The DeSantis map – The Voting Rights Act, Fair Districts Amendment, African-American representation and the coming legal hurdles

Powerful Florida Governor Ron DeSantis’s latest congressional redistricting map has taken center stage in political circles this week as Florida’s legislators gather in Tallahassee for a special session called by the governor to consider whether to adopt the new map.

This the latest and most brazen map yet submitted by Governor DeSantis and his team of legal eagles, but the first such proposal since the governor’s stunning decision last month to veto two maps that had achieved bipartisan approval without a single legal challenge being raised to either.

At the time that bill (SB 102) passed, House Speaker Chris Sprowls (R, Palm Harbor) took a well-earned bow, accurately noting that not a “solitary argument was presented to challenge the maps” or to allege a violation of Florida’s Fair District Amendments, which govern how redistricting is to occur under Florida law and passed with a massive 62% of the vote during then-Governor Rick Scott’s first term. The Fair District Amendments are codified into law in Article III, Section 21 of the Florida Constitution.

The bipartisan approval of the SB 102 maps facilitated hope, albeit briefly, that Florida’s new state and federal maps would avoid the types of messy, willful defiance of constitutional mandates that have led to exhaustive redistricting and gerrymandering litigation recently in places like Alabama, North Carolina, and Kentucky, among other southern states.

Instead, Governor DeSantis vetoed the bipartisan maps on March 29, alleging that the new maps violated the Fourteenth Amendment’s equal protection clause because they were not “racially neutral,” despite a lack of any equal protection challenge lawsuit or any court finding (or even a solitary law review article) bolstering this claim.

In their stead, Governor DeSantis proposed an audacious and bitterly partisan new map, one which, if adopted, would give the Republicans 20 majority districts against just 8 for the Democrats (Florida has 28 seats thanks to the 2020 U.S. Census). More troubling than the partisan tilt in seats, though, is the fact Governor DeSantis’s new map would leave just two “performing-Black” or “majority-minority” Black districts, compared to the four which existed under the Legislature’s bipartisan map. To do this, Governor DeSantis and his legal team had to gerrymander a 180 mile stretch of land from Lakeland to Naples into one sprawling Republican district and then split two large, predominantly black areas of Duval County, where the Legislature wanted to create a district to reflect the reality that Jacksonville’s black voters have historically had seats in local government and consistently been elected as community leaders, into two majority-white districts.

The map is the latest in a series of aggressive maneuvers taken by Governor DeSantis during his term that disproportionately targets black citizens via disenfranchisement, voter dilution, election subversion, and now, draconian gerrymandering tactics. One need to look no further back than to DeSantis’s efforts to undermine the efforts of Amendment Four, which overwhelmingly reflected the bipartisan will of Florida voters to allow returning citizens (who in the highest frequencies are black) to have access to the ballot box after serving their terms of incarceration, to see the governor’s long pattern of contempt for any measures that allow easier access to the franchise. That the new redistricting map is as ruthless and brash as it is seems to be more a reflection of the powerful Florida governor’s growing national profile and presidential ambitions than it is about any sudden change in heart about the merits of participatory democracy.

By Gage Skidmore from Surprise, AZ, United States of America – Ron DeSantis, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=107762178

Whatever Governor DeSantis’s true motivations, the impact of his and other national assaults on voting rights and the failure of a Democratic Congress to respond with national voter protection legislation is clear.

A January 2022 survey conducted by CBS News showed that 78% of black voters in America believe that new voting rights laws and gerrymandered maps disproportionately impact their right to vote and have their voices heard in both local and national politics. Such staggering skepticism of the system, less than 60 years after the passage of the Voting Rights Act, speaks to both the reality of the renewed assault on minority voting rights that has occurred since the 2020 election and the need for both independent voting advocacy groups, as well as President Biden’s Department of Justice to act swiftly. Confidence not only in voting rights, but in the sustainability of American participatory democracy, hangs in the balance.

A rubber stamp of the new, Governor DeSantis-approved redistricting map is all but assured when Florida’s special session commences on Tuesday, as too many in the Florida Republican party lack the political will to do anything beyond capitulate to DeSantis and his agenda.

The DeSantis map being adopted into law, of course, will only be the beginning of a broader dialogue about not only the map’s legality, but about the legitimacy of gerrymandering and the remaining power of the Voting Rights Act and accompanying state laws to do anything to shield the citizenry from racially discriminatory maps and partisan-based election laws passed in the name of “election integrity.” This is perhaps the lasting and telling effect of “Trump’s big lie” on the democratic process, and it is one being weaponized masterfully by Governor DeSantis in Florida.

As it relates to the narrower question, the map proposed by Governor DeSantis has at least one obvious and immediately racially discriminatory impact. It eliminates two proposed majority-minority black districts, both in north Florida and in central Florida, and reduces the number of black minority-majority districts from four to two.

This is, at a minimum, a clear violation of Florida’s Fair District Amendments, which explicitly prohibit any redistricting plan which is drawn “with the intent to favor or disfavor a political party…” or “with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or diminish their opportunities to elect representatives of their choice…” See, Florida Constitution, Art. 3, Section 21(a).

Even if a court does not find the creation of a map that adds as many as 2 new GOP seats into the Florida congressional fold to be one drawn with the “intent to favor or disfavor a political party,” the effect of vote dilution in black communities, especially in areas like Lakeland and Jacksonville, along with the removal of 2 black congressional districts, is a clear violation of the Fair District Amendments. These challenges present immediate state court hurdles for Governor DeSantis’s map to clear, though we should consider that a protracted court battle may be his ultimate aim, as will be explained below.

