Issue #141: Redistricting Insanity from the Florida Appeals Court

Were they drunk?

As longtime readers of my newsletter will know, Florida is currently in the middle of a redistricting lawsuit over its Congressional map. The lawsuit focuses on the elimination of the Tallahassee-to-Jacksonville 5th Congressional district. The seat in question, drawn in 2015 by the Florida Supreme Court order, connected North Florida’s black population.

While often discussed as a Tallahassee and Jacksonville seat, it also includes black voters across the rural corridor. During the initial 2022 redistricting process, lawmakers intended to keep the district in place. Below is how a State Senate-passed proposal for CD5 looked, with black primary voters laid under.

As most of you know, DeSantis would eventually veto the maps and a new plan that cracked black voters across several districts passed. As a result, North Florida had no performing black district for the first time since the 1980s.

Those of you not from this area may look at these lines and legitimately go “hey yeah wait is that long district really warranted?” Here history is important, and I highly encourage you to look at my 2022 article where I delved into the history of North Florida redistricting and how we ended up where we are

The History of the Florida 5th

There is so much history here, not just from lines, but from legislation, constitutional amendments, and court orders. Here is a “quick” summary of events that lead us here.

• In 2010, Florida voters passed Fair Districts, which protected minority voter seats that performed, not just 50%+ districts that the VRA covers. The measures also ban political gerrymandering and have compactness requirements.

• In 2015, the Congressional maps passed in 2012 were struck down for racial and political gerrymandering. The remap moved the 5th district from a Jacksonville to Orlando seat to a Jacksonville to Tallahassee seat. The overall map gave both parties more opportunities, with fewer SAFE districts

• Heading into 2021, even though the Florida Supreme Court was by then more conservative thanks to retirements, the lawmakers did not want extended trials, and appeared to desire a “least change” approach

• The Senate passed a Congressional map that conservative activists hated. The map was very balanced and kept the 5th in the same Tallahassee to Jacksonville style. The House map had more gerrymandering in Tampa and Orlando, but also aimed to keep the 5th as it was in North Florida

• In January of 2022, Ron DeSantis offered his own proposals, which were very gerrymandered. They destroyed the 5th district, cracking the black population of North Florida. The final proposal would be 20 Trump seats and 8 Biden seats.

• Lawmakers pushed back for some time, but a compromise plan passed was vetoed by the Governor

• In a special session, facing threats of vetoes and primaries, lawmakers caved and passed Ron’s proposal. The session ended with several members of the black caucus staging a sit-in.

• A lawsuit was filed, and while a judge ruled the new map violated black voter protections in North Florida, the ruling was stayed pending appeal and the clock ran out for 2022.

This was where we were heading into 2023.

The Stipulation Agreement

The initial lawsuit over the map focused on more than North Florida. However, in the fall of this year, the state and the plaintiffs agreed to a stipulation agreement. In it, the case was narrowed to the North Florida area, with the elimination of the east-west 5th being at question. Read this here for more legal details from my newsletter.

The summary of the stipulation agreement for North Florida was as follows

• The East-West 5th, aka “the benchmark” did perform for black candidates

• The elimination of the 5th was legally retrogression under Florida’s 2010 Fair Districts Amendments (FDA)

  • Retrogression means the elimination of a minority-performing seats, something banned by the FDA and FL Supreme Court precedent

• The legal question to be decided was if the FDA’s rules against retrogression violated the US Constitutions equal protection provisions (which would ban drawing crazy-districts that only connect voters by race and nothing else)

The hearing with Judge Lee Marsh In September would then be entirely about if bringing back the 5th would violate federal law. In making it clear that the old 5th was a minority-performing seat, the court looked at the functional analysis that the Florida courts have long used. The functional analysis for the old 5th was

• The district was around 46% black voting-age population

• The district was overwhelmingly Democratic, not just by registration but by partisan performance at the top of the ticket.

• The Democratic primary, which is tantamount to election, was at this point around 70% black, meaning black voters control the primary.

• In practice, the district performed for black voters.

This method of analysis helps determine if a seat is protected despite not being 50% minority. Many districts in Florida at the Congressional and legislative level operate as minority seats this way, not by being over 50%+.

In his ruling, Judge Marsh rejected the state’s arguments against bringing back the 5th and ruled for a redraw of North Florida. You can read that breakdown here.

