Issue #248: The Florida Supreme Court Fatally Weakens Fair Districts
Court gives a big middle finger to North Florida's Black community
(Author note: This article is longer than what will likely show up in your email inbox. Click the article title to be taken to my substack page to read the full story there. This article covers a very important topic, and hence is very long. While everything is in one page, I have broken it down into four sections, allowing for easy areas to stop on and pick up later if desired. Part 1 is history. Part 2 is the 2022 redistricting fight. Part 3 is court cases. Part 4 is the Supreme Court ruling. You can read it all at once or piece by piece at your own leisure. Enjoy!)
On July 17th, the Florida Supreme Court, after NINE MONTHS of delay, finally released their ruling on Florida’s Congressional map. For those who do not remember, this was a case revolving around the dismantling of the Black-performing Florida 5th Congressional district by the 2022 DeSantis gerrymander. Plaintiff’s sued the state, arguing that the elimination of a Black-performing seat in North Florida violated Florida’s Fair Districts rules. While originally centered on several districts, the case ultimately narrowed to the specific issue of Black voters in North Florida having a district they could elect a candidate of their choice in.
While case law, and basic common sense, is in favor of the plaintiffs; many, including myself, were nervous the far-right court would abandon precedent and rule in favor of the state. The modern court is made up of five DeSantis appointees and two Charlie Crist appointees; resulting in a court far more conservative than the one that handled previous redistricting lawsuits. Sure enough, the ruling came down 5-1 in favor of the state, with all DeSantis appointees affirming the elimination of the 5th Congressional district. The result is that for the first time since 1992, there is no Black-performing seat in North Florida.
The Supreme Court ruling is sad but not shocking. For this article, I want to lay out the history of how we got here and what this ruling means. History is an important factor in redistricting case law, so I am going to take us from the 1990s into the present day. In the context of history, this court ruling is not just a bad redistricting law, it is blatantly racist and callous toward North Florida’s Black community.
Lets dive in.
Part 1: The Long Road Here
Since 2021, I have written approximately 100,000 words on Florida’s redistricting drama and history. This includes tens of thousands of words on the pre-2022 redistricting fights and tens of thousands on everything that happened in the last few years. If you have been following me for a long time, you may well have read all of this. However, I know many of you are new subscribers, so I wanted to be sure to give you the bare bones before getting into the court ruling, so that even if you have not followed this saga closely, you will have the understanding about what is going on.
If you’d like to read Florida’s entire redistricting history, from statehood to Present day, check out my 10-Part Florida Redistricting History series here
This series includes many detailed breakdowns of court cases and lawmaker debates, so go there for expanded details on what I will summarize below
If you want a more detailed breakdown of the 2022 redistricting fight that Florida underwent, from the first draft maps in 2021 up to the FL Supreme Court’s oral arguments last October, then I highly recommend reading my Issue 200; which not only gives a fitting narrative of the fight, but links to other articles for further reading.
Below I will offer up some important history that is specifically focusing on North Florida.
North Florida Black Voters
This section will be a shorter version of a much bigger article I wrote back in 2022, which documented the long history of racial redistricting debates in North Florida. Check that article out for far more details on maps and court cases.
While Florida is not culturally regarded as a “southern state” most of the time, Florida’s northern counties are culturally much more similar to the deep south of Georgia or Alabama than they are to, say Miami. Several of the Northern counties stretching from Marianna to Jacksonville have a sizeable Black minority; largely a product of slave cotton plantations that once dotted the Big Bend. To this day, many of the Black residents of North Florida, especially in the rural communities, can trace lineages back to the plantation and the sharecropping that followed.
After the end of reconstruction, Florida, like many southern states, entered Jim Crow, which suppressed Black voting. While Black residents would achieve the vote in Florida easier than in Alabama or Mississippi, there were still limits to Black political power. Florida Democrats showed little interest in drawing legislative or Congressional districts in the 1970s or 1980s to accommodate Black voters; with no Congressional seat passed in 1982 having a Black-performing seat.
It would not be until the 1990s redistricting battles that Black voters in Florida would finally get representation in Congress. The 1982 Voting Rights Act amended Section 2 of the 1965 law to set a standard known as the “results test” - meaning that if a redistricting map limited the power of a racial/language minority, even if not intentional - it was still illegal. Lawmakers could not hide behind an argument of being “racially blind.” Then in 1986, the Supreme Court gave its precedent-setting ruling in Thornburg v Gingles. In the majority opinion, the court laid out three conditions for future plaintiffs to use for lawsuits under Section 2 of the VRA.
