FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2023-2252
_____________________________
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.
_____________________________
On appeal from the Circuit Court for Leon County.
James Lee Marsh, Judge.
December 1, 2023
EN BANC
B.L. THOMAS and TANENBAUM, JJ.
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)
1 The law is now codified as chapter eight of the Florida
Statutes (2022).
2 Voters approved two “Fair Districts” Amendments in 2010.
Article III, section 21 of the Florida Constitution sets forth
similar standards for establishing state legislative districts.
2
(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”) (noting that
Gingles is relevant to analysis under both section two and section
five of the VRA and that “when we interpret our state provision
prohibiting the diminishment of racial or language minorities’
ability to elect representatives of choice, we are guided by any
jurisprudence interpreting Section 5” (quoting In re Senate Joint
Resol. of Legis. Apportionment 1176, 83 So. 3d 597, 619 (Fla.
2012) (“Apportionment I”))). We address these citations in the
discussion that follows. 3 In the end, we must reverse.
I
A
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
3 Based on this court’s interpretation of the FDA, we do not
address the appellants’ argument regarding the equal-protection
guarantee of the Fourteenth Amendment to the U.S.
Constitution.
4 https://shopthebusybee.com/
5 The supreme court recently recognized the distance and
difference between the two cities was significant enough to justify
realigning the appellate districts and separating Jacksonville
from the district that includes Tallahassee. See In re Redefinition
of App. Dists. & Certification of Need for Additional App. Judges,
345 So. 3d 703, 704 (Fla. 2021); District Court of Appeal
Workload and Jurisdiction Assessment Committee Final Report
and Recommendations, available at
3
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”) (affirming trial
court’s determination “that the Legislature’s 2012 congressional
redistricting plan was drawn in violation of the [FDA’s]
prohibition on partisan intent” but directing the trial court to
“require the Legislature to redraw, on an expedited basis,
Congressional Districts 5, 13, 14, 21, 22, 25, 26, 27, and all other
districts affected by the redrawing, pursuant to the guidelines set
forth in this opinion”).
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
https://www.flcourts.org/content/download/218249/file/dca_worklo
ad.pdf.
4
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.”
Id. at 403.
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
5
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 remedial plan. See
Apportionment VIII, 179 So. 3d at 261. The parties instead
proposed remedial plans to be adopted by court order; and while
they disagreed over some of the congressional districts, the
parties agreed to, among others, a “redrawn” CD-5 that ran east-
west. Id. at 262. The trial court recommended a congressional
redistricting plan that included the new CD-5, and the supreme
court approved it for use “in the 2016 Florida congressional
elections and in Florida congressional elections thereafter until
the next decennial redistricting.” Id. at 263 (emphasis supplied).
Based on the supreme court’s approval and instruction, the trial
court rendered a final judgment incorporating the court-drawn
plan as a remedy to be in effect until it expired with the
enactment of a new congressional districting law in 2022. Id.
Florida’s congressional elections in 2016, 2018, and 2020,
then, were conducted in districts that had not been enacted into
law. The CD-5 that the court ordered to be operative for those
elections (and then expire) “appeared” (in purple) as follows on
the adopted redistricting map:
6
B
The congressional reapportionment that occurred as a
product of the 2020 census gave Florida one additional seat,
increasing the State’s complement of apportioned U.S. House
members to 28. 6 The Legislature enacted a redistricting plan that
6 Congressional “reapportionment” occurs at the federal
level. Congress sets, by law, the number of members of the House
of Representatives. See Pub. L. 62-5, 37 Stat. 13 (Aug. 8, 1911)
(“Apportionment Act of 1911”); Pub. L. 71-13, § 22, 46 Stat. 21
(June 18, 1929) (“Reapportionment and Census Act of 1929”). The
President of the United States reapportions members among the
fifty states based on the most recent decennial census. See 2
U.S.C. § 2a(a) (directing the President to transmit to Congress a
statement of the population of each state determined under the
decennial census, along with “the number of Representatives to
which each State would be entitled under an apportionment of
the then existing number of Representatives by the method
known as the method of equal proportions, no State to receive
less than one Member”); see also 2 U.S.C. § 2a(b) (entitling each
state to “the number of Representatives shown in the statement
[from the President]” and requiring the clerk of the House of
Representatives “to send to the executive of each State a
certificate of the number of Representatives to which such State
is entitled under this section”). Federal law requires that each
state in turn “establish[] by law a number of districts equal to the
number of Representatives to which such State is so entitled, and
7
the Governor signed into law. See Ch. 2022-265, Laws of Fla.,
codified at Ch. 8, Fla. Stat. (2022). With that enactment, the
remedial order requiring the east-west CD-5 expired.
The new chapter eight delineates Florida’s apportioned
twenty-eight congressional districts by “employ[ing] areas
included within official county, tract, block groups, and block
boundary descriptions used by the [U.S. Census] in compiling
the” 2020 census numbers for the State. § 8.0001(1), Fla. Stat.
(2022). 7 Official electronic maps provide to the public visual
representations of these legally defined boundaries. See § 8.051,
Fla. Stat. (2022); see also § 8.0001(2)(e), Fla. Stat. (2022)
(defining “geographical information systems [GIS] map”). But
elections occur in Florida precinct by precinct, each county is
responsible for delineating its precincts. See §§ 98.0981(3);
101.045; 101.5604; 101.5606; 101.5610; 101.5614; 101.657(1)(a),
(4)(c); 101.69; 101.71; 102.012; 102.071; Fla. Stat.; cf. §§ 1S-2.015,
1S-2.032, Fla. Admin. Code. The delineations in chapter eight, in
turn, govern in which congressional district contest each precinct
will participate. See § 101.001(1), (3), (4), Fla. Stat. 8 The
resultant map of the North Florida congressional districts
addressed in this appeal is as follows:
Representatives shall be elected only from districts so
established.” 2 U.S.C. § 2c (emphasis supplied).
7 A “tract” is a “relatively permanent statistical subdivision
of a county.” § 8.0001(2)(f), Fla. Stat. (2022). A “block” is “the
smallest geographic unit for which population was tabulated in
the 2020 decennial census,” and it is “nested within tracts and
within block groups.” § 8.0001(2)(a), Fla. Stat. (2022).
8 The “blocks” are the component geographic parts that make
up each congressional district. See § 8.0001(2)(b), Fla. Stat. (2022)
(defining a “block equivalency file” as “a list of all blocks within
the state and the congressional district number designated for
each block”); cf. § 8.051, Fla. Stat. (2022).
8
The plaintiffs sued to challenge that new chapter eight. They
eventually narrowed their challenge to one theory: that the newly
enacted chapter eight diminishes the ability of Black voters in
the former CD-5 to elect the congressperson of their choice. Their
theory has as its premise that Black voters in North Florida have
the right to “elect the candidate of their choice” because they had
been “drawn” into former CD-5. From that premise, they conclude
that there is diminishment based almost entirely on what they
characterize as the “obliterat[ion]” of CD-5 under the new chapter
eight. Even though the first two named plaintiffs—Black Voters
Matter and Equal Ground Education Fund—describe themselves
in terms of the “historic” or “underserved” Black “communities”
they serve, their complaint nowhere purports to describe or
otherwise identify any naturally occurring community whose
members have been harmed. Instead, the complaint assumes—
without addressing any elements of cohesion or unifying
characteristics (besides statistical voting performance)—that the
Black voters pulled into CD-5 constitute a single operative
community by operation of law.
There was no trial on the plaintiffs’ claim. The parties
stipulated to several purported facts regarding voters in former
CD-5—essentially, just cold statistical information about Black
voters generally. This is all the trial court knew about the Black
voters in the former CD-5 (and all we can know): According to the
stipulation, former CD-5 had a BVAP of 46.2 percent, and 46.1
percent of former CD-5’s registered voters were Black. In 2016,
2018, and 2020, approximately 89 percent of Black voters in
former CD-5 voted for Democratic candidates in the general
9
elections. There were other purported facts that the parties did
not dispute regarding the “performance” of former CD-5 for Black
and non-Black voters.
The parties stipulated to a similar type of cold statistical
data regarding the newly enacted chapter eight: 45.2 percent of
the population that was contained in the former CD-5 is in the
new CD-4, with the remainder split across new CD-2, CD-3, and
CD-5; the BVAP in new CD-2, CD-3, CD-4, and CD-5 are 23.1
percent, 15.9 percent, 31.7 percent, and 12.8 percent,
respectively; and more than 75 percent of Black voters in these
four new districts voted for the Democratic candidate in 2022.
Similar to the dearth of information about Black voters in
Apportionment VII and Apportionment VIII—and commensurate
with the allegations that we noted were missing from the
complaint in this case—the plaintiffs did not submit any evidence
regarding the existence of naturally occurring (rather than court-
manufactured) Black communities within the former CD-5.
