By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — Readying for arguments next week in the high-stakes case, voting rights groups have asked an appeals court to uphold a ruling that a congressional redistricting plan backed by Gov. Ron DeSantis violated the Florida Constitution.
Attorneys for the groups and other plaintiffs filed an 86-page brief at the 1st District Court of Appeal in the case, which centers on an overhaul of a North Florida district that in the past elected Black Democrat Al Lawson.
Leon County Circuit Judge J. Lee Marsh in September 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.” That quickly led to an appeal by Secretary of State Cord Byrd, the House and the Senate, as they try to maintain a redistricting plan that DeSantis and lawmakers approved in 2022.
In the brief, filed last week, attorneys for the plaintiffs pointed to a 2015 Florida Supreme Court precedent that they said proved last year’s plan violated what is known as the “non-diminishment” standard in the state Constitution. After last year’s overhaul, white Republicans won all North Florida congressional seats in the November elections.
The brief said that while state officials “may choose to ignore the law and the facts that govern this appeal, this court cannot overrule existing precedent, nor does it have a basis to disturb the trial court’s (Marsh’s) well-supported — and often undisputed — factual findings.”
“Ultimately, appellants’ (Byrd, the House and Senate) arguments are nothing more than an attempt to muddy the waters of a straightforward constitutional challenge,” the brief said. “The trial court’s holding that the enacted plan diminishes minority voting strength in North Florida in violation of the Florida Constitution was compelled by the stipulated facts and binding Florida Supreme Court precedent. This (appeals) court is similarly bound.”
But in a brief filed early this month at the Tallahassee-based appeals court, 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 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).”
The appeals court on Oct. 31 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.
District 5 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.
Voters in 2010 passed the “Fair Districts” constitutional amendment, which set standards for redistricting and included the non-diminishment standard. The 2015 Florida Supreme Court precedent dealt with how the non-diminishment standard should be applied and led to the creation of the sprawling district that elected Lawson.
Voting rights groups and other plaintiffs filed the lawsuit last year in Leon County Circuit Court. Meanwhile, a separate challenge to the redistricting plan is pending in U.S. district court, based on federal constitutional issues.
In the brief filed last week at the state appeals court, attorneys for the plaintiffs contended state officials are trying to “avoid liability by remaking the law through a series of novel legal arguments, none of which has merit.”
“Despite their many attempts to escape liability for diminishing Black voters’ ability to elect candidates of their choice in North Florida, appellants’ arguments fail at every turn and should be rejected,” the brief said. “The undisputed facts and unwavering Supreme Court precedent compel affirmance of the trial court’s decision.”
Under procedural rules, the state’s appeal triggered an automatic stay of Marsh’s Sept. 2 decision while the case continues to play out.
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.
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