The racial/language minority is large enough and compact enough to make up a majority of a single member district
Note: A final district would not NEED to be 50%+ minority, it could be less, as long as data showed that minority community would still likely elect a candidate of their choice
Courts have called these anything from “minority-performing districts” to “ability to elect districts”
The minority group is politically cohesive (aka they can/do vote as a block)
The majority racial block often votes as a unit to deny minority candidates victory in elections.
Example: In much of the deep south, white residents have been shown to be resistant to voting for candidates supported by Black residents
With a sizeable Black population in North Florida, coupled with racially polarized voting from the white majority, Florida was going to need to draw Black-performing seats in its 1992 redistricting session. Ample data was showing white voters would resist Black candidates. The 1980s and 1990s would see several county commissions in North Florida be divided into single-member districts in order to give Black voters the ability to elected candidates of their choice within local government. The drama of racially polarized voting in North Florida can be read about in my article on Liberty County.
While the mandate was clear, Florida’s legislature, with a shrinking Democratic majority, could not come to an agreement on maps. White Democrats, who spent much of the 1980s cracking Black voters to shore-up seats, struggled to implemented the VRA along with their own partisan desires; especially as several lawmakers sought to run for Congressional seats. That drama can be read about in great detail here. Long story short, no Congressional maps could be agreed to. As a result, a court drew the 1992 Congressional plan; which created 3 Black-performing seats; two in South Florida and one in North Florida.
In North Florida, the court-picked map had the 3rd Congressional district, which was 50.1% Black and looked like…. this.
These lines were picked by the court as a way to unite as many Black voters in the Northeast Florida region as possible. However, the lines showed no logic besides race. This reflected the type of lines we saw in many parts of the American South in 1992. I discuss this more in my 1990s history piece, but new technology coupled with federal mandates led to lines designed to fulfil said mandate, but showed no logic otherwise.
In 1993, the Supreme Court case of Shaw v Reno struck down North Carolina’s Congressional map due its similarly bizarre districts. While the court affirmed the importance of minority representation, it ruled districts could not only be explained by race alone.
“a reapportionment plan may be so highly irregular and bizarre in shape that it rationally cannot be understood as anything other than an effort to segregate voters based on race”
The case set up the important distinction of race predominance vs race consciousness in redistricting. Yes race could be a consideration in line drawing, but it could not be the only driver.
Race predominance is when a district’s lines can only be explained by race, which if you look at the Florida 3rd you can definitely imagine
Race conscious plan is one that does consider race, and districts are partly shaped by that, but the district also follows other natural geographic markers, like county lines or noted geographic dividers.
The ruling cited the Equal Protection Clause of the 14th amendment as the basis for the ruling. Future cases around the issue of race predominance often reference the Equal Protection clause.
As a result of Shaw v Reno case, a federal court struck down Florida’s 3rd Congressional district in 1995 and ordered a re-map. The court did NOT say the legislature could avoid creating a Black performing seat. Instead it indicated more compact lines were needed. The legislature, made up of a Democratic House and Republican Senate, came to an easy agreement on a least-change map for North Florida.
The new 3rd would only go from Jacksonville to Orlando. The new district went from 50% Black to 42% Black, but it would continue to perform for Black voters. In 2002 and 2012, which saw Republicans control the redistricting process, the 3rd district, eventually re-numbered the 5th, continued its Jacksonville to Orlando configuration, albeit with differing shapes and layouts.
I cover all that in my redistricting history series. In 2002 and 2012, Republicans, who now controlled Florida government entirely, drew the district to increase the Black population, first to 46% then to 49%. Many saw this as Republicans working to syphon off Black voters from surrounding districts, especially in the growing Orlando metro. While Republicans claimed they were increasing to Black population to comply with federal mandates, others accused Republicans of “packing” voters for partisan benefit.
The Passage of Fair Districts
In 2010, Florida voters passed the Fair Districts Amendments, which set up new standards for Congressional and legislative redistricting. This was a response to the 2002 gerrymandering Republicans engaged in. The passage of these amendments can be read about here. Both measures got right around 63% of the vote.
The measures set up two tiers for redistricting regulation in Florida.
Tier 1 – Lines cannot be drawn to favor or disfavor an incumbent or party. Districts also cannot be drawn to diminish the ability of racial or language minorities to elect candidates of their choosing. Districts must be made up of contiguous territory.
Tier 2 – Districts must be compact, as equal in population as possible, and honor administrative boundaries when possible.
The amendments aimed to curtail partisan gerrymandering and create more compact districts. However, another key component was the non-diminishment provisions for minority-performing seats. The amendments added to the constitution a protection for seats that performed for a minority community, even if it was not 50% Black, or Hispanic, and such. Compactness was also considered secondary to concerns around non-diminishment.