Nothing in the record describes who the Black voters are as
members of a meaningful community—nothing about a shared
history or shared socio-economic experience among the Black
voters in Tallahassee, Jacksonville, and other areas throughout
the expanse of former CD-5. No evidence in the record establishes
any relationship at all between any of the otherwise seemingly
disparate communities. What we are left with is a stipulation
that Black voters were grouped together to reach a preferred or
acceptable BVAP number within an east-west congressional
district, and that “Black voters had the ability to elect the
candidate of their choice in” former CD-5. According to the
parties, not one of new CD-2, CD-3, CD-4, or CD-5 is a district “in
which Black voters have the ability to elect their preferred
candidates.” The trial court accepted all these stipulated facts as
its findings—including the last one regarding the ability or
inability to elect a candidate of choice. Without making any
determination about the existence or nature of any naturally
occurring Black community in either the former CD-5 or the new
10
CD-2, CD-3, CD-4, or CD-5. 9 It concluded that the new chapter
eight violated the FDA by “dismantling” former CD-5.
The problem we have is this: Whether Black voters could
“elect the candidate of their choice” in former CD-5–or in the new
CD-2, CD-3, CD-4, or CD-5–is ultimately a legal question. It is
not a question that the parties can answer by stipulation. To
answer the question, we must determine what it means for a
delineated congressional district to have the result of
“diminish[ing]” the ability of a racial minority “to elect
representatives of their choice.” That is what we set out to do
now.
II
This is a direct appeal of a trial court’s final, declaratory
judgment determining that chapter eight of the Florida Statutes
(2022) violates the FDA. The constitution calls upon us to
determine whether the trial court erred in its legal determination
that the law’s boundaries for the congressional districts in North
Florida “diminish [the] ability [of a racial minority] to elect
representatives of their choice,” in conflict with the FDA’s
proscription against doing so. Art. III, § 1(a), Fla. Const. After all,
as a matter of textual interpretation, a trial court may not refuse
to enforce a duly enacted legislative statement of public policy
unless the statement conflicts with a superior law—typically a
constitution. Cf. Marbury v. Madison, 5 U.S. 137, 177–78 (1803)
(“If then the courts are to regard the constitution; and the
constitution is superior to any ordinary act of the legislature; the
constitution, and not such ordinary act, must govern the case to
which they both apply.”); Chapman v. Reddick, 25 So. 673, 677
(Fla. 1899) (“Our state constitution is a limitation upon power,
and, unless legislation duly passed be clearly contrary to some
9 The trial court rejected any argument that there must be
evidence of an insular and geographically compact community of
Black voters in a diminishment claim like the plaintiffs assert
here. It opted to look only at whether “there is no Black-
performing district where there previously was.” As we explain,
this core decision was based on an erroneous interpretation of the
FDA.
11
express or implied prohibition contained therein, the courts have
no authority to pronounce it invalid.”).
A conflict, though, must exist before the superior law will
prevail over the inferior law. To determine whether there is such
a conflict, we must assess the meaning of the relevant FDA text
and then decide how it operates vis-à-vis chapter eight. Cf.
Marbury, 5 U.S. at 177 (“It is emphatically the province and duty
of the judicial department to say what the law is. Those who
apply the rule to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each.”). Based on our
interpretation of the FDA, we find that the plaintiffs failed to
meet their burden to demonstrate a conflict between the two
laws.
A
The two laws that purportedly conflict—according to the
plaintiffs and the final judgment on review—are the
congressional districting plan set out in chapter eight, on the one
hand; and the latter part of subdivision (a) of the FDA—
specifically dealing with diminishment of racial minorities’
“ability to elect representatives of their choice”—on the other. We
described chapter eight earlier, so we turn to the applicable
constitutional provision.
Proposed by initiative petition filed in 2007, see Art. XI, § 3,
Fla. Const., and approved by Florida voters in 2010, the FDAs
prohibit the Legislature from defining congressional and
legislative district boundaries, respectively,
with the intent or result of denying or abridging the
equal opportunity of racial or language minorities to
participate in the political process or to diminish their
ability to elect representatives of their choice.
Art. III, §§ 20(a), 21(a), Fla. Const. (emphasis supplied). There
obviously could be no readily apparent facial conflict between this
provision and the delineation found in chapter eight (given the
technical nature of the statutory provisions therein, described
above). Instead, a claim that a districting statute conflicts with
12
the FDA requires evidentiary proof that the challenged statute is
a product of a prohibited intent, or in operation produces a
prohibited result. As we noted above, the legal question we must
answer is what type of proof is required to establish this violation
and sustain such an as-applied constitutional challenge. The
answer is in the meaning behind the highlighted text.
We are mindful that we are construing a provision of the
Florida Constitution here. As the supreme court observed nearly
a century ago,
[g]eneral principles governing the construction of
statutes are applicable to the construction of
Constitutions with some modifications. . . . Technical
rules of construction [] are not to be applied so as to
defeat the principles of government or the object of its
establishment. The fundamental purpose in construing a
constitutional provision is to ascertain and give effect to
the intent of the framers and the people who adopted it.
The object sought to be accomplished, therefore, must be
kept constantly in view.
City of Jacksonville v. Cont’l Can Co., 151 So. 488, 489 (Fla.
1933). Our aim is “to give effect to the purpose indicated by a fair
interpretation of the language, the natural signification of the
words used in the order, and grammatical arrangement in which
they have been placed.” Id. “If the words thus regarded convey a
definite meaning and involve no absurdity or contradiction
between the parts of the same instrument, no construction is
allowable.” Id. At the same time, “[t]he rules used in construing
statutes are in general applicable in construing the provisions of
a Constitution.” State ex rel. McKay v. Keller, 191 So. 542, 545
(Fla. 1939); see also Coastal Fla. Police Benevolent Ass’n v.
Williams, 838 So. 2d 543, 548 (Fla. 2003) (same).
Getting back to the highlighted phrases, we note that each
finds a nearly identical companion text in the VRA, which we will
describe in turn. First enacted in 1965, the VRA primarily
prohibited any state from using any “voting qualification or
prerequisite” or any “standard, practice, or procedure . . . to deny
or abridge the right of any citizen of the United States to vote on
account of race or color.” Pub. Law 89-110, § 2 (Aug. 6, 1965)
13
(emphasis supplied). It also subjected certain states and
subdivisions to a pre-clearance process by which any voting law
that differs from that “in force or effect on November 1, 1964”
would be reviewed by the District of Columbia federal trial court
to determine whether the change had the purpose or effect “of
denying or abridging the right to vote on account of race or color.”
Id. § 5 (emphasis supplied). According to the U.S. Supreme Court,
the VRA
was designed by Congress to banish the blight of racial
discrimination in voting, which has infected the electoral
process in parts of our country for nearly a century. The
Act creates stringent new remedies for voting
discrimination where it persists on a pervasive scale,
and in addition the statute strengthens existing
remedies for pockets of voting discrimination elsewhere
in the country.
South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).
Congress amended section two of the VRA in 1982 to add the
following definition of a violation of section two (essentially, the
denial or abridgment of the right to vote based on race or color):
A violation of subsection (a) is established if, based on
the totality of circumstances, it is shown that the
political processes leading to nomination or election in
the State or political subdivision are not equally open to
participation by members of a class of citizens protected
by subsection (a) in that its members have less
opportunity than other members of the electorate to
participate in the political process and to elect
representatives of their choice.
Pub. Law 97-205, § 3 (June 29, 1982) (emphasis supplied). Then,
just a year before the filing of the FDA initiative petition to
amend the Florida Constitution, Congress amended section five
of the VRA to define “denies or abridges” in similar language
(with slight variations), as follows:
Any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting
14
that has the purpose of or will have the effect of
diminishing the ability of any citizens of the United
States on account of race or color . . . to elect their
preferred candidates of choice denies or abridges the
right to vote within the meaning of subsection (a) of this
section . . . .
Pub. Law 109-246, § 5 (July 27, 2006) (“Criteria for Declaratory
Judgment”), codified at 52 U.S.C. § 10204(b) (emphasis supplied).
At this point, we will address the Florida Supreme Court’s
treatment in Apportionment I of article III, section 21(a) (which
addresses state legislative apportionment) in a facial assessment
of a districting plan as part of its function under article III,
section 16. We will then turn to how the U.S. Supreme Court has
interpreted the nearly identical text found in sections two and
five of the VRA.
