Sec'y of State Byrd v. Black Voters Matter Capacity Bldg. Inst.
| Docket Number | 1D2023-2252 |
| Decision Date | 01 December 2023 |
| Parties | Secretary of State Byrd, the Florida House of Representatives, and the Florida Senate, Appellants, v. Black Voters Matter Capacity Building Institute, Inc., Equal Ground Education Fund, Inc.,League of Women Voters of Florida Education Fund, Inc., Florida Rising Together, Pastor Reginald Gundy,Sylvia Young, Phyllis Wiley, Andrea Hershorin, Anaydia Connolly, Leela Fuentes, Brandon P. Nelson, Kaitlyn Yarrows, Cynthia Lippert, Kisha Linebaugh, Nina Wolfson, Beatriz Alonzo, Gonzalo Alfredo Pedroso, and Marvin Hudson, Appellees. |
| Court | Florida District Court of Appeals |
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Leon County. James Lee Marsh, Judge.
Mohammad O. Jazil, Michael Beato, Ed Wenger, and Gary V Perko of Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Tallahassee; and Bradley R. McVay, Joseph S. Van de Bogart, and Ashley E. Davis, Florida Department of State Tallahassee, for Appellant Secretary of State Byrd.
Andy Bardos of GrayRobinson, P.A., Tallahassee, for Florida House Appellants.
Daniel E. Nordby, George N. Meros, Jr., and Tara R. Price of Shutts & Bowen LLP, Tallahassee; and Carlos Rey and Kyle Gray, Florida Senate, Tallahassee, for Florida Senate Appellants.
Henry C. Whitaker, Solicitor General, Tallahassee; Jeffrey Paul DeSousa and Daniel W. Bell, Chief Deputy Solicitors General, Tallahassee; David M. Costello, Deputy Solicitor General, Tallahassee; and Bilal Ahmed Faruqui, Assistant Attorney General, Tallahassee, for Attorney General Ashley Moody.
Frederick S. Wermuth, Quinn B. Ritter, and Thomas A. Zehnder of King, Blackwell, Zehnder & Wermuth, P.A., Orlando; and Christina A. Ford and Jyoti Jasrasaria of Elias Law Group LLP, Washington, D.C., for Appellees.
En Banc
On review is a declaratory judgment. In it, the trial court determined that Chapter 2022-265, Laws of Florida[1]-setting out the legal boundaries of the State's congressional districts based on the post-2020 census federal reapportionment-conflicts with Florida's congressional Fair Districts Amendment ("FDA")- article III, section 20, of the Florida Constitution.[2] The enactment, according to the trial court, "dismantl[ed] a congressional district that enabled Black voters to elect their candidates of choice under the previous plan"-a court-ordered configuration of districts to remedy what had been determined to be an unconstitutional partisan gerrymander under the same FDA.
The trial court rendered its judgment as a legal matter. There was no trial, and the court appears to have relied entirely on the parties' stipulations. We can resolve this appeal by answering a simple legal question: In order to demonstrate a legally cognizable claim that an "apportionment plan or individual district . . . diminish[es] [a member of a racial minority's] ability to elect representatives of [his or her] choice," does a plaintiff first have to establish that he or she is part of a geographically discrete and compact minority community of historically natural existence? Art. III, § 20(a), Fla. Const. The trial court found it unnecessary to answer the question, and the plaintiffs failed to submit any evidence to this effect.
We however, say yes. Cf. Voting Rights Act of 1965, §§ 2(b), 5(b) (as amended), codified at 52 U.S.C. §§ 10301(b), 10304(b) (hereinafter, "VRA"); Thornburg v. Gingles, 478 U.S. 30, 49-51, n.15-17 (1986) (highlighting need for "a politically cohesive, geographically insular minority group" to support claim about "ability of minority voters to elect representatives of their choice"); League of Women Voters of Fla. v. Detzner, 179 So.3d 258, 286 n.11 (Fla. 2015) ("Apportionment VIII") (). We address these citations in the discussion that follows.[3] In the end, we must reverse.