The non-diminishment provision was a major expansion of minority protections. Under the 1982 Voting Rights Act, a district is only protected if a 50%+ minority seat can be drawn. If such a district could not be drawn, then it was not protected. Fair Districts, in essence, stated “even if you cannot draw a seat that is 50%+ minority, if that district shows minority communities can elect a candidate of their choice, it is protected.”
The Fair Districts Amendments, as interpreted by the Florida Supreme Court in 2012 (read History series Issue 7), laid out that there is no magic census number needed for a district to be a “minority performing seat.” The court relied on the precedent of “Functional Analysis” - which means to take the political implications of a district into account. This has been a longstanding practice in Florida. To sum up how it might work
A district is 40% Black via census data. However, because it is historically a very Democratic district and the Democratic primary is 65% Black, it is a functionally-Black seat.
A district is 55% Hispanic. However, due to registration rates being lower as well as voter turnout, only 30% of the general election voters are Hispanic. On top of this, neither party primary is over 25% Hispanic. This is not a functionally Hispanic seat.
Fair Districts meant that a district could be a protected minority seat if the political and racial data showed a minority community controlled the seat, regardless of the census figures. Right now, Florida’s legislative maps have several seats that are well under 50% Black, but are considered protected Black seats. Likewise we have several Hispanic-majority seats that are still not functionally Hispanic due to turnout and registration dynamics. If you’d like some examples, check out my Functional Analysis of Miami-Dade House draft house districts from the middle of the redistricting process.
Florida Republicans did not like the Fair Districts Amendments, and they were compelled to pass more compact maps that did eliminate some, but not all, Republican gerrymanders. History Issue 7 goes into far more detail on this.
The 2015 Remap
After 2012 maps were passed, the Congressional and State Senate maps were subjected to lawsuits. In 2015, Florida’s Supreme Court struck down the Congressional Plan as a political gerrymander in a 5-2 decision. This had come as Republicans were caught secretly planning how to submit maps via third parties and get around the anti-gerrymandering rules. That whole drama is seen in Issue 8 of my history series.
The court ruling ordered a full remap due to the “partisan taint” of the 2012 process. However, the case also mandated specific districts with clear problems.
Part of the ruling sited the 5th Congressional district, which the court found lawmakers had used to pack Black voters beyond what was needed and for partisan reasons. The court found the Jacksonville to Orlando lines were used to pack Orlando’s Black voters and create white Republican seats around it.
The court ordered lawmakers to look at an East-West configuration for the 5th. The court sited a proposal drafted by one of the plaintiffs as an example, but gave the legislature wiggle-room to refine lines. Lawmakers, however, went just with the district lines the court sited.
These lines were not perfect, and fairly jagged around Leon and Jacksonville. Efforts to smooth lines out were resisted by Republican lawmakers. Outside of North Florida, lawmakers would deadlock on a new plan due to disputes for other regions of the state; leading the courts would be forced to pick a plan.
The final map approved actually increased the number of Black-performing seats from 3 to 4. The moving of the 5th to an east-west orientation meant that Black voters in Orlando could exert their influence on their own. The 2016 election saw Val Demings elected from the newly-drawn 10th in Orlando, giving Florida four Black Congresspeople for the first time in history.
Longtime Congresswoman Corrine Brown, meanwhile, lost her primary in the 5th to former State Senator Al Lawson. Brown had been a long opponent of redistricting reform, treating her district as a person fiefdom. Forced into a new district, she was crushed by Lawson in the west end of the seat.
Lawson himself had initially managed election to the Florida House in 1982. His story of a Black candidate in the whiter parts of the the Florida panhandle is under-told in Florida. I looked back at his electoral career in this article.
Through the 2016, 2018, and 2022 elections, the final map performed for Black and Hispanic voters. Those results proved that the words of Justice James E.C. Perry were accurate
(This plan) increases the number of districts where minorities, both racial and ethnic, will have the opportunity to elect the representatives of their choice. The boundaries may have changed, but the purpose and goal of the Voting Rights Act and Florida’s Fair Districts Amendment have been better met under this plan
After the 2015 and 2016 redistricting debates, the Florida Supreme Court would begin to shift further to the right. Florida has mandatory retirement age for justices, and the Governor appoints replacements from a list via the a nominating commission. With each retirement, Rick Scott, and eventually Ron DeSantis, would get to replace justices with far more conservative choice. In the 2015 redistricting ruling, this was the makeup of the court and how they ruled in 2015.
As the years went on, all but Justices Canady and Labarga went into retirement. Hence by the time of 2021, when redistricting drafting would begin, Florida has a much more conservative court. This was so notable that it led to a shift in the voting patterns around Supreme Court retention elections. While Justices always win retention votes, the opposition shifted from rural conservative areas to more liberal and Black communities.
With a more conservative court, and with Republicans still in full control of government, it felt like the 2022 redistricting process would go much better for Republicans than it had in 2015.