B
1
State legislative apportionment—the determination of state
senatorial and representative districts—is a unique process
under the Florida Constitution. See Art. III, § 16, Fla. Const. The
apportionment required of the Legislature occurs by joint
resolution and has the force of law. See id. §16(a). It is the only
legislative enactment that becomes law without presentment to
the Governor for approval. Cf. Art. III, § 8, Fla. Const. The
presentment requirement for all other enactments makes the
Governor an adjunct of the legislative process—a check within
the context of the Legislature’s exercise of the plenary authority
vested in it by article III. Within the legislative process for the
purpose of state legislative apportionment, however, the
constitution instead designates the Supreme Court of Florida as
the check on the Legislature. See Art. III, § 16(c), Fla. Const. 10
10 The process set out article III, section 16, applies only to
state legislative “apportionment”—so called because the
Legislature, when it delineates the districts by joint resolution,
effectively determines both the number of senators and
15
In that capacity, under section 16, the supreme court
exercises original jurisdiction to issue “a declaratory judgment
determining the validity of the apportionment” upon petition by
the attorney general. Id. 11 To be clear, in this context, there is no
lower court judgment under review, so the court’s declaratory
judgment under article III, section 16, cannot be the exercise of
appellate jurisdiction. Cf. Marbury, 5 U.S. at 175–76 (“It is the
essential criterion of appellate jurisdiction, that it revises and
corrects the proceedings in a cause already instituted, and does
not create that cause. . . . [T]o issue such a writ to an officer for
the delivery of a paper, is in effect the same as to sustain an
original action for that paper, and therefore seems not to belong
to appellate, but to original jurisdiction.”); The Alicia, 74 U.S.
571, 573 (1868) (“An appellate jurisdiction necessarily implies
some judicial determination, some judgment, decree, or order of
an inferior tribunal, from which an appeal has been taken.”);
Webster v. Cooper, 51 U.S. 54, 55 (1850) (explaining that “an
appellate court [revises] the decisions of inferior tribunals”); Ex
parte Crane, 30 U.S. 190, 193 (1831) (distinguishing between a
writ to an executive officer, which would “be the exercise of
representatives and how they are to be allocated geographically
throughout the State. The process does not apply to congressional
districts. As described above, the President reapportions the
statutorily set 435 congressional seats based on the latest census
numbers and congressionally set formula, which then entitles
each state to the number of congressional seats the President
reports. The Legislature, in turn, redistricts by enactment—
under the typical process set out in article III, sections six
through eight—based on the number of members apportioned to
the State under the federally prescribed process. The law
delineating these congressional districts is not subject to the
supreme court’s “plenary authority” like the apportionment joint
resolution is. See Apportionment I, 83 So. 3d at 600.
11 Section sixteen also gives the supreme court the authority
to order apportionment on its own under two different scenarios
where the Legislature fails to act. See Art. III, § 16(b), (f), Fla.
Const.
16
original jurisdiction,” and one “to an inferior court of the United
States,” which would be the exercise of “appellate jurisdiction”);
Ex parte Bollman, 8 U.S. 75, 100–01 (1807) (distinguishing
appellate jurisdiction as “the revision of a decision of an inferior
court”); Ortiz v. United States, 138 S. Ct. 2165, 2191 (2018) (Alito,
J., dissenting) (“And as Blackstone suggested, what ‘creates’ a
‘case’ in the relevant sense—that is, what transforms a dispute
into a ‘case’ that an appellate court has jurisdiction to resolve—is
the prior submission of the dispute to a tribunal that is lawfully
vested with judicial power.” (emphasis supplied)); Ortiz v. United
States, 138 S. Ct. 2165, 2184–85 (2018) (Thomas, J., concurring)
(“Thus, this Court cannot exercise appellate jurisdiction unless it
is reviewing an already completed exercise of ‘judicial power.’”
(citing In re Sanborn, 148 U.S. 222, 224 (1893))).
Because the supreme court does not act as an appellate court
in a review under article III, section 16, it also does not function
judicially in a supervisory capacity as head of the branch. Cf.
Cohens v. Virginia, 19 U.S. 264, 396 (1821) (“A supervising Court,
whose peculiar province it is to correct the errors of an inferior
Court, has no power to correct a judgment given without
jurisdiction, because, in the same case, that supervising Court
has original jurisdiction.”); Ansin v. Thurston, 101 So. 2d 808, 810
(Fla. 1958) (“The new article embodies throughout its terms the
idea of a Supreme Court which functions as a supervisory body in
the judicial system for the State, exercising appellate power in
certain specified areas essential to the settlement of issues of
public importance and the preservation of uniformity of principle
and practice, with review by the district courts in most instances
being final and absolute.”); Jenkins v. State, 385 So. 2d 1356,
1357–58 (Fla. 1980) (same); The Fla. Star v. B.J.F., 530 So. 2d
286, 288–89 (Fla. 1988) (noting that the court “has subject-matter
jurisdiction to hear any petition arising from an opinion that
establishes a point of law” (emphasis supplied)).
The court in its decision in Apportionment I (and in its
follow-up decision in what has become known as Apportionment
17
II 12) did not review a lower court’s interpretation or application of
the law. The court’s analysis in those two decisions was akin to
what a trial court does when it seeks to apply the law to a certain
set of facts. The court’s pronouncements in that capacity, then,
should not operate as holdings of a superior appellate court. For
this reason, we do not view the broad pronouncements—applied
with varying degrees of clarity to the specific facts of the original
proceeding—as binding in this direct appeal. Cf. Parsons v. Fed.
Realty Corp., 143 So. 912, 920 (Fla. 1931) (“A ruling in a case
fully considered and decided by an appellate court is not dictum
merely because it was not necessary, on account of one conclusion
reached upon one question, to consider another question the
decision of which would have controlled the judgment.” (emphasis
supplied)); Myers v. Atl. Coast Line R.R. Co., 112 So. 2d 263, 266
n.4 (Fla. 1959) (“The general rule is that when an appellate court
passes upon a question and remands the case for further
proceedings, the questions there settled become the ‘law of the
case’ upon subsequent appeal, provided the same facts and issues
which were determined in the previous appeal are involved in the
second appeal.” (emphasis supplied)); Pardo v. State, 596 So. 2d
665, 666–67 (Fla. 1992) (explaining how, “in the absence of
interdistrict conflict, district court decisions bind all Florida trial
courts” and describing “the proper hierarchy of decisional
holdings” as between district courts and the supreme court, and
trial courts and the district courts).
Still, the pronouncements are from our supreme court, so we
cannot dismiss them out of hand. We have taken the textual
analyses into account here. Even if the pronouncements could be
considered “holdings,” however, their applicability cannot get us
very far here because the procedural posture of both
Apportionment I and Apportionment II (viz.: original jurisdiction,
limited facial review of a legislative enactment) differs markedly
from the posture of this direct appeal (viz.: appellate review of
trial court judgment on as-applied challenge to legislative
enactment).
12 In re Senate Joint Resol. of Legis. Apportionment 2-B, 89
So. 3d 872 (Fla. 2012).
18
The supreme court itself later made this distinction: “[T]he
declaratory judgment rendered by this Court pursuant to article
III, section 16, is binding as to the facial validity of the
apportionment plan, but not to subsequent fact-based challenges.”
Fla. House of Representatives v. League of Women Voters of Fla.,
118 So. 3d 198, 209 (Fla. 2013) (“Apportionment III”) (emphasis
supplied); see also id. (“[P]ursuant to article III, section 16, this
Court is charged with the responsibility to render a declaratory
judgment as to the facial validity of a plan in order to provide
certainty as to its facial validity prior to the upcoming election.”);
id. at 210 (noting that a declaratory judgment rendered under
article III, section 16 is “a determination of only the facial
validity of the [redistricting] plan” and “did not preclude
subsequent, fact-based challenges” to the same plan); cf. In re
Apportionment Senate Joint Resol. No. 1305, 1972 Regular
Session, 263 So. 2d 797, 808 (Fla. 1972) (“In other words, the
apportionment plan as framed may be constitutional on its face,
but upon its application in a particular case the joint resolution
may violate organic law. This is in accord with our holdings that
a statute may be valid as applied to one state of facts, though
invalid as applied to another state of facts.”).
The supreme court in essence viewed Apportionment I and
Apportionment II as decisions of limited application, with no real
purchase in a direct appeal from a trial court judgment on an as-
applied FDA challenge to congressional districts. See
Apportionment VII, 172 So. 3d at 369–70 (characterizing the
“appeal” before it as one where the trial court was presented
“with a first-of-its-kind challenge under the [FDA],” “involving
legal issues of first impression”); Apportionment VIII, 179 So. 3d
at 262 (“[W]e are acutely aware that this case represents the first
time that congressional districts have been challenged under the
Fair Districts Amendment. As we have stated before, the trial
court had scant precedent to guide it; neither [sic] did the
Legislature nor the Challengers.” (internal quotation and citation
omitted)). Even in Apportionment I, the supreme court hinted at
the limited nature of what it was doing, viewing its “legislative
apportionment jurisprudence” as unique, separate and apart
from ordinary jurisprudence involving constitutional challenges
to statutes. Cf. Apportionment I, 83 So. 3d at 606–07 & n.5
(distinguishing between the unique standard of review in
19
“legislative apportionment jurisprudence” under article III,
section 16, and “[c]hallenges to the constitutionality of ordinary
legislative acts passed by the Legislature, [which] must be
brought in a trial court and then reviewed by a district court of
appeal”).
