Florida’s Constitution required lawmakers to complete only two matters during the Legislative Session. One is to pass a budget. The other is to complete redistricting.
That was, in fact, done this year, but not to the satisfaction of Gov. Ron DeSantis. Lawmakers return to Tallahassee this week to consider the cartography presented by the Governor’s Office. Despite widespread questions about whether the courts will endorse his map, leaders of the Republican-controlled Senate and House say the Legislature’s mapmakers won’t craft any other proposals.
A Special Session gavels at noon Tuesday and plans to wrap by midday Friday, if not sooner. Even skeptics expect the other plan to be considered will be a map (P 0109) submitted last week by the Governor’s Deputy Chief of Staff Alex Kelly through the state’s public portal. All in Tallahassee now expect it will pass.
Democrats hold hope it never goes into effect.
As lawmakers meet, a federal court case asking judges to intervene and implement their own map continues to unfold. Monday was the deadline for plaintiffs and intervenors to offer alternatives to whatever map the Legislature approves in Special Session.
But lawmakers in Tallahassee will spend the coming days reconciling the criticisms from DeSantis with the legal advice of their counsel, the language of the Florida Constitution, and an interpretation of the U.S. Constitution in direct contradiction to the former two matters.
Meanwhile, Democrats increasingly have voiced anger at the direction of the Governor’s maps, which appear to cut in half the number of Black-performing congressional districts in the state. Republicans in private believe the maps seem to violate Fair Districts amendment prohibitions both on diminishing racial minorities’ voting power and by being motivated principally to benefit the Republican Party. Yet it appears increasingly clear the only maps the Governor will sign are the ones that come from his shop.
And Florida needs a new map. This year, the 2020 Census awarded a 28th congressional seat to the state as part of federal reapportionment, and lawmakers cannot leave a 27-district map in place while the process unfolds in court.
The DeSantis maps
Along with its map submission, the Governor’s Office directed media to prior legal arguments against the Legislature’s maps and asserted its own product addressed those and did a better job at adhering to other criteria.
“In preparing this proposal, the Governor’s Office has adhered to geographical and political boundaries whenever possible, and indeed did so at a greater rate than the Legislature’s primary map,” read an email to media from DeSantis Deputy Press Secretary Bryan Griffin. “The Governor appreciates the Legislature’s consideration of the proposed map and looks forward to a productive Special Session.”
Legal memos, including a veto message and a prior legal argument sent to the Florida House, take issue primarily with Florida’s 5th Congressional District, represented by Democratic U.S. Rep. Al Lawson. The district spans from Tallahassee to Jacksonville and includes several predominantly Black populations. The seat covers all of Gadsden County, Florida’s only majority-Black county.
But in a memo, General Counsel Ryan Newman said that violates the equal protection clause, pointing to past court decisions saying race cannot be the predominant factor in drawing lines. The Governor’s Office has relied heavily on a 2017 ruling by the U.S. Supreme Court on North Carolina district lines justices said relied too heavily on race without a compelling interest in doing so.
A U.S. Supreme Court decision in March on Wisconsin’s state legislative redistricting plan has encouraged defenders of the Governor’s map. Like Florida, Wisconsin’s Statehouse approved a map with five majority Black seats in its State Assembly, but Democratic Gov. Tony Evers wanted more, submitting his own plan that proffered seven Black districts. The Wisconsin Supreme Court adopted Evers’ plan, saying an increase would ensure compliance with the federal Voting Rights Act (VRA).
As reported by SCOTUSblog, the U.S. Supreme Court, asked by state lawmakers to intervene, disagreed. This weekend, the Wisconsin Supreme Court reversed course and approved the lines crafted by the GOP Legislature.
State Rep. Jason Fischer, a Jacksonville Republican who is one of just seven Republicans in the Florida House to vote against the Legislature’s plan, saw that as validation of the Governor’s arguments.
“The Supreme Court rejected the maps in Wisconsin for the same reason Gov. Ron DeSantis’ plans to veto them in Florida; they violate the equal protection clause of the Constitution,” he tweeted in March.
To the contrary
Nevertheless, not everyone sees it that way.
Rep. Christopher Benjamin, a Miami Gardens Democrat, said there’s no parallel to Florida’s situation.
“Read the opinion clearly — what matters is what our Florida Supreme Court does after the impasse,” he tweeted. “To be clear, a violation of VRA is still an important state interest that satisfies the first prong of strict scrutiny, and we aren’t factually in the same position as Wisconsin.”
For the last month, mapmakers and counsel for the House and Senate have tried to work together to form a map that addressed the Governor’s concerns and did not stomp on Florida’s Fair District amendment. Passed in 2010, that amendment prohibits partisan gerrymandering and demands the protection of voting power for minorities.
The amendment to Florida’s Constitution reads: “Congressional districts or districting plans may not be drawn to favor or disfavor an incumbent or political party. Districts shall not be drawn to deny racial or language minorities the equal opportunity to participate in the political process and elect representatives of their choice. Districts must be contiguous. Unless otherwise required, districts must be compact, as equal in population as feasible, and where feasible must make use of (the) existing city, county, and geographical boundaries.”