Part 2: The 2022 Remap Controversy
Note: This section is going to speed rush through the 2022 redistricting drama, which I wrote no less than 25 articles on. All the archives of these articles can be seen here. Again this will be a quick summary of events, specifically focused only on North Florida.
Legislature Wants Status Quo
Heading into the 2022 redistricting season, there were many competing opinions on what Florida’s congressional map would look like. Conservative activists were clamoring for a strong gerrymander, but there was ample evidence that lawmakers were not interested in skirting the Fair Districts amendments.
While the right-wing argued the more conservative Supreme Court would sign off on any maps, lawmakers did not want to deal with lawsuits and the discovery process that entails. The lawsuits that led to the 2015 strike-down saw many lawmakers subject to depositions and the turning over of embarrassing documents. On a human level, many wanted to avoid such hurdles, even if a final outcome might have been different.
Conservative activists believed lawmakers could and would eliminate North Florida’s 5th Congressional sense it was not 50% Black and hence was not protected by the VRA. However, both chambers released draft Congressional plans that maintained the 5th district. Original Senate drafts can be seen here, while House drafts were here. Even as the House had a map with gerrymandering in Tampa and Orlando, they did not dare touch the 5th district’s layout.
The State Senate passed a Congressional plan that everyone considered quite balanced.
The House and Senate largely differed on Orlando and Tampa, but it seemed clear that the 5th would remain as it was. Conservatives were furious with this fact. For lawmakers, however, maintaining the district was common sense. The district, while long, was bulkier than the North-South version from the past. The proposed new lines, laid over the 2020 Democratic Primary, can be seen below.
The Florida House, meanwhile, had slightly different versions of the 5th, but it was broadly the same. Both plans made the 5th less jagged than the 2015 version was. Matching lines better with major roads and communities. How the House version compared with the 2015 version can be seen below.
While long, this still showed a clear effort on the part of lawmakers to create a “race conscious map” - vs a “race predominance” map. The plan kept Baker, Hamilton, Madison, and Gadsden county whole. The county splits utilized major roads. The Leon portion of the district matched similar to how its State House districts look.
These lines were clearly race conscious, but they were a far cry from the race predominance lines we saw in the 1990s, and even more compact than the 5th from the 2000s. Lawmakers were moving ahead with these types of lines, indicating they clearly found them to be balancing compactness requirements but with race considered; just as Fair Districts laid out.
DeSantis Gets Involved
Initially, congressional redistricting was going along smoothly. However, in January of 2022, DeSantis released his own maps, which eliminated the 5th district and restricted Democrats to just 10 seats vs 18 for Republicans. I covered his initial draft here, with myself initially believing it was purely for show. The map was the exact type of plan online conservative activists had been clamoring for.
DeSantis presented his map while arguing that the east-west 5th was a racial gerrymander. The governor would give conflicting statements on his map depending on the moment. On the one hand, he insisted his plan was race-blind. However, he simultaneously touted that his plan created five Hispanic-majority districts. I wrote about the flaw in his math, pointing out that several of this Hispanic-majority districts would not be electorally Hispanic because of turnout and registration issues.
At first, lawmakers gave the proposal little consideration and eventually became outright hostile to the Governor’s involvement. DeSantis pushed for the Florida Supreme Court to issue a ruling on the 5th district, but the court rejected such a move. I also delved into this in several of my articles from the time, but DeSantis’ claim about the 5th being “too long” were nonsense, as several of his proposals were long as well. Here, also, is one of the districts from Ron’s plan.
In an effort to find common ground with the Governor, lawmakers in the Florida House tried to pass an alternative map that had a Black-performing seat just in Duval County. This proposal, which would have been solidly blue and over 60% Black, was compact and followed major road boundaries. The full details on this can be read about here.
I did not personally like this plan, as I feel the rural Black voters deserve representation as well, but this was an alternative. Lawmakers, trying to avoid a veto from the Governor, actually passed two congressional plans. One plan had a Jacksonville-only 5th, the other had an east-west breakdown. The goal was that if the JAX-only map was struck down by the court, a backup was already to go. Full details can be read about here.
DeSantis, however, vetoed this plan, insisting it was still a racial gerrymander. This was because the issue was never about racial gerrymandering, but was rather about DeSantis increasing his conservative credentials as he looked ahead to a 2024 Presidential run. DeSantis, by this point, already had a history of antagonizing Black Floridians; like delaying special elections for African-American districts. The idea that the Jacksonville-only seat was some grand gerrymander was nonsense.
