DeSantis takes over redistricting, bracing for legal battle

TALLAHASSEE — You do it.

That is the defiant message Florida’s Republican legislative leaders sent Gov. Ron DeSantis last week after the governor vetoed a compromise plan to redraw Florida’s congressional districts, then called legislators back into a special session starting Tuesday to try again.

House Speaker Chris Sprowls and Senate President Wilton Simpson announced the Legislature’s redistricting staff would neither draft nor produce a map for the special session but instead would await the governor’s plan. After “consulting” with the House and Senate redistricting experts, the governor’s general counsel submitted a map on Wednesday.

It is just as the governor promised.

The map reconfigures the state’s current congressional districts, gives Republicans four additional favorable seats, eliminates two districts now held by Black Democrat U.S. Reps. Al Lawson of North Florida and Val Demings of Orlando, and potentially sets in motion years of legal challenges.

It’s an upset fruit basket approach, predicated on what Sprowls last month called a “novel legal argument.”

But it also pits the present-day ambitions of a governor eager to make his mark on the national stage against the decade-old desires of Florida voters, who in 2010 passed the state’s anti-gerrymandering law that requires lawmakers not to diminish the voting strength of minority voters.

Democratic Party chairperson Manny Diaz, whose party is powerless to block passage of the map, called the development “appalling, but not surprising.”

“His goal is to eliminate minority access seats to build more Republican domination in Congress to give himself an advantage going into the presidency by having more Republicans from Florida in Congress,” said Rep. Kelly Skidmore, the ranking Democrat on the House congressional redistricting committee. “Everything is about what is good for Ron DeSantis and his election. That is just where we are and it’s devastating.”

This could frame ‘22 congressional elections

Assuming the governor signs the map legislators approve, the configuration will serve as the political boundaries in Florida for the next decade, unless a court ruling invalidates them — a process that could take years.

“Gov. DeSantis is clearly starting a war and firing a first shot,” said Michael Li, an expert on redistricting law at the Brennan Center for Justice. “It’s hard to see how this doesn’t end up in court litigation. And, as with any war, once you’ve started, it’s hard to control what happens.”

For decades, the federal Voting Rights Act has served as a check on partisan gerrymandering by preventing lawmakers from breaking up communities of Black, primarily Democratic, voters, Li said. Courts have said that compliance with Section 2 and Section 5 of the Voting Rights Act are compelling state interests and, in 2010, Florida voters adopted the Fair Districts Amendments that parallel the federal Voting Rights Act protections by prohibiting the diminishment of minority voting strength when lawmakers redraw political boundaries every 10 years.

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But DeSantis has put forth a new argument, suggesting that the North Florida minority district approved by the court in 2015 was a “racial gerrymander” because it was not compact enough to meet a “narrowly tailored state interest.”

Legislators this year attempted to appease the governor by passing a map that created a Jacksonville-centric district in North Florida while dismantling the current district that stretches across the top of the state. He said the compromise was still not “race-neutral” enough and cited Cooper v. Harris, a 2017 case in which the U.S. Supreme Court ruled 5-3 that the North Carolina General Assembly engaged in “unconstitutional racial gerrymanders” by relying on race too heavily when it drew two congressional districts following the 2010 Census.

Republicans also point to Rucho v. Common Cause, in which the U.S. Supreme Court ruled in 2019 that while partisan gerrymandering may be “incompatible with democratic principles,” the federal courts cannot review such allegations. In a 5-4 opinion written by Chief Justice John Roberts, the court ruled that partisan gerrymandering claims are not “justiciable” because they present a political question beyond the reach of the federal courts.

The governor’s proposed map dismantles Congressional District 5 in North Florida and Congressional District 10 in Orlando. District 5, held by Lawson, was created in 2015 by the courts by linking communities along the former plantation territories of North Florida between Jacksonville and Tallahassee. District 10 in Central Florida is held by Demings.

Li said if DeSantis and other Republican governors can persuade the courts “to reinterpret the Voting Rights Act in a way that means you can’t deliberately set out to create minority districts, then that likely gives them totally free rein.”

