Judge says Gov. DeSantis’ congressional map violates state constitution

A Florida judge said the congressional map signed by Gov. Ron DeSantis violates the state constitution.

Leon Circuit Judge Layne Smith will issue an order this week calling for alternative cartography submitted by lawsuit plaintiffs to govern the 2022 Midterms — at least in North Florida. That means the district represented now by U.S. Rep. Al Lawson, a Tallahassee Democrat, will be preserved.

“I am finding that the enacted map is unconstitutional under the Fair Districts amendment,” Smith said from the bench.

But Smith acknowledged his order, once released, will likely be appealed by state officials immediately. An appellate court could issue a stay on the decision, and it’s possible Smith’s order will be fast-tracked to the Florida Supreme Court or U.S. Supreme Court for review. Democracy Docket, a group run by plaintiff attorney Marc Elias, suggested Smith’s order will be paused during the appeal.

The decision from a judge initially appointed to a county bench by Republican Gov. Rick Scott and later to the circuit court by DeSantis, struck a blow to DeSantis, who earlier this year vetoed a map approved by the Legislature.

DeSantis has argued the makeup of Lawson’s district violates the equal protection clause of the U.S. Constitution because it was drawn in a way primarily motivated by race. After the Governor’s veto, the Legislature met again in a Special Session and approved a map (P 0109) drawn by the Governor’s staff. That one dismantles Lawson’s district and spreads almost 370,000 Black voters into surrounding North Florida districts.

But Lawson’s district was originally implemented by the Florida Supreme Court in 2015, and Smith said he’s not prepared to say the high court erred in its ruling.

Smith said that map clearly diminishes the ability of North Florida’s Black communities to control a congressional election. While the benchmark district represented by Lawson is 49% Black, the resulting North Florida districts in the DeSantis map have between 12% and 25% Black makeup.

“I do find persuasive the arguments that were made about the diminishment of African American votes,” Smith said.

Lawson praised the decision and expressed optimism future courts will agree with Smith.

“I am pleased by the 2nd Judicial Circuit Court order to overrule DeSantis’ unconstitutional congressional map,” the Tallahassee Democrat said. “The judge recognizes that this map is unlawful and diminishes African Americans’ ability to elect representatives of their choice.”

Smith wants officials using a map drafted by Harvard professor Stephen Ansolabehere submitted for consideration Tuesday night. Plaintiffs in a lawsuit challenging the DeSantis map called for the courts to immediately issue an injunction against its implementation for the Midterms, but limited the ask to North Florida. That means other controversial cartography in Tampa Bay and Greater Orlando will likely stand.

The submitted map from Ansolabehere preserves most of DeSantis map, but borrows North Florida cartography from a fallback map (H 8015) passed by the Legislature during the regular Session. The Legislature tried to pass a compromise that addressed DeSantis’ constitutional concerns while keeping a Duval County-only Black access seat. But lawmakers expressed a concern that courts would throw that out. A map that preserved a district analogous to Lawson’s current jurisdiction was offered to courts in the event the primary map was rejected.

The Ansolabehere map has 19 seats where voters favored Republican Donald Trump in the 2020 Presidential Election and nine won by Democrat Joe Biden. By comparison, the DeSantis map has 20 Trump seats.

The judge asked for a cleaned-up version of the map to be filed as soon as possible with his office because he intends to issue a written order on Thursday. “That’s absolutely my goal and it doesn’t matter how much coffee I’ve got to drink to make it happen,” Smith said.

Smith made clear his decision is based on evidence as presented to date, and a full trial will unfold before any final ruling on the full map will be handed down.

During the Wednesday hearing, attorneys for Black Voters Matter and other plaintiffs sought only to make the case Florida’s 5th Congressional District violates the constitution, though the underlying lawsuit argues against the entirety of DeSantis’ map. Representatives from groups said timeliness played into the decision to only seek an immediate remedy in North Florida.

Plaintiff attorney John Devaney suggested in court that the limited time to debate the map may be by design. It took three weeks between DeSantis’ veto of the map for a Special Session to take place.

“The possible gamesmanship about timing should not prevent Florida voters from having their constitutional rights protected,” he argued.

But Mohammad Omar Jazil, an attorney for the Secretary of State’s office, argued uncertainty about the congressional map looms now over elections officials in every impacted county. He also said courts in Tennessee, Illinois, Maryland and Texas have all ruled maps, even ones that are legally contested, should not be swapped out so near to an election. Florida’s state Primary is scheduled for Aug. 23, but candidate qualifying for congressional races starts on June 13. Election officials in Columbia and Duval counties asserted in court statements they need a map by the end of this month.

Jazil also leaned into DeSantis’ complaints about racially drawn districts. He said the Lawson district, regardless of whether the Florida Supreme Court implemented it, clearly was drawn with race in mind. The result is a 200-mile district he said cannot meet strict scrutiny requirements because it collects Black voters with little else in common from a wide swatch of the state. Moreover, despite including everywhere from Florida A&M University in Tallahassee to Florida’s only majority Black county and the Black neighborhoods of west Jacksonville, the district still falls short of being 50% Black.

Any configuration of CD 5 that connects disparate Black communities 200 miles apart will eventually be found in violation in federal courts of violating the 14th Amendment of the U.S. Constitution, state attorneys argued. “What we have then, is the non-diminishment provision of the Florida Constitution running smack dab into the equal protection clause of the federal Constitution,” Jazil said.

The Ansolabehere map that leaves such a seat in place, Jazil argues, will prove to be a disservice to voters.

“The plaintiffs are responding by saying the cake is delicious,” he said. “It’s got wonderful frosting, It comes with a cold glass of milk. But at the end of the day, Your Honor, it’s still half baked cake. You don’t need to eat it.”

But Jasmine Burney-Clark, co-founder of Equal Ground, said Smith’s ruling vindicates concerns of minority advocacy groups. Her organization is one of the plaintiffs behind the state lawsuit.

“When government overreach tries to suppress Black voters, the courts are our last line of defense to preserve justice and equity,” Burney-Clark said. “With today’s decision, we see Judge Smith stating what we have been saying from day one, the Governor’s maps diminish the voting power of Black Floridians violating the Florida Constitution. No Floridian — including Governor DeSantis — is above the law. This is one step forward in the fight to protect Black voters, and we will keep doing everything in our power to ensure our voices are heard.”