The best long-term challenges to Governor DeSantis’s ambitious new maps will certainly come under Sections 2 (and interestingly, at least in the view of this author, Section 3) of the Voting Rights Act.

Section 2 of the Voting Rights Act prohibits voting restrictions and political maps that dilute the votes of any minority group. In the case of Governor DeSantis’s new map, the argument that the gerrymandered districts impermissibly dilute the votes of black Floridians under Section 2 is relatively straightforward.

The judicial test for whether a redistricting map diminishes or weakens minority voting power so much that it constitutes an unconstitutional dilution of voting power was established in the 1986 Supreme Court decision Thornburg b. Gingles. Under the Gingles test, a minority group challenging a voting map must show the court that (1) it is a sufficiently large, geographically compact group that constitutes a majority in a single-member district; (2) the minority group is politically cohesive; and (3) that the majority group votes sufficiently as a bloc to defeat the minority groups’ preferred candidates.

Section 2 Voting Rights Act challenges are established by a “totality of the circumstances” and the key goal is to ensure minority voters have ample and equal opportunity to participate in the political process and elect the candidates of their choice.

This type of challenge squares perfectly with the complaints of black citizens in Jacksonville and Gadsden County, where geographically compact, large groups of politically cohesive black voters, already in a single member district (Representative Al Lawson’s, for the time being), are being folded into three different white majority voting blocs that will all but inevitably vote against the minority groups’ preferred candidate. This type of minority voter dilution is precisely what Section 2 of the Voting Rights Act sought to prevent.

If a Section 2 violation is found, the District Court finding such a violation may, as a remedy, require a new map containing “one or more majority-minority districts” be created, to protect the denial or abridgement of the right to vote based on race, color, or membership in a language minority. A “majority-minority” district is one in which a racial minority group comprises a voting majority.

Interestingly, a Section 3 Voting Rights Act challenge may also be fitting here, given Governor DeSantis’s track record of assailing voting rights in any form. Section 3 allows, under a mechanism called a “bail-in”, judges to impose additional federal oversight of election law, specifically in cases where states and local governments are found to be repeat offenders in designing laws that disproportionately impact the franchise on account of race.

When passed, the Voting Rights Act had two separate, explicit provisions designed to stem the stain and harm of jurisdictions and states with a “history of racial discrimination” from a century of enacting laws that diluted, restrained, or gutted minority access to the ballot and political process. The most aggressive of these provisions was Section 5 of the Voting Rights Act, which enforced the coverage requirement in Section 4(b) of the Voting Rights Act which required that jurisdictions with a history of racial discrimination seek “preclearance” for any new voting changes. “Preclearance” and section 4(b)’s preclearance formula, were, unfortunately, largely gutted by Chief Justice Roberts in the Supreme Court decision of Shelby County v. Holder in 2013, a case which neutered Section 5 by essentially holding that American racism had reached a point of improvement where “preclearance” was no longer necessary.

Would a Section 3 challenge—which would effectively allow consideration of Florida’s history of racial discrimination on voting rights issues determine whether federal intervention was needed— survive in Court? That’s more complicated, though some legal scholars and voting rights advocates, including this author, fear that the Supreme Court, which is now even more conservative than the Court that decided Shelby County, may simply find the bail-in provisions of Section 3 of the Voting Rights Act unconstitutional. At a minimum, if the Shelby County Court could hold that the rain of racism was no longer impacting voting rights because Section 5 of the Voting Rights Act gave black and brown Americans an umbrella; the deeply conservative 11th Circuit seems likely to rule that Florida does not need federal oversight in crafting its election laws.  

On the other hand, it is encouraging that Section 2, which has been repeatedly upheld, even by conservative courts, allows for consideration of the history of official, and racial discrimination in the state that has touched or impacted the rights of members of the minority group in question to participate in the democratic process or vote. Democratic appointees, like Judge Walker of the Northern District of Florida, who last month struck down as racially discriminatory a number of provisions in Florida’s “Election Integrity” Law advanced by Governor DeSantis, may wield both Section 2 and 3 as a sword, and rightly so. But it isn’t just Democratic appointees, as the decision of a three-judge panel in Alabama, led by two Trump appointees, striking down a proposed Alabama law as racially discriminatory in violation of Section 2 earlier this year aptly demonstrates.

Of course, a protracted legal battle may be just what Governor DeSantis wants. A Machiavellian politician whose sole ambition and goal is to become President of the United States, DeSantis likely knows that an extended fight between his political map and the judiciary—especially the federal judiciary—only enhances his place in the national spotlight. Further, if, as DeSantis likely calculates, conservative judges’ rule with him, there is zero downside to spending tax dollars litigating the matter in the federal courts. If conservative courts rule in his favor, DeSantis is a champion of conservatism. If courts reject him, the governor can label them as “activist” and immediately procures a ready-made campaign example of why the nation needs more “principled” conservative justices. Plus, there’s always the largely safe gamble that in the end, the deeply conservative Supreme Court of the United States will side with Governor DeSantis.

In other words, as the special session begins, Governor DeSantis has nothing to lose. Black Floridian citizens and those concerned about the future of participatory American democracy? They stand to lose everything. But as Judge Walker pointed out in his opinion last month, after years of the majority in the Florida Legislature systematically attacking or rubber-stamping assaults on the voting rights of their black constituents, is that any surprise?

At this point, the larger surprise would be a win for voting rights, and a sign that yes, the arc of the moral universe does still bend towards justice.

One comment

  1. […] Governor DeSantis arbitrarily-drawn Congressional Map which was rubber-stamped by the legislature has potentially many Voting Rights Act-related problems as articulated earlier this week by Neil Blackmon. […]

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