the House Redistricting Committee, doesn’t know that he could vote to override a veto. “Would we join in an override to protect what we view as illegal districts that were enacted by the House and Senate?” Geller asks. But he acknowledges there’s likely a thirst within the Democratic caucus to deliver a high-profile defeat to DeSantis during an election year when the divisive leader appears on the ballot.

“I don’t think we, meaning Democrats generally, would be hesitant about overriding a veto by this Governor,” Geller said.

Sen. Lori Berman, a Delray Beach Democrat, supported a Senate version of congressional districts never considered by the House, but she ultimately voted against the two-map plan passed by the full Legislature. She said the very notion of drafting a backup map in case the first one is ruled unconstitutional puts the legislation in a poor place to defend in court.

But she said on the Senate floor that her vote would be there in favor of overriding a veto if Senate leadership was ready to challenge the Governor. “I am concerned that the Governor has been weighing heavily into the mapmaking process,” she told Florida Politics. “If and when we get an opportunity to vote again, I will have to see what we propose in terms of the maps.”

As that prospect draws closer, she acknowledges there’s a legally touchy situation at hand. Would a vote to override the veto, leaving the state to implement maps she believes violate the Florida Constitution, be viewed as a legislative endorsement?

Of course, all this assumes the Republican caucus holds together for an override vote against a Governor popular on the right. Several lawmakers pointed out that many members had no interest in challenging leadership during the Session because of the balance of power within each chamber. With the House Speaker and Senate President during Session unified in producing cartography independently, no GOP member would risk priority legislation and appropriations requests by crossing leadership. Indeed, many speculated the seven Republicans who voted against the map suffered appropriations losses in the budget as a result.

But the balance of power shifted dramatically on March 14 when the hankie dropped for Sine Die — after the Legislature voted to pass its final budget. Many have watched to see if legislative leaders would first send the Governor the budget or the maps. That the cartography was shipped first may indicate no override vote will even be considered. The watch may now shift to whether the budget is sent over and a seven-day clock starts for the Governor to make any decision on what to nix.

Regardless, even many of the Republican lawmakers who believe fully that the Legislature’s maps are constitutional — and that the Governor’s maps are not — expect many colleagues would be hesitant to vote to override a Republican Governor on a high-profile issue.

And some political consultants say redistricting has already become a base issue, and those voting against the Governor may face a Primary. The question of legality seems to matter less with conservative activists than whether the map increases GOP control.

Christian Ziegler, vice chair of the Republican Party of Florida, guffaws at suggestions the Governor’s maps appear to favor the GOP. How can one prove that without arguing the Legislature should be protecting Democratic seats, he asks. “I’m glad we have the Governor looking out for conservatives,” he said, and that’s a sentiment he’s heard repeated at rallies and political gatherings.

On top of political considerations, the Governor also holds line-item veto power over those coveted appropriations requests and has the ability to veto any bill passed by the Legislature.

At the same time, the Legislature appears pretty entrenched against the maps submitted by the Governor thus far. “I like the Governor’s maps, but the Legislature has its maps,” said Sen. Joe Gruters, also chair of the Republican Party of Florida. He said the process of creating the maps by the Legislature was a transparent one.

Rodrigues, for his part, still holds an interest in passing cartography the Governor will sign.

“It’s in everybody’s interest if we can get the Senate and House to agree on a map that’s acceptable to the Governor, as opposed to leaving this up to the courts to draw,” Rodrigues said.

Legislative leaders closed down the Florida Redistricting website’s submission function. That means there will be no new submissions from the Governor’s Office right now, though that could reopen with the push of a button.

Rodrigues said it’s likely in everyone’s interest, from the Legislature to the Governor, to reach an unforced conclusion. From the beginning of the redistricting process, he has carefully tried to avoid the outcome of the last reapportionment, when the Florida Supreme Court ultimately tossed out the Legislature’s maps and put in place one submitted by Common Cause and the League of Women Voters.

Road to court?

Already, lawsuits have been filed in state and federal court demanding the judiciary branch step in and settle the issue where the executive and legislative branches failed. Both legal complaints suggest the courts should take over now and implement a map for the 2022 election cycle.

That brings the prospect of the Legislature petitioning courts themselves. The Florida Constitution makes clear in Article III that if the Legislature can’t approve a legal legislative map, the Governor can convene lawmakers for a “special apportionment Session which shall not exceed thirty consecutive days.” But that makes no mention of congressional reapportionment, and some lawyers assert the best path possible is for the Legislature to bypass the drama of a Special Session entirely and ask the courts to take up their maps.

Most expect the maps to end up in court regardless.

U.S. Rep. Al Lawson, the Tallahassee Democrat representing CD 5 now, asserted as much in a statement released after DeSantis’ veto.

“In January, DeSantis made it clear that his ultimate objective was to cut the number of African Americans and Hispanic Americans serving in Congress, so today’s veto is no surprise,” Lawson said. “The fact that DeSantis justifies his goal to create racial disparities in congressional representation by citing the constitutional amendment created following the Civil War for the very purpose of remedying those same disparities is absurd and will be soundly rejected by any credible judge.”

If left-leaning groups like Common Cause or Latino Justice didn’t challenge maps for failing to produce enough minority access seats, the conservative group Judicial Watch has laid out an argument to wage in court against maps with any racial gerrymandering conducted at all. It’s one largely adopted by the Governor’s Office, but which could be fleshed out to touch on more districts than just CD 5.

But litigation brings with it a substantial level of risk. While legislative maps sailed through a facial review by the Florida Supreme Court, there wasn’t a two-tier structure, the Senate had cast an unanimous vote to send the maps to the courts and the Governor wasn’t a part of the process at all. There’s significantly more contentious disagreement from all parties about both the constitutionality of the primary map and the decision to include a secondary one.

At the same time, Isbell calls the last DeSantis map a “walking lawsuit.” To pass that, seemingly knowing it violates the Florida Constitution, would beg for courts to toss it out and replace it with something.

Legal experts, meanwhile, say it’s as likely the courts would go with an outside submission as it is they’d accept a product of the Legislature. That’s especially true if lawmakers were to put their own product aside and pass something drafted by the Governor’s Office just to obtain his signature.

Legal experts closely following redistricting say even if the Legislature separately calls for a court opinion, third party groups will still petition and ask judges or justices to replace the legislative product with one drawn independent of the political process.

That’s an outcome people within the political process desperately want to avoid. While many have noted the court replacement map put in place before the 2016 elections led to a more balanced congressional delegation (after the 2018 elections, Florida had 14 Republican representatives and 13 Democratic ones), it led to mass political disruption across the board. The maps ended the congressional careers of both U.S. Reps. David Jolly, a Republican who lost his seat in 2016 to Democrat Charlie Crist, and Gwen Graham, a Democrat whose Panhandle seat appeared unwinnable so she elected not to run that year.

Of course, many believed the maps would not have been delivered to the Governor unless some less messy path forward was roughed out between DeSantis and legislative leaders. Parties have been tight-lipped about any discussion that might have taken place in the past 25 days. Even lawmakers intimately involved in the redistricting process were not privy to negotiations, if they took place at all.

That leaves the entire political world, including congressional candidates laying the foundation now for 2022 campaigns with no knowledge of where district lines will fall, lying in wait.

There’s no map to the future. But the course of cartography should come into view soon.