We will view the decisions the same way, and take the
pronouncements about the meaning and application of the FDA
as guidance, to the extent the general principles stated therein
reasonably comport with the text and make sense in application
to the circumstances of this case. At all events, as was the case in
Apportionment III, Apportionment VII, and Apportionment VIII,
this appeal involves a first-of-its-kind, as-applied FDA challenge
to a congressional redistricting law. In those former cases, the
challenge was based on allegations of partisan intent. The
challenge here is based on the effect the new districting
enactment has—as a factual matter—on the voting power of the
Black population in North Florida. None of those former cases,
then, provide holdings that control here.
Moreover, because the supreme court in Apportionment I and
Apportionment II was exercising special original jurisdiction
given to it under the apportionment process set out in article
III—and in an expedited and limited fashion at that—it is
difficult to distinguish an appellate holding on a principle of law
from a determination of fact as an adjunct to the article-III
process. See Apportionment III, 118 So. 3d at 207 (explaining that
the court’s decisions in Apportionment I and Apportionment II
“were based solely on objective evidence and undisputed facts in
the limited record before” it); id. at 212 (“Although the
Legislature contends that our review pursuant to article III,
section 16, in effect, involved fact-finding, we repeatedly
emphasized that our determinations in 2012 were based on the
limited record before the Court and were constrained by the
equally limited nature of the review this Court was able to
conduct in the thirty-day facial proceeding mandated by article
III, section 16.”). Before we move on, we look at what the
supreme court in fact said about the provisions of the FDA we
deal with here.
20
2
The plaintiffs zero in on a gloss the supreme court
purportedly gave to the diminishment text of the FDA when it
noted, “the Legislature cannot eliminate majority-minority
districts or weaken other historically performing minority
districts where doing so would actually diminish a minority
group’s ability to elect its preferred candidates.” Id. (emphasis
supplied). The plaintiffs, quite frankly, read too much into this
statement. As the highlighted text presages, the statement as a
whole adds very little beyond what we already have discussed.
The statement basically begs the question, because it merely
assumes what has yet to be defined: the “benchmark” from which
to measure diminishment, which requires us to explicate what it
means for a racial minority group to have the ability “to elect the
representative of [its] choice.”
And the supreme court did not spend much time in
Apportionment I on this question. It seemingly assumed, without
analysis, that the benchmark in this respect is any Black
performing district, without regard to whether the district
“performs” merely because it has been manufactured that way
(by defining the district with an eye toward lumping in Black
voters based solely on how they vote compared to how non-Black
voters do so). We assume the supreme court was looking to the
U.S. Department of Justice’s administration of the section-five
preclearance regime through guidelines and regulations that
define “benchmark” in terms of the “last legally enforceable plan.”
Guidance Concerning Redistricting Under Section 5 of the Voting
Rights Act, 76 Fed. Reg. 7470 (Feb. 9, 2011). Cf. Riley v. Kennedy,
553 U.S. 406, 412 (2008); Beer v. U. S., 425 U.S. 130, 141 (1976).
This simply makes no sense in the FDA context. As the Riley
Court described that regime, its design presumes prior
discrimination in voting practices, thereby “putting the burden on
covered jurisdictions to demonstrate that future changes would
not be discriminatory.” Riley, 553 U.S. at 413; see also id. (“§ 5
served to shift the advantage of time and inertia from the
perpetrators of the evil to its victims.” (internal quotation and
citation omitted)). From there, the Riley court “defined the
21
baseline as the most recent practice that was both precleared and
‘in force or effect.’” Id. at 421 (emphasis supplied). That whole
regime does not exist (and could not exist) under the FDA. The
FDA clearly does not bring in the entirety of section five of the
VRA, so there is no textual basis for using this approach
(designed with preclearance in mind) to defining a benchmark in
application of the diminishment provision in the FDA. To the
extent that the supreme court purported to state otherwise in
Apportionment I—and require that the benchmark for measuring
diminishment is any Black performing district previously in
place—either that treatment of the FDA text was unnecessary for
the task at hand for the court in Apportionment I, or it was
limited to the unique nature of the facial review the supreme
court was conducting.
We are left still having to address the meaning of a minority
group’s “ability to elect representatives of their choice” in this
case of first impression, where an as-applied diminishment
challenge has been lodged against a congressional redistricting
enactment. That comes next.
III
The FDA speaks to the effect a redistricting enactment has
on a racial minority’s “ability to elect representatives of their
choice.” We know what this term cannot mean. No individual
minority (or majority) voter has a right to have his or her
candidate win. Otherwise, every such voter who voted for the
losing candidate would have a claim under the VRA and FDA. Cf.
Whitcomb v. Chavis, 403 U.S. 124, 153 (1971) (noting that the
“typical American legislative elections are district-oriented, head-
on races between candidates of two or more parties,” such that
“[a]s our system has it, one candidate wins, the others lose,” and
“[a]rguably the losing candidates’ supporters are without
representation since the men they voted for have been defeated,”
yet it is not a “denial of equal protection to deny legislative seats
to losing candidates”).
This concept of a minority group having an opportunity “to
elect representatives of their choice”—as a component of
protecting an individual’s right to vote against abridgment
22
because of race—did not appear in the VRA until 1982. As we
noted above, it was supplied to section two to further define what
denial or abridgment of that right could be. The U.S. Supreme
Court interpreted this newly amended section two shortly
thereafter. It is there we can turn to help answer the question of
what the term means as it appears in the FDA. See Gingles, 478
U.S. at 30. 13
Even though Gingles ultimately set out to define the
contours of a section-two claim under the VRA, the Court began
13 Prior to the 1982 amendment to the VRA, the U.S.
Supreme Court had held in Mobile v. Bolden, 446 U.S. 55, 61–74
(1980), that section two was merely a restatement of the
protections afforded in the Fifteenth Amendment to the U.S.
Constitution, and therefore, a plaintiff had to prove that the
challenged voting standard was enacted or maintained, at least
in part, by a discriminatory purpose. In 1982, section two of the
VRA was amended to focus on the function of the challenged
voting standard, as shown by the totality of the circumstances,
rather than whether there was discriminatory intent.
The U.S. Senate Committee on the Judiciary issued a report
accompanying the 1982 amendment, suggesting factors for courts
to use in determining whether operation of a challenged voting
standard resulted in a violation of section two. These included
history of voting-related discrimination; extent of racially
polarized voting; extent of use in the voting subdivision of
practices that tend to enhance the opportunity for discrimination
against the minority group; exclusion of members of the minority
group from the candidate selection process; extent to which the
minority group bears effects of discrimination in education,
employment, and health that may affect their ability to
participate in the political process; use of overt or subtle racial
appeals in political campaigns; and the extent to which members
of the minority group have been elected to public office in the
jurisdiction. S. Rep. No. 97–417, 97th Cong. 2nd Sess. 28 (1982),
U.S. Code Cong. & Admin. News 1982, pp. 206–207. The U.S.
Supreme Court considered this report in establishing the Gingles
preconditions. Gingles, 478 U.S. at 36–38, 43–46.
23
with threshold conditions that must be met before there could be
said to be an impediment to “the ability of minority voters to elect
representatives of their choice.” Id. at 48 (setting out the so-called
Gingles preconditions). The first of those circumstances is the
existence of “a politically cohesive, geographically insular
minority group.” Id. at 49. The Court explained this precondition
further, as follows:
The reason that a minority group making such a
challenge must show, as a threshold matter, that it is
sufficiently large and geographically compact to
constitute a majority in a single-member district is this:
Unless minority voters possess the potential to elect
representatives in the absence of the challenged
structure or practice, they cannot claim to have been
injured by that structure or practice. The single-member
district is generally the appropriate standard against
which to measure minority group potential to elect
because it is the smallest political unit from which
representatives are elected. Thus, if the minority group
is spread evenly throughout a multimember district, or
if, although geographically compact, the minority group
is so small in relation to the surrounding white
population that it could not constitute a majority in a
single-member district, these minority voters cannot
maintain that they would have been able to elect
representatives of their choice in the absence of the
multimember electoral structure.
Id. at 50 n.17 (second emphasis supplied); see also id. at 49–50
(pointing out “that the greater the degree to which the electoral
minority is homogeneous and insular and the greater the degree
that bloc voting occurs along majority-minority lines, the greater
will be the extent to which the minority’s voting power is diluted
by multimember districting” (quoting Mobile v. Bolden, 446 U.S.