Tallahassee and Jacksonville are separated by about 160 miles of interstate highway (and two Busy Bee fuel-and-convenience destination stops[4]), plus ample byways, farmland, and small communities. The two cities also are separated by drastically different origins and histories-one as a compromise capital location midway between Pensacola and St. Augustine, and the other as a port city and winter vacation destination.[5] In 2017, though, the two cities found themselves lumped together into a single congressional district-Congressional District Five ("CD-5")-as part of a court-ordered remedy for a legislative violation of another part of the FDA: the proscription against defining a congressional district "with the intent to favor or disfavor a political party or an incumbent." Art. III, § 20(a), Fla. Const.; see League of Women Voters of Fla. v. Detzner, 172 So.3d 363, 370-72 (Fla. 2015) ("Apportionment VII") ().
Before 2010, CD-5 had a north-south orientation, meandering from Jacksonville to Orlando, and it consistently elected a Black member of Congress. Following the 2010 census, the Legislature redefined CD-5 to increase the Black voting age population ("BVAP") in the district to over fifty percent-a so-called majority-minority district. See Apportionment VII, 172 So.3d at 386. The trial court found, after a trial on a challenge to the 2010 redistricting plan alleging that the district was drawn with improper partisan intent, that there had been no showing of legal necessity to create such a district, and the court concluded that CD-5 (along with CD-10), in part, had been "drawn" to benefit the Republican Party. Id. The trial court ordered the Legislature to provide a new delineation of CD-5, CD-10, and "any other districts affected thereby." Id. It rejected challenges to several other districts. Id. The Legislature enacted a new plan that made "modest changes to" CD-5 and CD-10, and the trial court approved the new plan. Id.
On appeal from the trial court's order, the supreme court concluded that the trial court's remedy did not give sufficient effect to the higher court's determination that "the redistricting process and resulting map were 'taint[ed]' by unconstitutional intent to favor the Republican Party and incumbents." Id. at 416. The supreme court noted that the "finding of unconstitutional intent . . . mandated a more meaningful remedy commensurate with the constitutional violations [the trial court] found." Id. Along those lines, the court took umbrage with the trial court's rejection of the challengers' proposed east-west configuration of CD-5 and its approval of a slightly modified CD-5 that still ran north-south. See id. at 402-03. The court in particular took issue with the trial court's failure to elaborate on the "non-partisan policy reasons" that it had found existed for the Legislature's preference for a north-south configuration, especially given the challengers' contention that "the North-South configuration of this district [was] a linchpin to the Legislature's efforts to draw a map that favors the Republican Party." Id. at 402 (emphasis supplied).
The supreme court rejected the Legislature's explanation for the north-south orientation, noting that the "configuration was entitled to no deference in light of the trial court's finding of unconstitutional intent . . . to benefit the Republican Party." Id. at 403. It also noted that the configuration "had the effect of benefitting the long-time incumbent of the district, Congresswoman Corrine Brown," a Black woman. The court explained further, as follows:
Retaining the same basic shape [of CD-5], while merely tweaking a few aspects of the district, does not erase its history or undo the improper intent that the trial court found. The trial court's decision to defer to the Legislature's configuration is contrary to the proper standard that should have applied-shifting the burden to the Legislature to justify its enacted configuration- particularly where the trial court itself continued to acknowledge that the district is "not a model of compactness."
There was much discussion by the court about BVAP numbers and voting performance (basically, cold voter data and statistics), but there was no detail provided about the existence of Black communities within either orientation (i.e., nothing about the composition of naturally occurring communities in a geographically discrete region, and nothing about any shared history or shared experiences of the Black voters). This latter discussion does not appear to have ever come up. The court instead concluded this way based on the numbers: "Because the trial court erred in deferring to the Legislature's enacted North- South configuration, and because the Legislature cannot justify this configuration, District 5 must be redrawn in an East-West orientation." Id. at 406.
When the case returned to the trial court for consideration of the more robust remedy that the supreme court directed, the Legislature failed to enact a new...
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