Florida Judge Says DeSantis’ Gerrymandered Congressional Map Is Unconstitutional

Florida Gov. Ron DeSantis (R) at a press conference in Ocala, Florida, on May 6, 2022. (Paul Hennessy/SOPA Images/LightRocket via Getty Images)

A state judge in Florida on Wednesday said that a gerrymandered congressional map pushed by Florida Gov. Ron DeSantis (R) was unconstitutional because it diminished the the ability of thousands of Black voters to pick the representative of their choice.

Attorneys for the state are sure to appeal the decision, and DeSantis has spoken openly about how he feels Florida’s anti-gerrymandering constitutional amendments violate the U.S. Constitution.

But for now, the congressional map that the governor fought hard to pass into law — and which would add several Republican-leaning seats to Florida’s already-red congressional delegation — has been placed on hold.

“I am finding that the enacted map is unconstitutional under the Fair Districts Amendment, Article 3 Section 20, because it diminishes African Americans’ ability to elect the representative of their choice,” said Judge J. Layne Smith of the Second Circuit Court of Florida, later clarifying that he was only commenting on the issue before him, a motion for a temporary injunction.

Smith announced his decision from the bench after a hearing Wednesday, saying he hoped to publish a written decision Thursday so that the state could appeal.

“I fully expect the appellate court to get this and move as swiftly as it can,” Smith said. “I think everybody in the government, regardless of the branch, ought to all be on the same page that we need to get this right as soon as we can.”

In the interim, Smith said, he was leaning toward using an alternative map proposal known as “Plan A” as a remedy. The map was recommended by an expert witness for legal challengers against DeSantis’ map, Stephen Ansolabehere of Harvard University.

‘A Race-Based Problem In North Florida’

The fight over DeSantis’ map focuses on Northern Florida, and specifically Congressional District 5, the current plurality-Black congressional district which DeSantis’ map would eliminate. The governor has said the district — and the legislature’s earlier plans to preserve it — amounted to a “racial gerrymander.” 

Legal challengers argued that eliminating the Fifth District violated the fair redistricting amendments passed by Florida in 2010, which state that congressional districts cannot diminish the ability of minority voters “to elect representatives of their choice; and districts shall consist of contiguous territory.”

What’s more, the current Fifth District was drawn by the Florida Supreme Court in response to the last redistricting legal dispute in Florida. 

“Are you politely suggesting that I should say [the state Supreme Court] didn’t realize it was unconstitutional when they did it?” Smith asked a lawyer for the state.

The lawyer, Mohammad Omar Jazil, argued that the current district map was a remedial solution in a long-running legal fight, adding that “the law also has moved in the federal context,” in favor of “race-neutral” districts.

He cited the U.S. Supreme Court’s recent shadow docket decision ordering the Wisconsin Supreme Court to reconsider a map adding a new Black-majority district to the state legislature there, saying the court hadn’t properly weighed whether the district was justified. 

Separately, Jazil wondered aloud, “what evidence do we have of a race-based problem in North Florida? None.” 

Later, John Devaney, an attorney for the plaintiffs, said the law doesn’t discuss the need for a “race-based problem” to justify district lines, but rather the non-diminishment of minority voters’ ability to elect the representatives of their choice.

For his part, Smith noted Florida’s complex geography and the influence of the history of slavery and racism on demographic patterns in the state, specifically in the area of the Fifth District, which runs along Florida’s border with Georgia. 

“Where were the plantations, if you go back to slavery leading up to now, and the dispersion of African Americans in the communities?” he asked. “Jackson County, across down to Alachua County: They were near the state line of Georgia.” 

Nodding to the state’s argument, Smith said it’s possible a higher court could find that Florida’s fair redistricting amendments violate federal law.

But, he added, “I’m not going to be that court.” 

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