55, 105 n.3 (1980) (Marshall, J., dissenting)); id. at 51 n.15 (“It is
obvious that unless minority group members experience
substantial difficulty electing representatives of their choice, they
cannot prove that a challenged electoral mechanism impairs their
ability ‘to elect.’ § 2(b).”); see also Growe v. Emison, 507 U.S. 25,
40–41 (1993) (noting that “the reasons for the three Gingles
24
prerequisites continue to apply”—including the “‘geographically
compact majority’ and ‘minority political cohesion’ showings,”
which help “establish that the minority has the potential to elect
a representative of its own choice in some single-member
district,” failing which “there neither has been a wrong nor can be
a remedy” (emphasis supplied)).
Indeed, in the context of section two’s dilution analysis, the
U.S. Supreme Court has consistently required geographic
compactness in defining the minority group whose voting power
is to be protected. See League of United Latin Am. Citizens v.
Perry, 548 U.S. 399, 432 (2006) (“LULAC”) (explaining that the
trial court erred by basing its assessment of a district’s
performance on “aggregating the voting strength of [] two groups
of Latinos,” which otherwise “would allow a Latino-preferred
candidate to prevail in elections,” because that “general finding of
effectiveness cannot substitute for the lack of a finding on
compactness”). Limiting the VRA’s protection—and the FDA’s as
well—to a geographically compact minority group makes sense.
Doing so recognizes “that members of geographically insular
racial and ethnic groups frequently share socioeconomic
characteristics, such as income level, employment status, amount
of education, housing and other living conditions, religion,
language, and so forth.” Gingles, 478 U.S. at 64.
The Supreme Court, in turn, has applied the phrase “elect
representatives of their choice”—as it appears in section two of
the VRA—with a focus on the naturally occurring minority
community within a geographically compact area. Cf. Shaw v.
Hunt, 517 U.S. 899, 917 (1996) (hereinafter Shaw II) (“If a § 2
violation is proved for a particular area, it flows from the fact
that individuals in this area ‘have less opportunity than other
members of the electorate to participate in the political process
and to elect representatives of their choice.’ The vote-dilution
injuries suffered by these persons are not remedied by creating a
safe majority-black district somewhere else in the State.”
(internal citations omitted)); id. (“For example, if a geographically
compact, cohesive minority population lives in [one geographic
region], . . . [a district] that spans [another region] would not
address that § 2 violation,” because the “black voters of the [prior
25
geographic region] would still be suffering precisely the same
injury that they suffered before [the new district] was drawn.”).
Moreover, the Supreme Court rejects the use of a non-
geographically based definition of the protected minority group.
See LULAC, 548 U.S. at 432 (rejecting the trial court’s approach,
under which “a district would satisfy § 2 no matter how
noncompact it was, so long as all the members of a racial group,
added together, could control election outcomes”); id. at 433 (“The
first Gingles condition refers to the compactness of the minority
population, not to the compactness of the contested district.”
(quoting Bush v. Vera, 517 U.S. 952, 997 (1996) (Kennedy, J.,
concurring))).
Along these same lines, in Miller v. Johnson, the Supreme
Court explained that the State’s recognition of a racial minority
in districting legislation may or may not be constitutional,
depending on the circumstances:
A State is free to recognize communities that have a
particular racial makeup, provided its action is directed
toward some common thread of relevant interests. When
members of a racial group live together in one
community, a reapportionment plan that concentrates
members of the group in one district and excludes them
from others may reflect wholly legitimate purposes. But
where the State assumes from a group of voters’ race
that they think alike, share the same political interests,
and will prefer the same candidates at the polls,” it
engages in racial stereotyping at odds with equal
protection mandates.
515 U.S. 900, 920 (1995) (internal citations and quotations
omitted). As the Supreme Court later observed: “In the absence of
this prohibited assumption [that all voters of a certain race think
and act alike, regardless of their location], there is no basis to
believe a district that combines two farflung segments of a racial
group with disparate interests provides the opportunity that § 2
requires or that the first Gingles condition contemplates.”
LULAC, 548 U.S. at 433–34 (emphasis supplied); cf. Johnson v.
De Grandy, 512 U.S. 997, 1022 (1994) (finding fault in the fact
that “the complaint alleges no facts at all about the contours,
26
demographics, or voting patterns of any districts outside the Dade
County or Escambia County areas” (emphasis supplied)); id. at
1015 (“We would agree that where a State has split (or lumped)
minority neighborhoods that would have been grouped into a
single district (or spread among several) if the State had
employed the same line-drawing standards in minority
neighborhoods as it used elsewhere in the jurisdiction, the
inconsistent treatment might be significant evidence of a § 2
violation, even in the face of proportionality.”)
Simply put, to obtain relief under section two, “a plaintiff
must show, at a minimum, that the minority group is
‘geographically compact.’” Shaw II, 517 U.S. at 916 (1996).
(“Therefore where that district sits, there neither has been a
wrong nor can be a remedy.” (quoting Growe, 507 U.S. at 41));
Abrams v. Johnson, 521 U.S. 74, 91–92 (1997) (“As we have noted
before, § 2 does not require a State to create, on predominantly
racial lines, a district that is not ‘reasonably compact.’ And the
§ 2 compactness inquiry should take into account ‘traditional
districting principles such as maintaining communities of
interest and traditional boundaries.’” (internal quotations and
citations omitted)); cf. Cooper v. Harris, 581 U.S. 285, 305 (2017)
(“When a minority group is not sufficiently large to make up a
majority in a reasonably shaped district, § 2 simply does not
apply.”); LULAC, 548 U.S. at 431–32 (noting principle “that a
plaintiff, to make out a § 2 violation, must show he or she is part
of a racial group that could form a majority in a reasonably
compact district”).
We acknowledge that this quoted jurisprudence (from
Gingles forward) developed in the context of section two and
dilution claims, but we disagree with the plaintiffs in their
contention that the Gingles precondition one, and the cases that
subsequently apply it, cannot be applicable in a diminishment
claim like the one they assert. Congress limited redistricting
remedies to prevent any demand for “proportional” representation,
which would likely violate non-minorities’ rights under the Equal
Protection Clause of the Fourteenth Amendment to the U.S.
Constitution. Allen v. Milligan, 599 U.S. 1, 19 (2023) (“Gingles
has governed our Voting Rights Act jurisprudence since it was
decided 37 years ago. Congress has never disturbed our
27
understanding of Section 2 as Gingles construed it.”). At its heart,
the plaintiffs’ claim is based on a false premise—prohibited by
section two, in fact—that minority voters living hundreds of miles
apart in totally different communities, not joined in any
reasonably configured geographically area, are entitled to
proportional representation merely because they were once
included together in former CD-5 by court order for three election
cycles. This is not what the technical term we have been
discussing contemplates.
That term is “elect representatives of their choice.” Section
five did not include the phrase until 2006. It was against the
legal landscape we just reviewed that the term, in almost
identical form, was added to the section—indeed, for a similar
purpose: to define the “denies or abridges the right to vote.” Cf.
N.L.R.B. v. Amax Coal Co., a Div. of Amax, Inc., 453 U.S. 322,
329 (1981) (“Where Congress uses terms that have accumulated
settled meaning under either equity or the common law, a court
must infer, unless the statute otherwise dictates, that Congress
means to incorporate the established meaning of these terms.”);
see also Tomlinson, 369 So. 3d at 1147 n.6 (observing that
“technical legal words . . . are deemed to have been statutorily
used as they [have been] legally defined,” based on their
“established legal meaning”).
Even though section five has a different purpose and
function compared to section two, the use of a reference to the
opportunity or ability of minority voters to elect candidates of
their choice is the same in both. Both sections guard against the
denial or abridgment of the individual right to vote on account of
race. Violations can take a variety of forms under both sections.
When it comes to a practice like redistricting, though, Congress’s
use of the same text in both sections points to an intent that the
benchmark for both dilution and diminishment is the same: the
geographically compact Black community with shared interests
and collective voting power.
We see no reason why the same principle should not also
apply in the context of diminishment under our state
constitution, especially given our supreme court’s decisions in
this area of the law. The protection afforded, then, by both the
28
VRA and the FDA, through their references to the ability “to elect
the candidate of their choice,” is of the voting power of “a
politically cohesive, geographically insular minority group.” The
baseline or benchmark from which to measure diminishment
starts with a naturally occurring, geographically compact
community with inherent voting power—not a district drawn
with the purpose of cramming in enough voters to meet a BVAP
target. Without common interests and a shared history and
socioeconomic experience, it is not a community that can give rise
to a cognizable right protected by the FDA. In other words, it is
the community that must have the power, not a district
manufactured for the sole purpose of creating voting power.
We hasten to say, though, that the community-as-benchmark
interpretation applies only to the term “elect representatives of
their choice.” The Supreme Court applied that term in Gingles in
the context of section two’s mention of “less opportunity than
other members of the electorate.” From there, it derived the
concept of “dilution,” which the Court held required the existence
of a potential majority-minority district. The term’s use in the
context of section five’s mention of “diminishing the ability” does
not change the benchmark—the identifiable Black community—
only the starting point for measuring the strength of that
community’s voting power.