Possible political consequences

For Florida, the stakes are high, with these short- and long-term consequences:

• Political dominoes: Florida’s county elections supervisors say they need the congressional map finalized in the next few weeks in order to get precinct boundaries in place in time for candidates to qualify for the state’s 28 congressional elections by the June 17 deadline. Meanwhile, dozens of candidates across the state are waiting to see where the final lines land to decide whether to run for Congress or decide on a down-ballot legislative race.
• Republican dominance: If the governor succeeds in getting passage of his map, it could help Republicans regain control of the U.S. House of Representatives, where Democrats now hold a narrow 12-member majority, and give Republicans a 20-8 edge in the Florida delegation. The current split of the Florida congressional delegation is 16 Republicans and 11 Democrats, and the state gets an additional district because of its population growth.
• Minorities in Congress: The governor’s map also could reduce the number of Black Democrats elected to Congress for the first time since 1992, when federal courts ordered three seats drawn to allow Florida’s African American voters to elect minority candidates to Congress for the first time since Reconstruction. In 2015, the courts added a fourth district in Orlando that includes a majority of Black and Hispanic Democrats. There are currently five Black Floridians serving in Congress: four Democrats and one Republican.
• Years of lawsuits: Democrats and left-leaning voter advocacy groups have already signaled there will be a legal challenge if the governor’s map becomes law. Redistricting lawsuits can often take years and could require the governor and legislators to either be deposed or turn over documents to defend against any allegations of illegal partisan intent.
• Fair Districts at risk: Opponents of the governor’s map argue that it violates the Fair Districts provisions of the Florida Constitution, which prohibit lawmakers from approving maps that favor incumbents and political parties or diminish the voting ability of racial and language minorities from electing candidates of their choice. Experts say the governor’s argument could diminish, if not nullify, those provisions.

How will Republican legislators respond?

Republican legislators appear resigned to the governor’s clout, but questions remain about whether they fully embrace his legal theory.

DeSantis first broke with tradition and proposed his own congressional redistricting maps during the regular legislative session, but Republican leaders twice rejected those maps.

Now that DeSantis has submitted a map that includes much of his original plans, Sprowls and Simpson said their “goal during the special session is to pass a new congressional map that will both earn the governor’s signature and withstand legal scrutiny, if challenged.”

That goal, however, is complicated.

Unlike state legislative maps, which require the approval of the state Supreme Court, Florida’s congressional map only needs the governor’s signature to become law, and the decision by legislative leaders to cede that job to the governor was an unusual move.

In a memo to senators when the governor submitted his map last week, Senate Appropriations Committee chairperson Ray Rodrigues wrote: “This proposal comes following meaningful discussions with our Senate legal counsel.”

But after the governor’s general counsel released his own memo saying the map “was the product of collaboration and consultation with the House and Senate leadership,” Senate spokesperson Katie Betta made it clear that lawmakers were keeping their distance.

“As was communicated on Monday by President Simpson in his joint memo with the speaker, Senate staff did not draw or advise on any district lines,” she said in an email to the Times/Herald.

Carefully following a legal path

For the last nine months, legislative leaders have carefully worked to avoid being entangled in a prolonged legal fight like the redistricting battle of a decade ago.

After passing their maps in 2012, Republican legislators were called to testify in two landmark court cases that invalidated the Senate and congressional maps after House and Senate leaders were found to have created a “shadow redistricting process” that illegally allowed GOP political consultants to secretly submit maps.

This time, advised by outside lawyers, including several who were on the Legislature’s legal teams from a decade ago, the leaders put strict limits on the input they received from average citizens, political consultants and lobbyists.

They required anyone who attempted to address them at a public meeting to submit a disclosure form that indicated if they were a lobbyist or getting expenses paid, and they prohibited legislators from considering maps submitted by the public, unless a lawmaker explicitly requested the map in writing.

The House and Senate also required lawmakers to retain all records of communications about maps. And they decided not to conduct public meetings around the state to collect citizen input about how voters would like the maps drawn.

It seemed to have worked. When they passed their redrawn House and Senate maps, which do not require the approval of the governor, the Florida Supreme Court approved them and, to date, the legislative maps have not drawn any legal challenge.

Legislators redrew the House and Senate redistricting maps with a goal of not diminishing minority districts. The governor paid for Robert Popper, a conservative redistricting expert from Judicial Watch, to testify before the House Redistricting Committee in February against Congressional District 5, arguing it violated the federal court test because it was not compact enough. House Republicans grilled him with skepticism.

“Do you agree that going from the current CD 5 to the governor’s district diminishes the ability to elect?” asked Rep. Kaylee Tuck, a Lake Placid attorney. Popper said he didn’t think so but couldn’t point to a distinct ruling.

According to Florida’s Fair Districts provisions, protecting minority voting rights takes precedence over the county boundary and compactness issues.

If the governor’s theory holds, the Legislature’s House and Senate maps may also be vulnerable to having violated the 14th Amendment, said Michael McDonald, a University of Florida political science professor and redistricting expert who has worked with Democrats and voter advocacy groups.

“Their state legislative districts are just smaller versions of the 5th Congressional District in many cases and many places around the state,” he said. “There are other districts that are scattered throughout the state that also could be in violation of the 14th Amendment under DeSantis’ theory.”

DeSantis is prepared for the legal battles. “You’re going to have litigation either way,’’ he said last week “But I think the odds are higher that a map that is race-neutral will be approved.”

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