Appeals Court Nonsense

The stipulation agreement laid out that the losing party would aim to appeal a ruling directly to the Florida Supreme Court and try and get a ruling by the end of the year. The state appealed as expected, but instead of it going to the Supreme Court, the 1st District Court of Appeals insisted on hearing the case.

The oral arguments before the appeals court showed the justices had little interest in abiding by the stipulation agreement. Instead, the justices, who lean heavily conservative, sought to question the data in the stipulation agreement and even reject former court precedent. Lawyers for both the state and the plaintiffs expressed clear confusion at the line of questioning by the justices. It did not set a positive tone. Finally on Friday, the court announced that it was overturning Judge Marsh’s ruling.

The ruling is, with all due respect, completely insane. It rejects countless precedents and comes off as something written by a conservative zoomer on twitter that has a avatar of Strom Thurmond and rails about one day repealing the Voting Rights Act.

I’m going to get into some specifics, but I cannot stress enough that you should re-read my newsletters on the stipulation agreement and Marsh’s ruling for a refresher on the laws and precedents at play.

Court Ignores Community Ties

What is really notable is the contempt for the arguments the majority of justices display regarding the data laid out in the stipulation agreement and initial rulings. The data in question highlighted that from 2015-2020, the east-west 5th performed for black voters, and that no current North Florida districts did the same.

One passage from the ruling really stands out.

The parties stipulated to several purported facts regarding voters in former CD-5—essentially, just cold statistical information about Black voters generally.

The court dismissed the data in front of them and relied on a more subjective claim that the black communities of North Florida are not connected by history or culture, but rather only lumped together for the purposes of creating a district.

Now, historically there is important precedent here. The courts have ruled districts drawn just to link racial groups and for no other reason are illegal gerrymanders. This is the equal protection issue that the stipulation agreement referenced. The VRA exists to ensure minority voters are not harmed by excessive cracking or packing. However, efforts to link any non-white voter to create a minority district must follow some geographic and historic logic. For example, this old CD3, which was drawn in 1992 by the courts to create a black-access seat, was eventually struck down by the US Supreme Court. I discussed this very district in my “History of the 5th” article.

This district is an example of the good intention of drawing a North Florida black seat going too far in creating a seat with no real community links. This is just a series of lines meant to gather one racial group - even though it was for a noble reason.

The appeals court clearly aims to paint the old CD5 in the same light. However, this glosses over the fact that black voters in North Florida do have historic ties via slavery.

Black voters from the Tallahassee region over to Jacksonville can trace their ties to plantations and later sharecropping. On top of this, many residents, especially in the rural communities, can trace ancestry back to the same village/county for centuries. As my Florida redistricting series highlights, black voters in the panhandle have been subjected to discrimination for decades. Redistricting pre-1992 often saw black voters cracked to avoid creating minority districts. Al Lawson, who’d win the old 5th in 2016, initially had to deal with black voters being cracked in state house lines in 1982. I delved into that in my Al Lawson Electoral History article.

The claim the North Florida black community has nothing to tie it together is objectively wrong.

Court Rejects Non-Diminishment Precedent

Again to quickly review, in previous Florida Supreme Court decisions, the court looked at the issue of non-diminishment and functional analysis. Time after time, the Florida Supreme Court laid out that if a district performed for a minority community via its primary and/or general elections, then it was protected from being eliminated (retrogression). This precedent was the core for court case here over the 5th.

However, the appeals court took the extraordinary step of declaring that those original redistricting rulings were NOT precedent because they were advisory opinions and not part of a regular trial/appeal process. The most critical point that fuels the push to bring back the old CD5 is the state’s non-diminishment rules as laid out by these Supreme Court opinions. The appeals court, however, rejects that precedent itself.

The appeals court goes on to say that this standard from the Florida Supreme Court was wrong because, as they saw it, past districts may have just been drawn to create minority seats and were not part of natural geographic bases. The appeals court essentially argues that some previous minority seats are legit because they are compact, but that other seats may not be legit (based on their own views I guess). This goes back to the issue of the appeals court viewing some minority seats as ill-legitimate despite no court striking them down.

It should be noted that back when that crazy-looking CD3 was struck down, the court still ordered a black-performing seat. Just because one or several seats is viewed as unconstitutional, doesn’t mean a mandate for minority representation is. When the old CD3 was struck down, a new minority-performing seat was drawn in its place, with less crazy lines.

