Fentrice Driskell confident federal court will reject Florida’s congressional map

TALLAHASSEE, FLA. 5/5/23-House Democratic Leader Rep. Fentrice Driskell, D-Tampa, talks with the media after the close of the 2023 session, Friday at the Capitol in Tallahassee. COLIN HACKLEY PHOTO

Florida lawmakers over the past decade fought, sometimes unsuccessfully, to avoid discussing the redistricting process in court. House Democratic Leader Fentrice Driskell, however, welcomed the chance to testify in federal court.

“I thought it was important to testify what it was like to go through the process as a lawmaker,” Driskell said, “and to just speak some truth about how the process evolved and changed once Gov. (Ron) DeSantis got involved.”

Driskell testified this week in front of a three-judge panel as minority advocates challenged the congressional map signed by DeSantis — and designed by his staff.

Driskell served on the House Redistricting Committee and played a leadership role within the Democratic caucus throughout the decennial process of drafting new legislative and congressional district lines.

By Driskell’s telling, the process started out focused on adhering to the law, but ran off the rails the more DeSantis worked to influence the outcome.

That culminated with DeSantis vetoing a congressional redistricting plan driven by the House and approved by the Republican-controlled Legislature. The Governor then demanded state lawmakers approve cartography drawn by Alex Kelly, now the Governor’s Acting Chief of Staff, in a Special Session.

“It’s interesting to look back at the first meeting we had,” Driskell said. “The process Chair (Tom) Leek laid out was very much to follow the law and have a strong legal foundation. That felt more transparent, and while it was not a perfect process, there was a sense we were all in this together.”

Importantly, Democrats and Republicans never were. When the House ultimately passed a legislative map governing House races for the next decade, it only ever picked up one Democratic vote in committee and had no Democratic support when it passed.

The same is true of a congressional plan passed in the House over the Governor’s objections — he alleged the map racially gerrymandered a district in North Florida — with Democrats opposed and claiming the map failed to provide enough voting power to Black and Hispanic voters across the state.

But Driskell said there’s a difference between the policy disagreement House Democrats maintained regarding the maps drawn by the Republican Legislature and the one later produced by DeSantis’ staff.

Driskell believes the Legislature’s original maps fell short of providing appropriate opportunities for minority communities but did not violate the Florida Constitution, which forbids redistricting that diminishes the ability of racial minorities to elect representatives of their choice.

By her assessment, she even considers the primary congressional map approved by the House, which attempted to assuage DeSantis with a more compact Northeast Florida congressional seat, would have met tests of the law.

“It would probably still perform and be constitutional,” she said. “It still had all the same problems as the DeSantis map in that it cuts out voters in Gadsden and Leon and other communities. Gadsden County is the only majority-minority (county), and how dare the Legislature try and silence the voice of those voters.”

So she felt it was worth a “no” vote, but not unconstitutional.

But she said that changed when the Governor’s staff clearly and intentionally sought to eliminate a minority-performing district. For that reason, she feels fairly confident the federal court will find the map discriminated against Black voters.

“Because of the way the Legislature just gave up and acquiesced to the Governor, showing they were willing to go along with what he wanted, what that did was to strip away voices of Black voters,” Driskell said. “I don’t want to say racial animus. I can’t tell you what is in people’s hearts. But the result is to strip the voices of Black voters and to suppress their ability to elect a representative of their choice.”

DeSantis, for his part, has argued retaining a district like one enacted by the Florida Supreme Court in 2015, spanning from Gadsden to Duval counties, violated the U.S. Constitution’s equal protection clause.

He’s not the only one who feels the district couldn’t meet the court standard of “strict scrutiny.” The state subpoenaed experts including Dr. Douglas Johnson, president of the National Demographics Corporation, and Dr. Mark Owens, a University of Texas professor. They said Florida lacks the history of discrimination against North Florida’s Black communities or concentration of Black communities to justify racial gerrymandering for a district where Black voters are given the power to control an election.

Driskell considers it a tell that the Republican Legislature initially felt otherwise, although attorneys for the House and Senate now defend the Governor’s map.

But she said the equal protection argument makes the state’s defense of the map especially offensive. That language comes from the 14th Amendment to the U.S. Constitution, passed in the wake of the Civil War and intended to prohibit denial of former slaves’ rights anywhere in the union. She takes offense that the Governor relies on that language to argue the state not only can, but must, strip electoral power away from Black constituents.

“That is a twisted and legally perverse way to look at the equal protection clause,” she said, “a way to use it as a weapon against the very people it was designed to protect.”

But she doesn’t expect the Governor’s argument to sway judges. Driskell expects judges in this case to send the map back to the Legislature for another attempt at approving legal cartography.

“In a greater legal context, gratefully the courts have been rejecting maneuvers by conservative Legislatures and Governors across the country who try to take access away from Black voters. Courts have rejected it every time.”

The U.S. Supreme Court rejected that argument when Alabama passed its own congressional map, and federal courts just this week approved a new map with one more Black majority seat than the Republican Legislature and Governor there approved.