Senate argues judge who tossed Florida map wrongly saw it as ‘cross-claim of racial gerrymandering’

TALLAHASSEE, FLA. 4/20/22-Sen. Manny Diaz, Jr., R-Hialeah, left, looks at the congressional redistricting map the Senate later approved, while debate on the bill proceeds, Wednesday at the Capitol in Tallahassee. COLIN HACKLEY PHOTO

A Florida Senate attorney says a judge wrongly analyzed Florida’s defense of its congressional map as a “cross-claim of racial gerrymandering.”

In a court filing, Florida Senate attorney Dan Nordby argued Leon Circuit Court Judge Lee Marsh wrongly ruled the map used in last year’s elections violated Florida’s Constitution. He filed a brief in the 1st District Court of Appeal on Oct. 5 that suggested the judge looked at the defense of the map through the wrong legal lens.

“The trial court appears to have considered the Legislature’s defenses as though they represented an unpleaded counterclaim or cross-claim seeking a determination that an unenacted congressional district should be stricken as a racial gerrymander,” Nordby wrote.

The legal arguments regarding Florida’s congressional map largely focused around a North Florida district. The Legislature last year initially sought to keep a district spanning from Tallahassee to Jacksonville largely intact. That district, enacted by the Florida Supreme Court in 2015, included Black communities from Gadsden to Duval counties. Voters there elected U.S. Rep. Al Lawson, a Black Democrat, to Congress over three election cycles.

But Gov. Ron DeSantis decried the jurisdiction as an “unconstitutional gerrymander.” That prompted the Legislature to create a new map reimagining the North Florida district as a Duval County-centered seat where Black voters would usually determine an election outcome. But DeSantis vetoed that plan as well.

Ultimately, DeSantis’ Office submitted a plan that deconstructed the Democratic district and left only majority-White, majority-Republican districts in North Florida. The Legislature approved the map during a Special Session, and it was enacted for the 2022 election cycle.

Marsh in September determined the map wrongly diminished the ability of Black voters in North Florida to elect a Representative of their choice. Attorneys for the state appealed the ruling. Appellate judges plan to rule on the matter before Nov. 22.

Attorneys for the Legislature and Secretary of State Cord Byrd continue to defend the map, but employ different arguments to do so.

Byrd’s Office alleges the Fair Districts amendment, approved by voters in 2010, wrongly demands lawmakers consider race because of the non-diminishment language, forcing the state to violate the equal protection clause of the U.S. Constitution. Mohammad Jazil, representing Byrd, argued the Florida Supreme Court never should have created the old Lawson district in the first place, and has argued the requirement itself is unconstitutional.

“The 2016 Plan is not a valid benchmark,” Jazil wrote in his brief to appellate judges. “It contains an unconstitutional racial gerrymander.”

Notably, DeSantis Acting Chief of Staff Alex Kelly, who drew the map the Governor signed, said the same thing in a federal trial about the map last month, arguing state Supreme Court justices ruled wrongly in 2015, though he could not point to any case law to verify that interpretation.

Attorneys for the Legislature maintain the Fair Districts amendment isn’t unconstitutional, but must be considered against other restrictions. In circuit court, they said equal protection clause concerns outweigh demands put in place by the state constitution. That meant initial plans to preserve the North Florida seat had to be put aside.

“No other district in the Benchmark Map raises the same equal protection concerns,” Nordby wrote. “Other districts that the Florida Constitution protects from diminishment were redrawn without elevating race to a predominant position and subordinating race-neutral districting principles.”

While Nordby at the state of the redistricting process advised Senators to keep all minority-performing districts largely intact, he now adopts DeSantis’ negative view of the North Florida seat.

“The district resembles a dragon spreading nearly the entire length of the Florida-Georgia border,” Nordby wrote in a brief, “with its head resting along the St. Johns River in Jacksonville, its haunches extending West to Chattahoochee and the Apalachicola River, and its forked tail curling back to the East into portions of Tallahassee’s southside, with one spike protruding North to the intersection of Thomasville Road and Interstate 10 and another East down Apalachee Parkway beyond Chaires Cross Road.”

Of note, plaintiffs challenging the map argued during the hearing before Marsh that the state’s entire defense of the map relied on arguing against a prior map. Attorney Abha Khanna, representing Black Voters Matter Voting Capacity Institute and other groups, asserted Lawson’s district was not on trial. She stressed the Legislature never passed a map this year with the old makeup of the Lawson seat as a primary map.

While the Legislature passed cartography with a Tallahassee-to-Jacksonville seat, it was only offered as a backup for courts if judges determined the map with a Duval-only seat to be in violation of the state constitution.

“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 in a September hearing.

Nordby maintains the only way to meet the non-diminishment standard in the state constitution is with a seat similar to Lawson’s old district.