After a veto of the legislative-passed plan, DeSantis would force lawmakers to comply with his desires, and they eventually caved and passed a map he desired. This came amid threats to line-item veto different budget items held dearly by lawmakers, as well as threats to fund primaries to lawmakers. This was the era of “King Ron”, which I talked about in detail earlier this year. An example of these threats can be seen with Senate President Wilton Simpson, who was also in the process of running for Florida Agriculture Commissioner. As the Governor and chambers debated, DeSantis aligned with a possible primary challenger to Simpson. After Simpson caved to DeSantis, that primary challenger dropped out of the race. Clearly a deal was worked out.
The final Congressional proposal, which took parts of the legislative plans and part of his plans, is seen below. I wrote about it at the time here.
The plan passed on a partisan vote, which was subjected to a sit-in by several Black lawmakers. DeSantis had gotten his way and passed an extreme gerrymander. He would later brag about his plan aiding Republicans in taking the House in 2022, proving that his goals were always partisan.
I wrote extensively about the Congressional map, and how deep a gerrymander it was, in this 2022 deep dive. Check that out for more details on other parts of the state.
While DeSantis got his way in the legislative process, everyone knew a court battle was destined to come. That began immediately after the plan passed.
Part 3: Court Battles
The fight over the map stretched over several years. I wrote about these developments as they happened, and you can find those article in the later half of my redistricting coverage. I’ll hit the key points below, but check out those article for more details.
Initial Court Strike-Down
After the DeSantis plan was passed, groups quickly filed suit over the elimination of the 5th Congressional district; arguing the new map violated Fair Districts’ non-diminishment provisions. Plaintiffs sought an injunction to prevent the 2022 elections going ahead with the passed map. The injunction sought to force a redraw of North Florida before the elections; while allowing a broader lawsuit to continue.
On May 11th, Leon County Circuit Court Judge Layne Smith sided with the plaintiffs, ruling the new map violated Fair Districts’ rules on minority districts. Judge Smith pointed out the new map in North Florida “does disperse 367,000 African American votes between four different districts.”
Judge Smith ordered a remedial plan that would reshape part of North Florida. However, this ruling was stayed by the Florida Supreme Court pending appeal and a full trial. This allowed the 2022 elections to go on with the DeSantis map in place. Al Lawson ran for the redrawn 2nd, which was solidly Republican, and lost to Republican Neil Dunn.
The court ruling was a good start for the plaintiffs, even though the stay, which was sadly predictable from the conservative Supreme Court, allowed a blatantly unconstitutional map to move ahead.
Lawsuit Proceeds & The Alabama Case
The court case known as Black Voters Matter v Byrd, would continue through discovery and filings as 2022 moved to 2023. In the meantime, the US Supreme Court issues a major ruling that required Alabama to redraw its Congressional map. That case, Allen v Milligan, decided in June, forced Alabama Republicans to draw two black-performing seats.
This was the result of VRA claim that Alabama was warranted two Black-performing seats, not just one. The ruling affirmed the conservative-minded court was not considering eliminating the the VRA as a tool in redistricting litigation. While this did not directly impact Florida’s Fair Districts debate, the outcome map, which was affirmed by the courts, did show the court continued to hold race conscious mapping as a standard. The final plan passed has the 7th and 2nd as Black-performing districts. Note the long shape of the 2nd.
This plan was used in the 2024 elections and is the plan moving forward for the rest of the decade. The 2nd district under this plan is race conscious, traversing one end of the state to the other, but its not race predominance, as it keeps many communities united and whole. Its hardly the Florida 3rd from 1992. I find it hard to argue this and the east-west 5th are any different.
This ruling showed the federal courts were hardly about to strike down race conscious plans as illegal gerrymanders. Perhaps it was no coincidence then that after this ruling, the state of Florida agreed to several stipulations in the lawsuit over their map
Lawsuit Narrowed to just the 5th
Shortly after the Alabama ruling, both the plaintiffs and the state of Florida agreed to a narrowing of the lawsuit. Initially the plaintiffs were suing over partisan intent and several districts outside of North Florida. After all, many parts of the passed map are gerrymanders. However, both sides agreed to a stipulation agreement that laid out some key facts. I documented this in detail here, but you I’m giving the basics below.
Lawsuit is narrowed to North Florida, specifically the issue of the old 5th Congressional district
State CONCEDES the 5th being eliminated violated Fair Districts principles of non-diminishment.
State will argue at court ONLY that adhering to non-diminishment for the 5th would violated the Equal Protections clause of the federal constitution
In other words, that the east-west 5th uses racial predominance, not race consciousness
State agrees that if they lose at court, the remedy is an east-west 5th, NOT a Jacksonville-only plan.
Both sides also agreed that whoever lost at trial, if they desired to appeal, would request their appeal go right to the Florida Supreme Court, hence giving everyone enough time to have a new map in place for 2024.