This view dovetails with the Florida Supreme Court’s
reading of the FDA to mean that the benchmark from which to
measure claimed “retrogression” can be a majority-minority
district, coalition district, or crossover district. Apportionment I,
83 So. 3d at 625. 14 As the supreme court noted, there is no right
14 In a majority-minority district, “a minority group composes
a numerical, working majority of the voting-age population.”
Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (plurality opinion).
An “influence district” is one “in which a minority group can
influence the outcome of an election even if its preferred
candidate cannot be elected.” Id. A “crossover district” is “[l]ike
an influence district” in that “minority voters make up less than
a majority of the voting-age population,” but “the minority
population, at least potentially, is [still] large enough to elect the
candidate of its choice with help from voters who are members of
29
under section two of the VRA against dilution if there is not a
potential majority-minority district. Id. at 623 (“The showing of
either an additional minority influence district or a crossover
district, as opposed to an actual majority-minority district, is
insufficient for Section 2 purposes; what is required is that ‘the
minority population in the potential election district [be] greater
than 50 percent.’” (quoting Bartlett v. Strickland, 556 U.S. 1, 19–
20 (2009) (plurality opinion))); see also Cooper, 581 U.S. at 305
(characterizing the statement in Bartlett to mean that “[w]hen a
minority group is not sufficiently large to make up a majority in a
reasonably shaped district, § 2 simply does not apply”).
At the same time, the supreme court recognized that even in
the absence of a potential majority-minority district, there still
could be a diminishment claim under the latter part of the FDA if
a new districting regime reduces the minority group’s
performance with respect to the candidate of its choice,
presumably either through influence or with cross-over help. See
Apportionment I, 83 So. 3d at 625; cf. Voinovich v. Quilter, 507
U.S. 146, 158 (1993) (noting that “the Gingles factors cannot be
applied mechanically and without regard to the nature of the
claim” and explaining that under the “first Gingles precondition,
the requirement that the group be sufficiently large to constitute
a majority in a single district, would have to be modified or
eliminated when analyzing the influence-dilution claim we
assume, arguendo, to be actionable today”). In the example just
quoted from Voinovich, “[t]he complaint in such a case is not that
black voters have been deprived of the ability to constitute a
majority, but of the possibility of being a sufficiently large
minority to elect their candidate of choice with the assistance of
cross-over votes from the white majority.” Id.
All we add to this—in the context of having to actually
interpret the text in a case that demands the interpretation for a
disposition—is the principle that a challenger cannot simply
point to the existence of a Black performing district, without
more, and have that serve as a benchmark for a diminishment
the majority and who cross over to support the minority’s
preferred candidate.” Id.
30
claim. In asserting their rights under the FDA, the plaintiffs
must establish they are part of a “geographically compact”
community (rather than several “farflung” ones artificially
brought together). From there, they must demonstrate that the
naturally occurring community of which they are a part achieved
some cohesive voting power under a legally enforceable district.
That will be their benchmark. To prove their diminishment claim
under the FDA, they will have to bring forward evidence that
shows that the community’s voting power decreased under the
new districting enactment.
The plaintiffs failed to present any evidence of the existence
within former CD-5 of such a geographically compact community,
as we described; and the trial court did not demand it. In fact, it
erroneously allowed the parties to stipulate this threshold
element out of existence. They instead simply relied on the mere
existence of former CD-5 as a Black performing district as a basis
for using it as a benchmark. The district, of course, clearly pulled
from “two farflung segments of a racial group with disparate
interests.” LULAC, 548 U.S. at 434. As a legal matter, this was
not enough. There was no evidentiary basis for the conclusion
that CD-5 afforded a legally cognizable Black community (as the
parameters for such have been set out here) voting power that it
did not otherwise have. The plaintiffs then failed to prove a
proper benchmark or baseline from which to assess an alleged
diminishment in voting power. They failed to submit any
evidence as to this essential element of their claim under the
FDA. The trial court should have dismissed the plaintiffs’ suit for
lack of proof.
REVERSED.
ROBERTS, ROWE, WINOKUR, M.K. THOMAS, and LONG, JJ., concur.
OSTERHAUS, C.J., concurs in result only with an opinion in which
ROBERTS, M.K. THOMAS, and LONG, JJ., join.
WINOKUR, J., concurs with an opinion in which B.L. THOMAS and
TANENBAUM, JJ., join.
31
LONG, J., concurs with an opinion in which B.L. THOMAS,
ROBERTS, and M.K. THOMAS, JJ., join.
BILBREY, J., dissents with an opinion in which KELSEY, J., joins.
LEWIS, RAY, and NORDBY, JJ., recused.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
OSTERHAUS, C.J., concurring.
I concur with the result reached by our court but for federal
equal protection-related reasons. I agree as a threshold matter
with my colleagues’ conclusion that Appellees’ standing
arguments lack merit. The State parties were legally obliged to
follow both state and federal law in their redistricting work,
including federal equal protection law. And just as the
Legislature and Governor cannot ignore the United States
Constitution in this work, courts reviewing their work cannot set
aside federal law either. See Art. VI, U.S. Const. (directing that
the “Laws of the United States . . . shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.”).
Turning to the merits, I think the trial court erred by
elevating state law in a vacuum and disregarding the federal
parameters binding upon Florida’s redistricting work. Drawing a
North Florida congressional district to ensure wins for the
preferred candidate of black voters, as required by the Fair
Districts Amendment’s (FDA) diminishment clause, Art. III, § 20,
Fla. Const., is only permissible under federal equal protection
principles if current evidence validates the need for a strong-
medicine remedy to combat pervasive and purposeful
discrimination. No such evidence exists here to support a 2020s-
era diminishment clause-based remedy. Thus, I cannot affirm the
32
trial court’s decision to enforce the diminishment clause, to
vacate the existing enacted map, or to order the map strategically
redrawn so that Congressional District 5’s (CD-5) black voters
will continue winning elections in the 2020s.
A.
Under state law, the Legislature’s task of drawing
congressional districts after the 2020 census came with an FDA
requirement to ensure that minority voters in North Florida’s
CD-5 would continue electing the representative of their choice.
Art. III, § 20, Fla. Const. (requiring that “districts shall not be
drawn with the . . . result of . . . diminish[ing the] ability [of racial
minorities] to elect representatives of their choice”); see also In re
Senate Joint Resolution of Legislative Apportionment 100, 334 So.
3d 1282, 1289 (Fla. 2022) (interpreting the FDA’s diminishment
clause to prohibit the Legislature from “weaken[ing] [a]
historically performing minority district where doing so would
actually diminish a minority group’s ability to elect its preferred
candidates” (quoting In re Senate Joint Resolution of
Apportionment 1176 (Apportionment I), 83 So. 3d 597, 625 (Fla.
2012))). Black voters in CD-5 had elected their choice
congressional candidate in the three most-recent general
elections. And under these circumstances the FDA required that
2020s-cycle redistricting lines be drawn to protect those voters’
ability to continue electing their candidate of choice. Of course,
compliance with the diminishment clause and its race-
preferential ground rule also meant locking in—on the basis of
race—election futility for thousands of other district voters who
prefer other candidates. These voters would stand little chance of
electing their choice of candidate after a strategic, clause-directed
“effort to ‘segregate . . . voters’ on the basis of race.” Shaw v.
Reno, 509 U.S. 630, 647 (1993) (O’Connor, J.) (quoting Gomillion
v. Lightfoot, 364 U.S. 339, 341 (1960)).
The FDA wasn’t, however, the only legal standard regulating
the Legislature’s post-2020 redistricting work. Federal law—“the
supreme Law of the Land,” Art. VI, U.S. Const.—sets strict
parameters upon states that would draw or redraw congressional
districts on the basis of race. Appellees demanded under the FDA
that the trial court enforce a legal guarantee of electoral success
33
in favor of CD-5’s black voters to the detriment of other voters
(while also subordinating traditional race-neutral districting
principles (like compactness) that the FDA relegates to tier 2
status). Because so incorporating a diminishment clause-based
remedy into North Florida’s 2020s redistricting process required
“district lines [to be] obviously drawn for the purpose of
separating voters by race[,] . . . careful scrutiny [was required]
under the Equal Protection Clause regardless of the motivations
underlying their adoption.” Shaw, 509 U.S. at 645; see also
Amend. XIV, § 1, U.S. Const. (Equal Protection Clause)
(forbidding States to “make or enforce any law which shall . . .
deny to any person within its jurisdiction the equal protection of
the laws”). Under federal electoral parameters Florida couldn’t
undertake line-drawing favoring the choice candidate of CD-5’s
black voters without scrutinizing that work under federal equal
protection principles.
