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Lawyers for the DeSantis administration and Legislature asked a state trial judge Thursday to rule that the federal Voting Rights Act violates the U.S. Constitution to the extent that it allows creation of congressional districts allowing Black voters to win representation in Congress.
The outcome could determine whether Democrat Al Lawson, a Black man who represented the broad swath of North Florida at issue between 2017 and this year, might return to Congress.
Florida’s Fair District amendments to the state Constitution, modeled on the VRA, makes nondiminishment of these districts a top priority when redrawing the electoral map every 10 years.
Circuit Judge Lee Marsh, sitting in Leon County, didn’t seem convinced by the state’s arguments.
“Is that just a back-door attack on saying nondiminishment violated equal protection, we ought to throw the whole thing out, and this court would be the first in the country to say that, you know, even the Voting Rights Act is unconstitutional. I mean, is that a far stretch?” Marsh observed at one point.
“I think that is exactly the implication that the defendants are asking of this court right now. That is the heavy ask that they are making of this court, to break that new ground. And, ultimately, they are asking this court to say that the consideration of race in redistricting — whether it’s because of the Fair District Amendment, the Voting Rights Act, or anything else — is per se unconstitutional,” said Abha Khanna, a partner in the Democratic-aligned Elias Law Group.
Marsh closed out the roughly four-hour hearing by asking the plaintiffs’ and defense attorneys to propose their best final arguments by Wednesday. He didn’t say when he would rule.
Paltry record
The judge said he had set aside two weeks to hear the case, but recently the state agreed to stipulate that the Legislature had diminished the Black vote in exchange for the plaintiffs dropping similar claims elsewhere in the state. The judge complained several times during Thursday’s hearing that the arrangement deprived him of an extensive factual record upon which he could decide the case.
In court to represent Florida Secretary of State Cord Byrd was Mohammad Jazil of the Holtzman Vogel law firm; Andy Bardos of GrayRobinson represented the Florida House; and Dan Nordby of Shutts & Bowen represented the Florida Senate. Gov. Ron DeSantis was dropped as a named defendant.
Their argument boiled down to this: That the Equal Protection Clause of the Fourteenth Amendment forbids making race a predominant factor when drawing legislative districts. Last year, the House and Senate discussed continuing a version of a Black-performing district that extended some 200 miles from Duval County to Gadsden County, collecting Black votes in Jacksonville and Tallahassee; Gadsden is Florida’s only majority-Black county.
But DeSantis insisted that that would amount to an unconstitutional racial gerrymander. He vetoed the legislative map and forced lawmakers to accept his own map wiping out the North Florida district as Black-performing.
That was widely seen as an opportunity for the U.S. Supreme Court to strike down language in the Voting Rights Act specifically prohibiting new maps from diminishing minorities’ chances of electing candidates of their choice. However, in June the U.S. Supreme Court rejected similar arguments by the state of Alabama, essentially ordering that state to draw two such districts for Black voters.
Racial considerations
The state lawyers argued there was no way to protect Black representation in the area without placing too much stress on race as opposed to other relevant factors.
It was up to the plaintiffs in the case, including civil rights groups and the League of Women Voters, to suggest some formulation that would fall within the Fair Districts Amendment and VRA plus the Equal Protection Clause, they argued.
Khanna insisted that the law doesn’t say that. Rather, the judge could throw out the map and let the Legislature have another go at reconciling those provisions. “And if the Legislature is either unable or unwilling to do so, then if falls to the court to devise a remedy,” she said.
Furthermore, the long district is defensible on ground other than race, including respect for geographical boundaries like rivers and roadways, plus respect for city and county boundaries, which it does better than other districts the Legislature drew last year, Khanna said.
Khanna pointed out that the Legislature did approve a majority Black group in North Florida, contained within Duval County, as an alternative to the Duval-to-Gadsden district. DeSantis refused to accept it, however, so they dropped the idea.
Legislative leaders argued at the time that various Black-majority North Florida districts complied with Fair Districts and the VRA until DeSantis forced them to back down, Khanna argued.
Reaction
Jasmine Burney-Clark, founder of Equal Ground, one of the plaintiffs, issued a written statement.
“The state has already admitted that Gov. DeSantis’s Congressional map — that he forced through to diminish the voting power of minority Floridians and silence our voices – violates the state’s safeguards against diminishing the electoral influence of racial minorities,” she said.
“And following today’s hearing, it is abundantly clear that the only remedy is for Florida to ensure a district that restores congressional representation for voters in North Florida and empowers them to select a candidate of their choice before the 2024 election. These voters cannot be disenfranchised any longer.
“Floridians made their wishes known over 10 years ago when they codified the ‘Fair Districts Amendment.’ And although the governor has tried to once again subvert the will of the people, all Florida voters will be heard and represented, and we will continue the fight to protect our voting rights.”
This article originally appeared in florida phoenix