Indeed, for the bulk of the redistricting process, the most significant criticism from the left surrounded whether Florida had enough minority seats. Groups like Latino Justice and the League of Women Voters appeared at redistricting meetings to argue a growth of 1.5 million Hispanic voters in Florida between 2010 and 2020 demanded an increase in the number of congressional seats where Hispanics at least controlled the dominant party Primary.
The week ahead
Regardless, there appears to be one map that will meet serious consideration during this week’s Special Session. Senate President Wilton Simpson and House Speaker Chris Sprowls last week signaled staff would not submit any new maps, despite weeks of counsel for the Legislature and Governor’s Office communicating about whether a new map could be drawn that addressed the Governor’s concerns, as well as complying with the legal understanding of state law.
When the Governor submitted his new map, Sen. Ray Rodrigues, chair of the Senate Reapportionment Committee, said he would support the proposal.
“After thoroughly reviewing the Governor’s submission and a discussion with our legal counsel, I have determined that the Governor’s map reflects standards the Senate can support,” he said in a memo to Senators. “As such, I intend to introduce the map as a bill for consideration during the Special Session. I have asked Senate Counsel Dan Nordby to prepare a legal memorandum outlining his analysis of the Governor’s submission, which we will provide for your review.”
At the same time, there have been concerted efforts to insulate legislative staff from any legal exposure with the map, which was drawn independently by the Governor’s employees. Privately, GOP lawmakers assert that if DeSantis and his legal team believe the new map is defensible, they will need to make that case independently.
The Senate Reapportionment Committee will hear a presentation from DeSantis’ team on Tuesday at 1:30 p.m. That notably bypasses the Senate Congressional Reapportionment Subcommittee and could fast-track the map to the floor early in the week. Meanwhile, the House Congressional Redistricting Subcommittee is set to meet at 2:30 p.m. to consider the maps.
There’s some disagreement about what the minority party should do during the Session.
Sen. Audrey Gibson, a Jacksonville Democrat who was the only Democratic member of the Legislature to vote for the map approved during Session, doesn’t foresee any Democrats voting for the Governor’s plan.
She points to the same CD 5 issues that prompted the Governor’s actions, but his solution blatantly disregards the needs of minorities.
“The map the Governor has put forth now is not only diminishment counter to the state constitution,” Gibson said. “It’s a deliberate attempt to create two congressional districts that most likely would only elect Republicans.”
For low-income Black communities in Jacksonville and much of North Florida, they won’t see a Representative in the next decade to focus on solving issues specifically impacting those communities. Gibson has heard suggestions that the community could elect a Black Republican, like U.S. Rep. Byron Donalds in Naples. But she notes Donalds wasn’t elected to a chiefly minority district. “He doesn’t have to worry about how to reduce health disparities or increase public safety in the communities he represents.”
Sen. Annette Taddeo, a Miami Democrat, won’t attend the Special Session. She says the Governor has completely violated the separation of powers and legislative leadership has kowtowed to authoritarianism.
“We’re just going there to go through the motions and give the Governor whatever he wants,” she said. “Why are we bothering to be elected? Why bother to have a Senate?”
She sees the reduction in minority seats as an apparent attempt to make the maps benefit a political party, violating Fair Districts in a way that has nothing to do with the 14th Amendment.
But most Democrats plan to show up to fight the DeSantis map, no matter how much it would be in vain.
Privately, opponents to the map acknowledge the courts are the only avenue that genuinely exists to stop a DeSantis map from going into effect for the midterms this year. But time there is running short and may even have, for practical purposes, expired.
In February, the U.S. Supreme Court stayed a lower court decision to force the Republican-controlled Alabama Legislature to redraw a map with more Black districts. Federal courts have ruled that a map already signed into law can be used for the 2022 midterms, partly because any legal disputes could not be resolved in time for the state’s May primaries, Reuters reports.
A federal lawsuit already asked the courts to intervene with a new Florida map because of the disputes between the Legislature and Governor and a failure to implement a map. There’s a deadline today for plaintiffs or intervenors to submit alternative maps, and counsel for Common Cause already indicated it could offer a map approved by the Senate but not considered by the House (S 8060) as a choice.
But if the Legislature (as expected) passes the Governor’s map, legal observers say it’s unlikely the courts will order an injunction.
Florida’s June 17 qualification deadline for congressional candidates for the ballot is sneaking closer by the day.
Polk County Supervisor of Elections Lori Edwards filed a declaration with the courts that said her office needs a map by May 13 at the absolute latest to re-precinct the county and remain on track to send vote-by-mail ballots to military and overseas voters.
Courts set a date for a trial on May 12 and 13, which still allows them to issue a decision before that point — but it would be down to the wire.
If the process falls apart this week, the likelihood of court intervention for the 2022 election cycle increases significantly. This Special Session remains the last chance for lawmakers and the Governor to get on the same page on a congressional map.
Absent a mutiny among Republican lawmakers against a Governor of their own party — during an election year when every House and Senate member must run for their seat because of redistricting while sharing the ballot with DeSantis seeking a second term — that’s most likely to happen before the Special Session Sine Die.