In most circumstances the “Equal Protection Clause
prohibits a State, without sufficient justification, from ‘separating
its citizens into different voting districts on the basis of race.’”
Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178, 187
(2017) (quoting Miller v. Johnson, 515 U.S. 900, 911 (1995)). In
fact, we consider such “[c]lassifications of citizens solely on the
basis of race [to be] ‘. . . by their very nature odious to a free
people whose institutions are founded upon the doctrine of
equality.’” Shaw, 509 U.S. at 643 (quoting Hirabayashi v. United
States, 320 U.S. 81, 100 (1943)); see also LULAC v. Perry, 548
U.S. 399, 511 (2006) (Roberts, C.J., concurring in part and
dissenting in part) (recognizing ‘‘a sordid business, this divvying
us up by race”). Because the FDA’s diminishment clause would
apply an overtly race-based redistricting scheme, the Legislature
and Governor had to decide in 2022 if federal law permitted them
to divvy up North Florida voters into districts by race. See
Advisory Opinion to the Governor re Whether Article III Section
20(a) of the Florida Constitution Requires the Retention of a
District in Northern Florida, 333 So. 3d 1106 (Fla. 2022)
(requesting an advisory opinion from the Florida Supreme Court
specifically relating to the constitutionality of redistricting CD-5);
art. VI, U.S. Const.; Candidate Oath, § 99.021, Fla. Stat.
(requiring legislators and officers by oath to “support [both] the
Constitution of the United States and the Constitution of
34
Florida”); see also Bethune-Hill, 580 U.S. at 187 (recognizing
electoral districting to be “a most difficult subject for legislatures”
because of “competing considerations” (quoting Miller, 515 U.S.
at 915)). They concluded that they couldn’t both apply the
diminishment clause in favor of CD-5’s black voters and satisfy
federal prohibitions against race-based district line-drawing.
Consequently, their 2022 enacted map drew more regular,
traditional-looking district lines in North Florida that didn’t keep
together black voters from the former CD-5—an oddly elongated,
handlebar-mustache-looking, Jacksonville to Gadsden County
district. See ch. 2022-265, Fla. Laws (2022); § 8.0002, Fla. Stat.
(2022).
B.
And so, now, Appellees’ challenge tees up the question of
whether the State parties had to carry out the FDA
diminishment clause’s minority-voter, candidate-preference
mandate in this redistricting cycle. Appellees argue that the
court’s analysis should ignore elephant-in-the-room federal law
problems with the FDA’s diminishment clause for standing and
other reasons. But the Supremacy Clause and our own cases
eliminate this path as a credible option. See, e.g., Jones v. Grace
Healthcare, 320 So. 3d 191 (Fla. 1st DCA 2021) (recognizing that
we are “oath-bound to follow” extant federal law)). Alternatively,
Appellees ask us to affirm the trial court’s order requiring the
Legislature and Governor to redraw the congressional map in
compliance with the FDA because the diminishment clause is
tantamount to applying section 5 of the Voting Rights Act of 1965
and comports with federal law. See 52 U.S.C. § 10304(b). Indeed,
the Florida Supreme Court recognized that the FDA’s
diminishment clause is modeled on Section 5 and “guided by [its]
prevailing United States Supreme Court precedent.”
Apportionment I, 83 So. 3d at 620. Here, I agree that a close look
at section 5 and its corresponding precedent is not only
important, but ultimately determinative.
Congress enacted Section 5 under the Fifteenth Amendment
provision authorizing “appropriate” legislation to secure the
rights of all citizens to vote, regardless of race. “Section 5 was
directed at preventing a particular set of invidious practices that
35
had the effect of ‘undoing or defeating the rights recently won by
nonwhite voters.’” Miller, 515 U.S. at 925 (quoting a House report
from 1969); see also Shaw, 509 U.S. at 639–41 (describing ugly
patterns of pervasive racial discrimination leading to the
enactment of the Voting Rights Act). Congress targeted Section 5
against particular states and jurisdictions where egregious
discrimination and the circumvention of courts made “case-by-
case litigation . . . inadequate to combat widespread and
persistent discrimination in voting, because of the inordinate
amount of time and energy required to overcome the
obstructionist tactics invariably encountered in these lawsuits.”
South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966). Neither
the State of Florida nor jurisdictions in North Florida were
covered by it. When the United States Supreme Court first
addressed Section 5’s constitutionality, it justified the Act’s
perverse and substantial cost to equal protection in view of the
exceptional conditions on the ground at that time, “systematic
resistance to the Fifteenth Amendment,” and “obstructionist
tactics.” Id. at 318, 328, 334. It considered Section 5 to be a
necessary “emergency” remedy because of the “unremitting and
ingenious defiance of the Constitution” and courts, in a context
where “Congress concluded that the unsuccessful remedies which
it had prescribed in the past would have to be replaced by sterner
and more elaborate measures in order to satisfy the clear
commands of the Fifteenth Amendment.” Id. at 308-09. Under
those circumstances, the Court upheld the Act. And Congress
subsequently renewed Section 5’s application a few times over
the following decades, bringing vast electoral progress across the
nation.
With the passage of time and improved voting conditions,
however, the evidence weakened for continuing to give Section 5-
based preferences to minority voters and their candidates of
choice. By the 1990s and early 2000s, the United States Supreme
Court began warning that Fifteenth Amendment, race-based
districting practices were increasingly problematic under the
Fourteenth Amendment. Miller, 515 U.S. at 926-27. The Court
developed “serious misgivings about the constitutionality of
Section 5.” Northwest Austin Mun. Util. Dist. No. One v. Holder,
557 U.S. 193, 202 (2009). And it took the view that “the Act
imposes current burdens and must be justified by current needs.”
36
Id. at 203; see also Students for Fair Admissions, Inc. v. President
and Fellows of Harvard, 600 U.S. 181, 207 (2023) (allowing the
use of racial categories if “remediating specific, identified
instances of past discrimination that violated the Constitution or
a statute” (emphasis added); City of Boerne v. Flores, 521 U.S.
507, 520 (1997) (recognizing that “appropriate” remedial
legislation has “a congruence and proportionality” to the
constitutional violations it is supposed to fix). Justice Thomas
explained the need to reevaluate current evidence underlying
Section 5’s remedial scheme in these terms:
The extensive pattern of discrimination that led the
Court to previously uphold § 5 as enforcing the Fifteenth
Amendment no longer exists. Covered jurisdictions are
not now engaged in a systematic campaign to deny black
citizens access to the ballot through intimidation and
violence. . . . The lack of sufficient evidence that the
covered jurisdictions currently engage in the type of
discrimination that underlay the enactment of § 5
undermines any basis for retaining it. . . . Without such
evidence, the charge can only be premised on outdated
assumptions about racial attitudes in the covered
jurisdictions.
Northwest Austin, 557 U.S. at 226 (Thomas, J., concurring in part
and dissenting in part).
Ultimately, in Shelby County v. Holder, the Court
invalidated Section 5’s coverage formula because current
evidence failed to support its fixed-formulaic application to the
covered jurisdictions. Shelby County v. Holder, 570 U.S. 529
(2013). Shelby County explained:
The Government’s [case] does not even attempt to
demonstrate the continued relevance of the formula to
the problem it targets. And in the context of a decision
as significant as this one—subjecting a disfavored
subset of States to “extraordinary legislation otherwise
unfamiliar to our federal system,” Northwest Austin,
supra, at 211—that failure to establish even relevance is
fatal.
37
* * *
Regardless of how to look at the record, however, no one
can fairly say that [the evidence] shows anything
approaching the “pervasive,” “flagrant,” “widespread,”
and “rampant” discrimination that faced Congress in
1965, and that clearly distinguished the covered
jurisdictions from the rest of the Nation at that time.
Katzenbach, supra, at 308, 315, 331; Northwest Austin,
557 U.S., at 201.
Id. at 552, 554.
Section 5’s legal history, and particularly Shelby County’s
prevailing demand that current evidence must justify the use of a
race-based remedial scheme, applies directly here. For Florida
now to employ its fixed and indefinitely applicable Section 5-
based diminishment clause remedy requires a sturdy, equal
protection-satisfying rationale backed by current evidence of
pervasive and purposeful discrimination. See id.; Northwest
Austin, 557 U.S. at 202; Shaw, 509 U.S. at 657 (recognizing that
“[r]acial gerrymandering, even for remedial purposes, . . .
threatens to carry us further from the goal of a political system in
which race no longer matters”). In other words, the State parties
here weren’t simply free to draw the 2022 map with
diminishment clause-directed lines in the context of an
evidentiary vacuum.
C.
