Voting-rights groups and other plaintiffs quickly shifted to the Florida Supreme Court after the 1st District Court of Appeal upheld a congressional redistricting plan that Gov. Ron DeSantis pushed through the Legislature in 2022.
Attorneys for the plaintiffs filed notices Sunday night that are first steps in asking the Supreme Court to take up their constitutional challenge to the plan.
The notices, as is common, did not detail arguments the plaintiffs will make at the Supreme Court. But the move was widely expected, as was evident Friday in a dissenting opinion by 1st District Court of Appeal Judge Ross Bilbrey.
Bilbrey argued that the Tallahassee-based appeals court should have granted a request by the parties to fast-track the case to the Supreme Court, rather than having the appeals court weigh in. He wrote that “we should have accepted the parties’ joint suggestion and certified the appeal to the Florida Supreme Court almost three months ago. By failing to do so, we have deviated from our past practice and delayed the ultimate resolution to the detriment of the voters, election officials and candidates in North Florida.”
Friday’s decision came less than a year before the 2024 elections and less than five months before a late-April qualifying period for congressional candidates. It is unclear how quickly the Supreme Court could address the issues. But if the plan is determined unconstitutional, the Legislature could be required to redraw the map. The annual legislative session will start Jan. 9.
In a main opinion and three concurring opinions, the 1st District Court of Appeal by an 8-2 margin rejected a Leon County circuit judge’s ruling that the redistricting plan violated a 2010 state constitutional amendment that set standards for redistricting.
The case centers on an overhaul of North Florida’s Congressional District 5, which in the past elected Black Democrat Al Lawson. Voting-rights groups and other plaintiffs argue the overhaul violated part of the constitutional amendment, known as the Fair Districts Amendment, that barred drawing districts that would “diminish” the ability of minorities to “elect representatives of their choice.”
The overhaul led to white Republicans getting elected in all North Florida congressional districts in the 2022 elections.
While Circuit Judge J. Lee Marsh sided with the plaintiffs in September, the appeals court’s main opinion Friday focused, in part, on the sprawling shape of the district that elected Lawson. That district stretched from Jacksonville to Gadsden County, west of Tallahassee, as it linked communities with significant Black populations. The shape of the former District 5 was the result of a 2015 Florida Supreme Court decision.
The main opinion, written by Judges Adam Tanenbaum and Brad Thomas, said the protection offered by what is known as the “non-diminishment” clause of the Florida Constitution and the federal Voting Rights Act “is of the voting power of ‘a politically cohesive, geographically insular minority group.’” It said linking voters across a large stretch of North Florida did not meet such a definition of cohesiveness.
“At its heart, the plaintiffs’ claim is based on a false premise … that minority voters living hundreds of miles apart in totally different communities, not joined in any reasonably configured geographically area, are entitled to proportional representation merely because they were once included together in former CD-5 (Congressional District 5) by court order for three election cycles,” the main opinion said.
The opinion added, “Without common interests and a shared history and socioeconomic experience, it is not a community that can give rise to a cognizable right protected by the FDA (Fair Districts Amendment). In other words, it is the community that must have the power, not a district manufactured for the sole purpose of creating voting power.”
Bilbrey wrote a dissenting opinion that said Marsh’s findings about diminishment were “supported by competent, substantial evidence.” The overhauled District 5 is in the Jacksonville area.
“A historically performing benchmark district (the former District 5) for Black voters was not just diminished — it was eliminated. … A politically cohesive racial minority is now denied the ability to elect a candidate of choice in a racially polarized district, showing that unconstitutional diminishment has occurred,” wrote Bilbrey, who was joined in the dissent by Judge Susan Kelsey.
After lawmakers last year initially considered a district that was similar to the former District 5, DeSantis effectively took control of the congressional redistricting process. He vetoed a plan passed by the Legislature and called a special session that led to a map that helped result in the November 2022 elections to Florida Republicans increasing their number of U.S. House members from 16 to 20.
A coalition of groups, such as the League of Women Voters of Florida and Equal Ground Education Fund, and individual plaintiffs filed the lawsuit. Also, a separate challenge to the plan is pending in federal court.
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