Florida Supreme Court to decide if it can advise DeSantis on redistricting map

Two of the seven justices have recused themselves on the issue.
The Florida Supreme Court building is pictured on Nov. 10, 2018, in Tallahassee. Gov. Ron DeSantis has asked the Florida Supreme Court for an opinion on whether a Black congressman’s district was constitutional.
The Florida Supreme Court building is pictured on Nov. 10, 2018, in Tallahassee. Gov. Ron DeSantis has asked the Florida Supreme Court for an opinion on whether a Black congressman’s district was constitutional. [ MARK WALLHEISER | Getty Images North America ]
Published Feb. 8, 2022

TALLAHASSEE — Does the Florida Supreme Court have the authority to advise Gov. Ron DeSantis on whether it’s lawful to dismantle two of Florida’s four Black-held congressional districts before legislators finish and approve a final map?

That is the question the court asked parties to address by noon on Monday in response to the governor’s request for an opinion, and seven briefs were filed.

Opponents, Democrat-backed advocacy groups, say no: It is a partisan attempt to change long-established Florida law and could open the door to unprecedented judicial interference in future legislation.

The governor and his allies, the attorney general and Republican-controlled Legislature, say yes: It’s a necessary opportunity to clarify legal standards that have been muddled by previous court rulings so that lawmakers can expedite the completion of maps this election year.

The decision will be pivotal to the fate of Florida’s congressional redistricting map and, potentially, the balance of power in the U.S. House of Representatives after the midterm elections in November. Regardless of what the Supreme Court decides, the map could still face legal challenges.

Black-held districts at issue

Primarily at issue is a congressional district approved by the Florida Supreme Court in 2015 that has three times elected U.S. Rep. Al Lawson, a Black Democrat.

In 2012, the GOP-controlled Legislature drew a district with a north-to-south configuration that stretched from Jacksonville to Orlando. It argued the configuration was “necessary to avoid diminishing the ability of Black voters to elect a candidate of their choice.”

But the court said the configuration was unconstitutional and ordered the Legislature to redraw District 5 “in an east-west manner,” from Jacksonville to Leon County.

Senate and House Republicans used that district as part of their “benchmark” and kept the configuration, arguing that the east-west district was necessary to avoid diminishing minority voting strength, as required by the Fair Districts provisions of the Florida Constitution. The Senate voted 31 to 4 for the redistricting plan.

In mid-January, DeSantis did something no other governor had done before. The governor, who has veto authority over the congressional map, publicly proposed an alternative map and urged the Legislature to adopt it.

Related: DeSantis redistricting map ignites intraparty discord

His plan would give Republicans in Congress an eight-seat advantage in Florida, two more seats than a map proposed by the Senate, and slash the number of Black-held congressional districts from four to two. It not only dismantled Lawson’s district, it also eliminated the Black-majority district now represented by U.S. Rep. Val Demings, a Black Democrat, in the Orlando area.

When the Legislature failed to consider the governor’s congressional map, DeSantis asked the state Supreme Court for an advisory opinion about the legality of changing the configuration of the North Florida district.

The governor asked the court if the law protecting minority voting strength “requires that congressional districts be drawn to connect minority populations from distant and distinct geographic areas” or, citing a 2017 U.S. Supreme Court case, asked if it must be a more “cohesive geographic area.”

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In his brief, the governor asked the court to weigh in on the meaning of “their” as it relates to redistricting. Specifically, he asked, what does the Fair Districts provision of the Florida Constitution mean when it says legislators may not diminish minority communities of the “ability to elect representatives of their choice.”

What does “their” mean?

The governor, citing the U.S. Supreme Court cases since the 2015 Florida court ruling, argued that “their” means “‘racial or language minorities’ within a reasonably cohesive geographic area’” and not stretched across 140 miles of North Florida as the current Congressional District 5 does.

“Florida’s non-vote-dilution provision therefore goes into effect when a reasonably cohesive district could be formed, and the non-diminishment provision goes into effect once the district has been formed,” the governor’s brief states.

The Legislature’s brief focused on the need for expediency in resolving the maps in time for the fall elections. Lawyers for the House and Senate argued that by supplying an advisory opinion, the court “might obviate judicial involvement in redistricting at later stages under even more pressing time constraints.”

Attorney General Ashley Moody argued that the governor “is not asking the court to address whether proposed legislation is unconstitutional” but whether the Constitution “requires the drawing of a certain congressional district.”

She argued that because it is within the governor’s authority to veto the congressional map, it is an executive function and, “like his role in the budgeting process, the governor must collaborate with the Legislature in crafting this mandatory, once-in-a-decade enactment.”

But that argument came under fire from opponents, who said that because the Legislature has not adopted a congressional map, the governor’s request for legal advice is unprecedented and premature.

If the court issued an advisory opinion, it would violate the “constitutional principle of separation of powers by entangling the court in the legislative drafting process,” wrote Common Cause Florida and FairDistricts Now in their brief.

They also warned that “adopting the governor’s position would open the floodgates for any governor to challenge any bill at any stage of the legislative process.”

All on the Line, the national redistricting advocacy organization run by Eric Holder, the former U.S. attorney general under Barack Obama, and Democratic Party elections lawyer Marc Elias argued that because the governor doesn’t draw maps, his request is an unconstitutional and “ill-conceived attempt to hijack the process.”

The opponents also warned that if the court issued an advisory opinion it could establish a new precedent in Florida, in which the governor could use the pretext of a veto to demand advisory opinions for any pending legislation.

U.S. Rep. Sheila Cherfilus-McCormick, a Fort Lauderdale Democrat who was elected to Congress to replace the late Alcee Hastings, also submitted a brief. She argued that the Florida Supreme Court lacks jurisdiction to issue an advisory opinion in a matter that is fundamentally a federal question and chastised the governor for overreaching.

“The governor reads his own authority too broadly,” Cherfilus-McCormick’s brief states. “The power to approve or veto laws does not make one a king, nor does it convert the Supreme Court to a privy council.”

Lawson, the congressman whose district the governor wants eliminated, chastised the effort and urged the court to avoid “being pulled into partisan disputes.”

“Ron DeSantis is asking the Florida Supreme Court to remove their judicial robes and instead wear partisan jerseys to further his own political interests,” he said. “DeSantis is asking the court to advise the Legislature, not his office, and pre-approve a partisan, gerrymandered congressional map that is not even pending in the state Capitol.”

The issue will be decided by only five of the seven justices on Florida’s highest court.

Chief Justice Charles Canady, whose wife is a candidate for the state House, recused himself as did Justice Alan Lawson, who is not related to the congressman. Neither provided a reason. Canady had written the dissenting opinion that rejected the Legislature’s 2015 attempt at redrawing its congressional map.

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