The plaintiffs likely agreed to narrow everything to the 5th because that was the most egregious violation of Fair Districts. The court was more right wing, and would likely give a lot of leeway on partisan gerrymandering claims (especially without a smoking gun email or text from lawmakers). The elimination of the 5th, however, could be separated from partisan intent. Its elimination violated non-diminishment. If that could not be won on its merits, then the court definitely would not be siding with the plaintiffs on anything else.
Trial Court Victory for Plaintiffs
On August 24th, 2023, the two sides made their case in court. The one-day hearing was before Judge J. Lee Marsh, a Rick Scott appointee. The hearing was entirely around the issue of the 5th district being racially predominant or not. At the hearing, the plaintiffs pointed out the version of the 5th that had been drafted in 2022, was far more compact than the 2015 version, with only 2% of its lines not following major roads or county borders.
Meanwhile, I must stress, while the state was arguing the east-west 5th would violate Equal Protection, this was also part of the 2022 map that passed.
The 20th Congressional district links Black voters in Palm Beach and Broward by using EMPTY everglades land. Now to be clear, I am fine with this, because I care about racial representation. However, I am saying that the state passing that set of lines but arguing an East-West 5th is “too far” is absolutely nonsense to me. If the east-west 5th is racial predominance, then how is the 20th not the same thing?
In the end, Judge Marsh ruled in favor of the plaintiffs and struck down the current Congressional map. His ruling and my analysis can be found here. In his ruling, Judge Marsh backed up arguments from the plaintiffs that North Florida remains an area of considerable racially polarized voting, a key component of the non-diminishment provisions of Fair Districts.
Marsh also sited many additional cases of North Florida whites being hostile to electing Black candidates. In short, North Florida behaved similar to much of the rural south. The Non-Diminishment provisions of Fair Districts were valid here.
Appeals Court Interjects
Initially, the plan was for the state to appeal directly to the Florida Supreme Court. However, the appeals court rejected this plan and demanded to hear the case themselves first. This was considered a major shock to all sides.
Then, the appeals court held a hearing that clearly indicated they were hostile to the plaintiffs. The court did not even agree with the claims of racially polarized voting and outright rejected facts both sides had agreed to. The court also ruled previous redistricting precedent by the Florida Supreme Court was not precedent. I wrote all about this here, but will not dwell on it. Why won’t I dwell on it? Because the Florida Supreme Court rejected this in their opinion. While the Florida Supreme Court ruled against the plaintiffs as well, they did so for different reasons and went out of their way to chastise the appeals court for their actions.
Regardless, the appeals court getting involved threw off much of the timeframe. The appeals court decision did not come until December of 2023. Then, however, the Florida Supreme Court did not schedule its own oral arguments until September of 2024, meaning that the 2024 elections would be held under the current map no matter what.
Part 4: Supreme Court Ruling
By the time the case got the Florida Supreme Court, it was already clear the 2024 elections would ago ahead without a possible new map. Oral arguments were held in September and the results definitely showed the court was leaning hard against the plaintiffs and prepared to overturn precedent. During the oral arguments, Chief Justice Muniz even speculated if the entire Fair Districts amendments should be tossed out.
Luckily that did not happen, at least for now. However, as I stated at the start of this article, the justices did side with the state; rejecting the push for a new 5th district. The decision was 5-1, with Justice Canady recusing himself.
There are some key components of this ruling so I will break things down.
Chastising Appeals Court
Before the court got to the merits of the case, and after offering a summary of events, the Supreme Court addressed two other matters. First, the court rejected the arguments the appeals court made back in 2023. The court took its time to assert that Supreme Court positions are precedent, and broadly took the appeals court to task for several issues; including injecting themselves into the effort to appeal directly to the Supreme Court.
“Even when a district court disagrees with a decision of this court, it is the lower court’s duty to follow our precedent.
This was more about the Supreme Court asserting its authority.
What qualified for non-diminishment?
In addition, the Supreme Court addressed the claims of the Secretary of State. While this trial was going on, there where two state defendants - the legislature and the Secretary of State. While the attorneys for the legislature focused on the issue of racial predominance, the Secretary of State, led by far-right former State Rep Cord Byrd, argued that the Fair District’s non-diminishment provision only applied to districts that could be majority-minority.
Remember earlier when I discussed how functional analysis could be used to show a 40% Black seat was still functionally Black and hence protected? Well the SOS said “no that doesn’t apply, it must be 50% via census, just like with the VRA.” The Supreme Court rejected this argument, at least preserving the fact that non-diminishment protections can exist for seats under 50% minority.
Weakens Non-Diminishment Provision
Once the court got into the facts of the case, they quickly made it clear that they considered an east-west 5th to be racially predominant. They have no argument on the difference between racially predominant and racially conscious. In fact, the notion of “racially conscious redistricting” never comes up in the opinion. On top of this, the court declares that the non-diminishment clause of Fair Districts, despite it being tailored after Section 5 of the VRA, is not tied to issues of discrimination!
