Yesterday was a pretty slow news day— except for one thing: the groups challenging DeSantis’ racist congressional gerrymander, won. Second Circuit Judge J. Lee Marsh, originally appointed to the bench in 2018 by Rick Scott, struck down the map DeSantis used to turn the Florida congressional delegation whiter and more right-wing in clear defiance of the voter-passed Fair Districts Amendment. The ruling— which will be challenged by the Florida racists— would give Blacks in Jacksonville, Tallahassee and Gadsden County an opportunity to elect another Black Member of Congress.
The appeal will come fast and, as we noted last week, it’s likely that a new map will be in effect in time for the 2024 election, when Alan Grayson said that “It has simply been another way for DeSantis to assert dictatorial powers. The Jacksonville-centered African-American Congressional seat was established 30 years ago. DeSantis thought that he could steal it for the GOP, and he did.”
Yesterday, thee Jacksonville Tributary reported that DeSantis had argued that “mandatory protections for Black voters violated the Equal Protection Clause; Second Judicial Circuit Judge J. Lee Marsh flatly rejected that gamble… refused to bite on DeSantis’ claim that the state’s Fair Districts Amendment violated the U.S. Constitution, saying DeSantis’ secretary of state and the Legislature didn’t even have standing to make such an argument. ‘The Secretary can point to no case finding the non-diminishment language of the Fair Districts Amendment, nor the comparable Section 5 language of the Voting Rights Act, to violate the Equal Protection provision of the 14th Amendment… The judicial branch alone has the power to declare what the law is, including whether the Florida Constitution’s provisions are themselves unconstitutional.’ Marsh wrote.”
Replying to DeSantis’ lawyers’ argument that court-ordered district last decade was a racial gerrymander, Marsh said, “This Court will not second-guess the Florida Supreme Court.”
A joint agreement between the state and plaintiffs should ensure a quicker-than-normal appeals process and allow a new map before 2024’s elections unless the appellate courts rule before then.
“We applaud the judge’s ruling recognizing the need to restore the voting power of Black Floridians in North Florida, and paving the way for a map that empowers voters in that region to select a candidate of their choice,” said Jasmine Burney-Clark, founder of the Equal Ground Education Fund. “Floridians must not forget this racially motivated assault on our democracy.”
The state must file a notice of appeal by Monday. Both parties intend to request that the Florida Supreme Court hear the case directly, skipping the usual step of going through a lower appellate court. They will also propose a schedule to allow the state’s highest court to decide by Dec. 31.
Typically, an appeal pauses trial court rulings. However, thanks to a joint agreement made last month, the state has committed to requesting the court lift that automatic hold.
That would allow the court to proceed with a remedial process for a new map while the state appeals the court’s decision.
The Legislature will get a first chance at drawing a new map, which the plaintiffs could challenge. If the Legislature doesn’t draw a new map, both sides agreed to accept a district that spans from Duval to Gadsden, similar to the Legislature’s initial proposal.
Last year, DeSantis rejected the Legislature’s proposed congressional plans and drew his own. His version removed a district that would have given Black voters in Jacksonville a better chance to elect their preferred candidates, replacing it with whiter, more Republican districts.
DeSantis conceded that his map did not meet the state’s ‘non-diminishment’ standard, which mandates that new districts must not undermine the voting power of racial minorities.
The protection mirrors language in Section 5 of the Voting Rights Act, and the state argued Marsh should strike down that protection as violating the Equal Protection Clause of the 14th Amendment.
At a hearing last month, Marsh questioned why Florida Attorney General Ashley Moody wasn’t defending the state’s constitution in the case.
He also expressed sharp skepticism that he could make such an expansive ruling. Marsh said that if he ruled for the state, “this court will be the first in the country to say that even the Voting Rights Act is unconstitutional.”
Marsh also criticized the secretary of state’s attempt to apply a more stringent, unrelated test used for vote-dilution claims under Section 2 of the Voting Rights Act. DeSantis’ lawyers tried to claim that the non-diminishment standard required the ability to draw a compact, Black-majority district.
“The Secretary’s arguments have no basis under either federal precedent or Florida Supreme Court precedent,” Marsh wrote.
If the Florida Supreme Court sides with DeSantis, it could have national implications.
It means the court, a majority of whom DeSantis appointed, would go further than the U.S. Supreme Court has in advancing a legal argument, pushed by many conservatives, that it’s inherently wrong to take race into account, even if it’s done to preserve the political voice of Black voters.
DeSantis’ veto of the initial map and the GOP-controlled Legislature’s decision to adopt his new one sparked an historic protest in the Florida House where Reps. Angie Nixon (D-Jacksonville) and Travaris McCurdy (D-Orlando) led a sit-in to disrupt the proceedings.
After that protest, DeSantis vetoed all of Nixon’s appropriations in the current budget, and legislative leadership put her office in the basement of the Florida Capitol.
Michael Li, senior counsel for the Brennan Center’s Democracy Program, said that the ruling wasn’t a surprise since the governor had already admitted his map violated the state constitution. Now everyone will wait to see what the Florida Supreme Court and potentially the U.S. Supreme Court does.
“That shouldn’t obscure the fact, though, that this is a huge win for Black voters,” he said. “The dismantling of FL-05 was one of the most brazen acts of discrimination against Black voters this decade. States like Alabama and Louisiana didn’t create new Black opportunity districts, but Florida is one of the few places, at the congressional level at least, where a state proactively dismantled one.”
Although the corrupt, old conservative Al Lawson is expected to run again. The best possible result would be for Jacksonville state Rep. Angie Nixon to become Florida’s next member of Congress.