Updated: Florida takes aim at judge’s ruling that its redistricting is unconstitutional

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — Saying a congressional redistricting plan approved last year by lawmakers and Gov. Ron DeSantis abolished a “race-based electoral monopoly,” attorneys for the state late Wednesday argued that an appeals court should overturn a circuit judge’s ruling that the plan violated the Florida Constitution.

Attorneys for Secretary of State Cord Byrd filed a 73-page brief at the 1st District Court of Appeal in a battle that centers on a North Florida district that in the past elected Black Democrat Al Lawson. The plan approved last year overhauled the district, with white Republicans winning all North Florida congressional races in the November elections.

Leon County Circuit Judge J. Lee Marsh last month sided with voting-rights groups and ruled that the overhaul of Congressional District 5 violated a 2010 state constitutional amendment that barred drawing districts that would “diminish” the ability of minorities to “elect representatives of their choice.”

But in the brief filed Wednesday night, attorneys for Byrd contended that designing a district to help elect a Black candidate would be a racial gerrymander that would violate the Equal Protection Clause of the U.S. Constitution.

“Plaintiffs would see race reign supreme in Florida’s redistricting efforts,” the brief said. “The Florida Constitution does not compel that result, and the U.S. Constitution would not permit it in any event.”

The brief filed on behalf of Byrd, a named defendant in the case, said the plan approved last year has “compact districts that bring together individuals based on where they live, not based on their race.”

“The enacted plan is compact, contiguous and equalized, and it respects traditional political boundaries while maintaining communities of interest,” the brief said. “Most important, it was drawn without considering race, which resulted in it eliminating the racially gerrymandered versions of CD-5 (Congressional District 5).”

Attorneys for the Senate and House also filed a brief late Wednesday arguing that Marsh’s ruling should be overturned.

The state quickly appealed after Marsh’s Sept. 2 decision. Under a procedural rule, the appeal triggered an automatic stay of Marsh’s decision while the case continues to play out.

The appeals court this week scheduled arguments Oct. 31 in the case. It will hold what is known as an “en banc” hearing of the full court, rather than using the typical process of a three-judge panel hearing arguments.

Attorneys for both sides said in a filing last month that they would like a ruling from the appeals court by Nov. 22. That would give time for lawmakers to pass a new redistricting plan, if necessary, during the legislative session that will start in January.

“A ruling by November 22 will also provide time for either party to seek Florida Supreme Court review and for the Florida Supreme Court to render a decision in time for the Legislature to take up any remedial plan, if necessary, during the 2024 regular legislative session, and before the Legislature’s scheduled adjournment on March 8, 2024,” the filing said.

Lawyers for the voting rights groups and other plaintiffs are slated to file a brief at the appeals court by an Oct. 18 deadline.

Meanwhile, a panel of three federal judges on Tuesday finished a trial in a separate challenge to the redistricting plan. The panel has not ruled in the case, which also focuses on District 5.

The district in the past stretched from Jacksonville to Gadsden County, west of Tallahassee, incorporating areas that had large Black populations. The 2022 plan put the district in the Jacksonville area.

Lawmakers approved the overhaul during a special legislative session after DeSantis vetoed other proposed configurations of District 5 that could have been more likely to elect a Black candidate. DeSantis cited the equal protection issue as he effectively took control of the congressional redistricting process.

But the voting-rights groups argued that the overhaul of District 5 violated what is known as the “non-diminishment” requirement in the 2010 constitutional amendment, which set a series of standards for redistricting,

Abha Khanna, an attorney for the voting rights groups, told Marsh during arguments in August that last year’s plan eliminated the ability of Black voters in North Florida to elect a representative of their choice.

“The defendants’ willingness to shrug this off as a problem that is not compelling enough to solve is a stick in the eye of the Florida voters who enshrined this provision into their Constitution to prevent their elected officials from ignoring and suppressing minority voting rights, as had been the case for far too long,” Khanna said.

In finding the plan unconstitutional, Marsh wrote that the “plaintiffs have shown that the enacted plan results in the diminishment of Black voters’ ability to elect their candidate of choice in violation of the Florida Constitution.”

The brief filed by Byrd’s attorneys Wednesday, however, said that “any North Florida district drawn to comply with non-diminishment would violate the Equal Protection Clause.”