In other words, as best I understand this, arguments about discriminations and racially polarized voting are not considered important factors when it comes to non-diminishment in Fair Districts. This is a direct contradiction to the spirit and application of the law for 15 years now.
Burden is on Plaintiffs
The court also notably puts the burden of proof on the plaintiffs to justify their call for a new drawing of districts. In essence, the court presumes the remedy east-west is racially predominant, and plaintiffs would have to “prove” otherwise. It is clear, however, no such proof would suffice.
The court also uses the fact that the legislature passed a plan as proof of their conviction that they were following Fair Districts. The court says that the legislative-passed plan must have been drawn so because lawmakers wanted to avoid racial predominance.
However, we know this is NOT TRUE - as lawmakers originally drew out the east-west 5th. It was only after well documented political clashes with the governor that they caved on their own plans.
Even if we did not know about DeSantis’ involvement, this presumption of propriety for the legislature is fairly stunning. Per the facts of the case, Black voters in North Florida, for the first time in 30 years, have lost a district that allows them to elect a candidate of their choice. This radical shift in the Congressional map, which plainly violates Fair Districts, should need to be justified, not presumed as proper. Instead, the court accepts an alternative version of reality - one where lawmakers long believed the 5th needed to be changed - and then the court presumes this is sincere.
Won’t allow other Plans Considered
As the court goes on, they use the fact that the stipulation agreement, who avoided a longer trial, meant that only one alternative map could be considered. Plan 8015, the original vetoed alternative plan, was the only one that could be considered. If the 5th under Plan 8015 was racially predominant, then the court would NOT tell the legislature to instead try a different district layout. Either plan 8015 was ok, or no Black-performing seat at all.
Keep in mind the court could always establish whatever rule it wanted. It could have said “that Duval only 5th can be an option.” No instead the court made it clear it was all or nothing.
To be clear, nothing would have stopped the court from saying “we do want to see possible remedies.” The court had broad power to rule as they saw fit. They could have looked at the situation in Jacksonville, which has been the historic anchor for any North Florida Black-performing seat. As this map below shows, DeSantis’ plan is sure to dilute Black political power by pairing them with the deep red counties of Nassau and Clay. Compare that to the legislature’s alternative, which had a 5th entirely in Duval County.
This possible remedy, which as I discussed earlier would lean blue and be over 60% Black in a primary, would at least give some release for Jacksonville’s Black population.
The court chose not to consider this final alternative. Instead it was Plan 8015 or nothing.
Rules Plan 8015 is Racially Predominant
Quickly into the ruling, the court said it viewed Plan 8015 as racially predominant. Specifically they say the plaintiffs failed to prove it WASN’T. In the court’s eyes, the plaintiffs 5th district plan was guilty until proven innocent.
The court acts as if considering race is not allowed, despite clear case law and texts of the amendments stating otherwise. The court went on to describe the 5th as the two cities of Tallahassee and Jacksonville only connected by a “land bridge.”
The court embraces the caricature of the district, which ignores the rural Black population that goes across North Florida.
When Judge Marsh made his ruling, he sited part of the reason for the district’s long shape is the lower population density in the panhandle. You can actually see from this map below, how many parts of the county are far more rural.
When we look at an issue like racial predominance, its not just about the size or shape of a seat. The question is, does the districts shape only make sense due to race. The east-west 5th united several counties with historic ties. Counties like Madison, Hamilton, Jefferson, Columbia, and so on, all have shared heritages while also having similar racial backgrounds and makeup.
That old 3rd from 1992 showed no logic beside race. Another example would be this 1992 State Senate district, which aimed to unite Black voters in central Florida. Spoiler, courts quickly struck this down.
This is racial predominance. Random appendages as narrow as a block, snacking along the very narrow edge of a county. To lump the east-west 5th in with seats like that really makes the term “racial predominance” lose all meaning.
Back to the court opinion. I’m sure the voters of the rural counties love being referred to simply as a bridge. Meanwhile, the Florida 20th uses empty Everglades to unite Broward and Palm Beach. In addition, the Hispanic-majority 26th connects Hialeah with the rural Hispanic communities of Collier county on the west coast.
There are massive tracks of land here that are entirely empty. THAT is a land bridge. I am not even here to say if that land bridge is right or wrong. I am just pointing out some districts are held to different standards than others.
Narrow Ruling, for Now
The court is not consistent with its compactness or racial consideration logic. The court, however, sidesteps this obvious contradiction by saying “hey this case is only about North Florida" - any debate about other districts can wait for another time.
