Judge blasts argument that Florida Fair Districts requirement violates U.S. Constitution

A Leon County circuit judge scoffed at state arguments that a former congressional map approved by the Florida Supreme Court was unconstitutional. But he will weigh over the next week whether the map in place needs to be kicked back to lawmakers.

Circuit Court Judge Lee Marsh gave attorneys until next Wednesday to submit legal arguments in an ongoing redistricting case.

Minority groups challenging the map signed by Gov. Ron DeSantis argue it illegally diminished the power of Black voters in North Florida. In a stipulation agreement, attorneys for the state already conceded as much, but they argue that’s only because a prior map unreasonably crafted a district primarily, and unconstitutionally, motivated by race.

The litigation unfolds more than a year after DeSantis vetoed a redistricting plan passed by the Florida Legislature. DeSantis had railed publicly against the existence of a district, put in place in 2015 by the Florida Supreme Court and represented for six years by Black Democrat Al Lawson, that he called an “illegal gerrymander.”

The Legislature tried to accommodate those concerns with a map that aimed to preserve a Black-performing district in North Florida, but also offered backup cartography that kept a district like Lawson’s in place in case courts found the change violated provisions of the Fair Districts amendment in Florida’s Constitution.

The measure, approved by voters in 2010, prohibits redistricting in a way that reduces existing opportunities for Black voters to elect a Representative of their choice in Congress.

Ultimately, DeSantis’ Office submitted a redistricting plan that left no minority-controlled districts in North Florida. That left all North Florida’s congressional districts as White-majority and Republican-leaning seats. Lawson in November lost re-election running against GOP incumbent U.S. Rep. Neal Dunn in a Tallahassee-centered district.

Attorney Abha Khanna, representing Black Voters Matter Voting Capacity Institute and other groups, said the courts need to toss the existing voting map. She said it’s incumbent on the Florida Legislature to pass a map that preserves a minority-controlled district in North Florida.

“The court has in front of it everything it needs to find on the non-diminishment claim that is actually the subject of this litigation,” she said.

Attorneys for the state, though, maintain that the only way to satisfy the non-diminishment standards would be to restore a district similar to Lawson’s. But doing so would violate the equal protection clause in the U.S. Constitution, they say.

“We’re being asked to take the race neutral map, the active map, and insert in there a race-based district,” argued Mohammad Jazil, the attorney for Florida’s Secretary of State Office. “At this point, how do we do that?”

Marsh recoiled at the argument that Florida could not comply with the non-diminishment standards without violating the U.S. Constitution. He noted the Florida Supreme Court had ruled nearly a decade ago that the state must comply with the Fair Districts amendment, and no one argued then that doing so would violate the U.S. Constitution.

He also voiced frustration that so much of the state’s defense of the existing map involved questioning the validity of one in place for half a decade.

“You’re saying the Florida Supreme Court violated the U.S. Constitution in doing what it did,” he said. “I’m not going there. I don’t think I have the power to say the Florida Supreme Court got it wrong. That’s their business.”

Attorneys for the Legislature said that’s not true. Rather, Florida House attorney Andy Bardos argued, courts could determine in the instance of the North Florida district, the federal limit against drawing a district motivated primarily by race trumped the non-diminishment restrictions in the state constitution.

He compared it to prior court guidance that requirements to protect minority voting power overrule demands for districts to be compact.

“That reflects, your honor, the complexity of the task of redistricting,” Bardos argued in court. “As the U.S. Supreme Court has said, redistricting is not easy.”

Khanna said the state is now making it out as harder than it is. The Legislature produced two maps, one preserving a district like Lawson’s and one creating a Jacksonville district that would elect a Black Democrat most of the time, which lawmakers at the time argued would adhere to Fair Districts requirements.

She also argued that any talk of Lawson’s district was a distraction. Plaintiffs want the current map thrown out, she said, and anticipate courts sending it back to the Legislature to draw something new. Only if the state failed to produce a legal map again would it fall on courts to produce a map, as occurred in 2015.

Khanna suggested adopting the state’s argument would, in effect, challenge not only existing Florida Supreme Court guidance on Fair Districts but open the door to invalidating the federal Voting Rights Act of 1965.

She suggested DeSantis demanded the current map while presuming a conservative U.S. Supreme Court would rule in favor of other Southern states, and would determine the Voting Rights Act does not require minority access seats.

But in June, the U.S. Supreme Court instead ruled Alabama had violated the Voting Rights Act by producing only one majority Black seat. Marsh had said earlier in court proceedings that he had awaited guidance from that case before ruling on Florida’s redistricting process.

The agreement to many facts of the case means there won’t be a full trial, and that appeals of any decision Marsh makes will be fast-tracked to the Florida Supreme Court. The judge bemoaned that going this route meant a far thinner body of evidence for higher courts to consider. Still, he wrapped up a four-hour hearing asking for all sides of the case to present final arguments by the close of business on Wednesday, Aug. 30, and hinted he could rule as soon as Sept. 1.