And it should be noted, the old CD5 from 2015 was NEVER struck down. The appeals court acts, however, like it was, and therefore that its benchmark nature should not be used to determine if retrogression was happening

• Long story short - the court tries to say “there was no retrogression because that old 5th was an illegitimated seat so its not a benchmark so in reality Florida had no minority performing seat anyway”

The appeals court also continues to reject the notion that the old CD5 was a proper benchmark to be looked at. It insists the district only existed because of its lines and not a geographically compact, naturally occurring minority community.

Now again, there is value in this distinction. That spider-web CD3 from 1992 definitely should not be used as a benchmark. But as I have discussed, the East-West CD5 does have a community link. On top of this, lets not forget several seats in Florida have odd lines that aim to meet racial mandates. For example, here is the 20th Congressional seat, which connects black voters in Palm Beach and Broward. It connects them via empty Everglades land.

This district connects two communities with little clearly in common. To be clear, I SUPPORT these lines, as they exist to ensure the black communities of these two counties can unite and elect a candidate of their choice.

But while the appeals court rejects the old 5th, it ignores the fact that the east-west 5th matches just fine with other district lines in the state that draw lines with the goal of creating minority seats. To me, the 20th and the old 5th would be example of race-conscious plans, which aim to link minority communities but also aim to keep different cities and neighborhoods together. Read my stipulation agreement newsletter for more on that “fine line” of drawing district borders and factoring in race.

This opinion from the appeals court is dangerous because there are also plenty of legislative districts that use the non-diminishment and benchmark principles that the appeals court is now undermining. You can see what legislative districts I’m talking about here.

Appeals Court Tries to Re-Write Fair Districts

The appeals court also went further to aim to dismiss the issue of non-diminishment. This requires an important clarification from me, because the law can get muddled.

• In Florida’s 2010 Fair Districts Amendments, the drafters of the language added non-diminishment, the provision that says a performing minority seat (regardless if its 50%+ minority) is protected. BEFORE Fair Districts, the state was governed largely by Section 2 of the VRA, which only protected 50%+ minority seats. Fair Districts therefore expanded minority voter protections.

• This language also shows up in Section 5 of the federal Voting Rights Act and was in fact the inspiration. Section 5 was the provision of the VRA that required certain jurisdictions to get their changes pre-cleared: a mandate that has since been struck down.

• However, Florida’s Fair Districts amendments took that non-diminishment provision and said “lets apply that to the whole state, forget about the old pre-clearance stuff.” The voters passed that, and the FL Supreme court affirmed that non-diminishment is the statewide rule in Florida. The pre-clearance fight has nothing to do with it.

In 2012, the Florida Supreme Court affirmed that the non-diminishment standards from FDA (and inspired by Section 5 of the VRA) applied statewide. You can see highlights of those opinions in my 2012 Redistricting History article.

So what did the appeals court do? They ruled that since Fair Districts copied over the non-diminishment part of Section 5, but nothing about pre-clearance, then the non-diminishment provisions in FDA doesn’t actually apply!

The appeals court basically said that the previous Supreme Court opinion was wrong or doesn’t apply now - a bold and legally-nonsensical conclusion.

After rejecting the precedent of the earlier courts and the non-diminishment language, the appeals court turned to seeing if CD5 was protected under Section 2 of the VRA. The North Florida CD5 was never majority-black, but rather black-performing. Again, CD5 is protected under Fair Districts, not Section 2 of the VRA. So low and behold, after spending time discussion Section 2, the court found the old 5th was protected under that either.

Conclusion

This was a completely insane ruling. The decision disregarded the Stipulation Agreement that all sides backed and aimed to completely re-write precedent instead of just rule on equal protection issues. The decision has already been appealed. However, a timeline on a hearing from the Florida Supreme Court is unclear, and if they don’t hear the case then the ruling will stand.

The chances of an order for a more detailed trial (disregarding the stipulation agreement) is possible. I do not want to pretend to know for sure what will happen. The more conservative Florida Supreme Court would no doubt like to chance some of the old court’s precedent, but they likely won’t like an appeals court just taking a hatchet to top-court orders. We will see what happens.

To sum all of this up……