TALLAHASSEE — The conflict between Gov. Ron DeSantis and the Florida Legislature came into sharper focus Friday as the governor’s office paid for a conservative redistricting expert to appear before the House Congressional Redistricting Subcommittee and the committee rejected his arguments.
Robert Popper, a senior attorney with the conservative activist group Judicial Watch, told the committee that if it moves ahead with its map that leaves in place a North Florida congressional district that stretches across several counties, it could “be in trouble” if the map were to be challenged before the U.S. Supreme Court.
“I’m talking as a lawyer. This district is going to have problems in federal court,” Popper told the House Redistricting Subcommittee.
A redistricting expert who was one of the founders of the Polsby-Popper score used to measure the compactness of a district, Popper argued that because the North Florida district — which the House has named District 3 — is not compact, it is not “narrowly tailored” and violates the “strict scrutiny” requirements in recent court opinions.
“The entire map is going to end up in litigation, we know that,” he warned. “I respectfully submit that this committee and this House would want to be holding the strongest hand that it could. District 3, as drawn, does not permit that.”
The warning sets the stage for what could be the long-range goal of the governor, who has all but threatened to veto a congressional redistricting map if it includes the district that has elected U.S. Rep. Al Lawson, a Tallahassee Democrat, who is Black. The district was approved by the court a decade ago to link together Black communities from the antebellum South in an effort to allow minorities in the region to elect a candidate of their choice.
Last week, the Florida Supreme Court rejected the governor’s request to provide legal guidance over whether legislators should dismantle the Black-held congressional district in North Florida.
Absent the court’s advice, Florida Republican leaders have so far defied the Republican governor and failed to embrace his argument.
The Senate unanimously passed its congressional redistricting map that included four districts that would likely elect Black candidates to Congress, a configuration that would leave the Republican majority in a 28-member congressional delegation at 16, with 12 seats, including a new one in Central Florida, likely able to elect a Democrat.
The House committee on Friday voted 14-7 along partisan lines to adopt a map with only three districts that would likely elect Black candidates to Congress, dismantling the Orlando-based district currently held by U.S. Rep. Val Demings, a Black Democrat, but leaving the district that elected Lawson intact.
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DeSantis has called Lawson’s district an “illegal gerrymander” and said he would reject any map that has it in it. He has submitted two maps that create only two districts in the state that preserve Black voting strength, dismantling the Lawson and Demings districts.
Unlike the Senate’s congressional plan, both the House map and the governor’s give Republicans two additional seats in the congressional delegation by creating districts that would likely elect an 18-10 Republican majority.
Under questioning by Republican members of the committee on Friday, Popper confirmed that his airfare to Tallahassee and his hotel were paid by the governor’s office.
DeSantis spokesperson Taryn Fenske said that those expenses were paid by the legal counsel hired by the governor at taxpayer expense but, she noted, the House asked the governor to provide a witness to appear.
According to Judicial Watch, a group that has earned its reputation by filing Freedom of Information Act lawsuits to investigate claimed misconduct by government officials, Popper specializes in gerrymandering cases and has been with the organization since 2013.
Fair Districts under fire?
Popper’s testimony brought into focus the governor’s legal argument and raised the prospect that the governor may be preparing to argue that the Fair Districts standards of the Florida Constitution may come into conflict with the federal court’s interpretations of redistricting law.
In 2010, Florida voters overwhelmingly approved the Fair District standards, prohibiting the Legislature from drawing districts that favor incumbents or political parties or diminish the ability of minority voters from electing candidates of their choice.
The standards also require that legislators give priority to preserving the voting strength of minority voters over the geographical compactness of minority voters.
Members of the committee, many of whom had read Popper’s written testimony ahead of the meeting, peppered him with legal questions.
Rep. Daniel Perez, a Miami Republican and a lawyer, asked how a court should weigh the equal protection standards of the U.S. Constitution against the Fair District standards of the Florida Constitution.
“Would it be fair to say that the 14th Amendment would invalidate the Fair District amendments — specifically, the prohibition on not diminishing the ability of minority communities to elect a candidate of their choice?” he asked. “If it does not, then why is complying with the Florida Constitution not a compelling state interest?”
“It depends,” Popper answered. “My testimony is not to suggest that the Fair Districts amendment would be unconstitutional and all its applications.”
“Can you point us to a district that does not diminish minority voting ability but is more narrowly tailored?” asked Rep. Tyler Sirois, R-Merritt Island, the committee chairperson.
No, Popper answered.
Rep. Kaylee Tuck, R-Lake Placid, asked if Popper agreed with Florida Supreme Court Chief Justice Charles Canady’s dissent in the redistricting case from a decade ago in which he interprets the state’s redistricting standards that prohibit the state from diminishing minority voting access.
“I’m not an expert in Florida law,” Popper answered.
Could he cite any federal court decisions relating to Section 5 of the federal Voting Rights Act that “requires that a district must be compact?” Tuck continued.
No, Popper said, adding that he knows of case law where a non-compact district was rejected.
And does he agree that adopting the governor’s map for the North Florida district “will diminish the ability to elect” Black candidates, Tuck asked.
“It’s ambiguous,” Popper answered.
The intense grilling from Republicans prompted Democrats to conclude that Popper was not there to help them draw maps that abide by Florida law.
“We’re here, big picture, trying to weigh what is best for the residents of Florida,” said Rep. Christine Hunschofsky, D-Parkland.
She asked if there was “a compelling justification” to have less representation from minority candidates “in favor of more compactness?”
Popper continued with his warning. “This district is going to have problems in federal court,” he said.
By the end of the meeting, Sirois commended Hunschofsky because her question “just cut to the heart of the matter.”
He then read the redistricting standards of the Florida Constitution and concluded: “We have to follow the law.”
“I want to assuage any doubt that may be in front of you today,” he said. “This is a legally sound map. It’s a constitutionally compliant map. Please join me in voting yes.”
Democrats said they are hopeful the governor’s approach will continue to be rebuffed by their Republican colleagues as the House and Senate work out differences in their congressional maps.
“We are the architects of our congressional and House and Senate maps and the governor is not — despite his attempts at interference,” said Rep. Kelly Skidmore of Boca Raton, the ranking Democrat on the committee. “The process worked, and he has been shut down and his paid testifier today didn’t change anybody’s opinion on that.”
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