Of course, perhaps that is best. As I stated, I don’t care to see seats like CD20 truck down, and such an expanded ruling could harm many minority districts I fully support. I’ll delve into that more in my look at Justice Labarga’s dissent, where he hits at this issue.
Overrules Previous Cases
The court goes on to clarify that the east-west 5th being recommend in 2015 was “wrong” - and basically overturned that precedent. The court, again without any prompting from the federal courts or hard evidence, declare the 2015 FL05 to be a racially predominant district. Against I cannot emphasize enough that they don’t even seem to consider the decades-long notion of racially conscious redistricting.
The court also rules out allowing a new trail to determine if an alternative map could balance federal rules and the Fair Districts amendments. Such a trial, with expert testimony, could also be used to determine if the east-west 5th was race-predominant. Instead, the court makes a uniliteral decision and offers no chance to alternatives.
Ordering a new trial could have at least been an “out” for the court. Instead their ruling does tremendous damage to the Fair Districts non-diminishment rules. It put the burden on the plaintiffs and presumed a district was race-predominant, ignoring the entire notice of race conscious.
It is an extreme ruling that will in all likelihood gut the racial protections in Fair Districts.
Dissent from Justice Labarga
Former Chief Justice Jorge Labarga was the lone dissenting voice. Broadly seen as a moderate, Labarga was originally appointed by Charlie Crist. Labarga is the last of the majority opinion from 2015 that is still on the court. He was never as liberal as some of his colleagues, but he also was a firm voice on racial protections in Fair Districts.
Labarga wrote a dissent, which starts off plainly pointing out that the result of all of this is the complete elimination of a minority-performing Congressional district.
In his dissent, Labarga took issue with the notion that the plaintiffs had the burden of proof to determine if a remedy map would not violate the the Equal Protection clause. As the Justice pointed out, since it was the defendants (state) that argued their decision was to avoid a race-predominant map, the burden should be on THEM to prove they have no alternative maps, not the defendants.
Labarga likewise questioned the unwillingness of the majority to order a new trial. The Justice pointed out the decision to forgo a trial with the stipulation agreement was an agreed plan for both sides. If the court disagreed with this avenue, the answer is to order a factfinding trial on the matter.
Labarga also warned that the decision could lead to a situation where the non-diminishment provision of Fair Districts is not enforceable. The courts bold declaration that the 5th was race-predominant, and seeming to ignore the entire notion of race-consciousness, could easily give future map makes the ability to disregard race all together (unless its a VRA-protected seat).
Labarga ends his dissent making his objection clear. Based on how Fair Districts is written, the Congressional map is against the State Constitution.
The Florida Supreme Court has declared, with little evidence to back it up, that no alternative map could balance federal requirements. In doing so, they have allowed a map that blatantly violates Florida’s Constitution to move ahead; all under the pretense that no alternative could possibly work.
A shameful ruling.
Final Thoughts
Back in Issue 200, I stated that I did believe the Florida Supreme Court would find a way to keep the current Congressional map in place. It is clear, from the way the ruling is shaped, they had an outcome already in mind and needed to warp whatever legal justification to back it up. A ruling for a new trial would have been a cop out that could have dragged the case all the way to the 2028 elections, but it would have been better than this ruling.
The ruling, as Labarga hints, very much weakens the non-diminishment provision of Fair Districts. Under the framework laid out, where racially conscious redistricting is lumped in with racial predominance, there are countless state legislative districts that could be put at risk. Several seats operate in a way, that per how this opinion is worded, would be “racially predominant” in the eyes of these justices.
The two remaining Black-performing districts, the 20th and 24th, are likely fine because they have protections of the VRA. Plus, Republicans would only risk other seats in changing their borders. However, as we have heard rumblings of in recent weeks, some Republicans want to consider a mid-decade redistricting in Florida. Now whether that happens I think is up in the air, as the map is already fairly right-wing and a “dummymander” is a possibility. I will talk about that down the line if a remap push seems especially likely.
I would love to say that any remap would easily be struck down for violating Fair Districts’ rules against political favoritism. However, I have little doubt this court would just blindly agree “oh a remap does not mean partisan intent.” So no, in no way to I expect the Florida Supreme court to uphold any tenants of the Fair Districts amendments. They will weasel around them however they need. All Republicans will need to do is not plainly say “we are doing this for partisan reasons” - and the court will give them a pass.
With this ruling, the Fair Districts amendments, namely the non-diminishment provision, are fatally weakened. As I stated years ago, if the elimination of the 5th was not ruled as a violation of Fair Districts, then the amendments are not worth they paper they are printed on. We may not entirely be back in the pre-Fair Districts era, but we are just about there.
Whatever happens mid-decade aside, when 2032 redistricting comes around, Republicans will have all the cover they need to do as they please.