Here stands my problem with Appellees’ case and the trial
court’s order. The record in this case lacks evidence of pervasive
and purposeful racial discrimination sufficient to warrant the
intentional drawing of a diminishment clause-based winning
district for CD-5’s black voters. Appellees point to no evidence
that approaches, for instance, what supported the Voting Rights
Act of 1965 itself. See Katzenbach, 383 U.S. at 308 (highlighting
that “[t]he constitutional propriety of the Voting Rights Act of
1965 must be judged with reference to the historical experience
[and Congress’s voluminous record] explor[ing] with great care
the problem of racial discrimination in voting. The House and
38
Senate Committees on the Judiciary each held hearings for nine
days and received testimony from a total of 67 witnesses . . .
while the debate in the Senate covered 26 days in all”). Along this
line, there is no evidence suggesting that the FDA’s sponsors
undergirded the 2010 initiative process with up-to-date facts
comparable to Congress’s work. Nor do we have a record of
pervasive and purposeful discrimination evidence being provided
to Florida’s voters or being shown to have motivated them to pass
the FDA. See Advisory Opinion to the Attorney General re
Standards for Establishing Legislative District Boundaries, 2 So.
3d 175 (Fla. 2009) (making no mention of evidence justifying a
Section 5-based diminishment clause remedy). Likewise,
Appellees’ current litigation doesn’t supply an up-to-date case
record of pervasive and purposeful racial discrimination
substantiating the need for a drastic Section 5-based remedy.
Rather, the part of Appellees’ brief addressing “specific (and
recent) history of utilizing discriminatory election practices” cites
to court cases beginning in 1945 and ending thirty years ago (also
referencing allegations made in a case twenty years ago that a
court didn’t pass upon).
The absence of discrimination evidence in this case “is
plainly insufficient to sustain such an extraordinary [Section 5-
based] remedy” as advocated by Appellees under the
diminishment clause. Northwest Austin, 557 U.S. at 228
(Thomas, J., concurring in part and dissenting in part). Because
application of the diminishment clause isn’t justified by evidence
of “current needs,” it cannot be considered an appropriate “strong
medicine” remedial option in this redistricting cycle. Shelby
County, 570 U.S. at 535–36. While “exceptional conditions can
justify legislative measures not otherwise appropriate,” id. at 535
(quoting Katzenbach, 383 U.S. at 334), Appellees fail to show
exceptional conditions validating their argument for redrawing
the 2022-enacted maps to favor the candidates of CD-5’s black
voters. Thus, I cannot conclude that the Legislature and
Governor got their recent redistricting work wrong when they
declined to apply the clause’s Section 5-based diminishment
remedy in North Florida. Cf. Dep’t of Fin. Servs. v. Danahy &
Murray, P.A., 246 So. 3d 466, 468–69 (Fla. 1st DCA 2019)
(recognizing that the legislature’s work comes to the court
“clothed with a presumption of constitutionality”).
39
* * *
To sum up, when the time came for Florida to draw new
congressional district lines after the 2020 census, the FDA’s
diminishment clause could only require the purposeful redrawing
of a black-voter performing district across North Florida if
evidence showed a compelling remedial need for it. The
Legislature and Governor identified no voting discrimination-
based justification for drawing such a district. They settled
instead on a traditional-looking map that eliminated the previous
cycle’s 200-mile-long, Jacksonville-to-Gadsden County,
handlebar-mustache-looking district that had performed for black
voters in three prior elections. Now, in this legal challenge to the
State parties’ redistricting efforts, Appellees haven’t shown that
it was legally permissible for them, much less required, to draw
lines so that a North Florida district will perform for black voters.
Given the evidentiary vacuum, courts have no basis to impose a
Section 5-based diminishment clause remedy in this litigation. To
do so would violate federal equal protection principles.
Accordingly, I see no diminishment clause-based basis for
vacating the map enacted in 2022, or to order the map redrawn
so that CD-5’s black voters can elect their preferred candidate in
this decade’s elections.
WINOKUR, J., concurring.
The dissent contends that we have “deviated from past
practice” in choosing to exercise our constitutionally derived
jurisdiction in this case rather than to pass this appeal to the
supreme court pursuant to article V, section 3(b)(5) of the Florida
Constitution. This claim implies that we have an obligation to
yield our own jurisdiction to the supreme court for resolution. I
disagree.
As a preliminary matter, it cannot be denied that this Court
is the court with jurisdiction to hear this appeal. Art. V, § 4(b)(1),
Fla. Const. While we certainly have constitutional authority to
certify this appeal to the supreme court for resolution, we are the
court the constitution has designated to hear this appeal. And I
am unconvinced that we had an obligation to surrender that
jurisdiction.
40
First, the “past practice” we have purportedly deviated from
is application of the so-called “three-part test” of Harris v. Coal.
to Reduce Class Size, 824 So. 2d 245 (Fla. 1st DCA 2002), which
notes that we are to determine “whether (1) the order or
judgment is appealable; (2) the issues raised ‘are of great public
importance’ or are likely to ‘have a great effect on the proper
administration of justice throughout the state’; and (3)
circumstances exist which require that the supreme court
immediately resolve the issues, rather than permitting the
normal appellate process to run its course.” Id. at 246–47. But
this is not a “test” set forth in case law; it is simply a restatement
of the requirements of section 3(b)(5). 1 We may certify the appeal
to the supreme court in accordance with section 3(b)(5), but our
decision to do so is an administrative assessment on our part. We
are not violating case law if we choose not to certify; we are
merely exercising our constitutional duty to hear an appeal
within our jurisdiction and exercising our discretion not to send
the case to the supreme court.
Second, the dissent’s argument presumes that the conclusion
of this proceeding will inevitably result in action by the Florida
Legislature in its 2024 session, and for this reason immediate
resolution is required. I harbor doubts that this suit will end with
this appeal, whether heard in this court or in the supreme court,
so the contention that the parties need the case to be resolved
before the legislative session seems dubious.
But even if this doubt were unfounded, even if it were
certain that the Florida Legislature would act in its 2024 session
based on the outcome of this proceeding, and that this certainty
meant that the case needs immediate resolution, I still cannot
agree that we had an obligation based in case law to certify this
case for the supreme court’s resolution under section 3(b)(5). I do
1 The supreme court “[m]ay review any order or judgment of
a trial court certified by the district court of appeal in which an
appeal is pending to be of great public importance, or to have a
great effect on the proper administration of justice throughout
the state, and certified to require immediate resolution by the
supreme court.” Art. V, § 3(b)(5), Fla. Const.
41
not dispute that the order under review is “of great public
importance,” but I fail to discern any reason why this fact creates
a basis for us to give up our constitutional obligation to decide
this appeal in favor of the supreme court. Nothing in the
constitution implies that a district court of appeal ever has an
affirmative obligation to certify a case to the supreme court, be it
a certification pursuant to section 3(b)(4) 2 or section 3(b)(5).
I respect my dissenting colleague’s view that this appeal
should have been certified to the supreme court, but disagree.
But because the decision to pass an appeal within our jurisdiction
to the supreme court under section 3(b)(5) is an internal
administrative determination, I reject even an implication that
this court could ever abuse its discretion in choosing not to do so,
under the constitution or under case law.
LONG, J., concurring.
I concur in the Court’s decision but write separately to
discuss an alternative interpretation of article III, section 20.
On November 2, 2010, Florida voters adopted a
constitutional amendment to address congressional redistricting.
Florida courts have only addressed the newly adopted provisions
in a handful of cases. And none has addressed how the
provisions should be read in light of existing equal protection
requirements. We should take on that question and, as is our
duty, construe the provision in harmony with existing
constitutional requirements.
As adopted, the constitutional provision says:
In establishing congressional district
boundaries:
2 Article V, section 3(b)(4) gives the supreme court
jurisdiction to review decisions certified by district courts of
appeal to be of great public importance or to be in conflict with a
decision of another district court of appeal.
42
(a) No apportionment plan or individual
district shall be drawn with the intent to favor
or disfavor a political party or an incumbent;
and districts shall not be drawn with the intent
or result of denying or abridging the equal
opportunity of racial or language minorities to
participate in the political process or to
diminish their ability to elect representatives
of their choice; and districts shall consist of
contiguous territory.
(b) Unless compliance with the standards in
this subsection conflicts with the standards in
subsection (a) or with federal law, districts
shall be as nearly equal in population as is
practicable; districts shall be compact; and
districts shall, where feasible, utilize existing
political and geographical boundaries.
(c) The order in which the standards within
subsections (a) and (b) of this section are set
forth shall not be read to establish any priority
of one standard over the other within that
subsection.
Art. III, § 20, Fla. Const.
The constitutional amendment contains several new
redistricting requirements. This case turns on the middle clause
in subsection (a), which prohibits the drawing of congressional
districts “with the intent or result of denying or abridging the
equal opportunity of racial or language minorities to participate
in the political process or to diminish their ability to elect
representatives of their choice.” On its face, this provision does
two things. It ensures that racial and language minorities
receive an equal opportunity to participate in the political process
and to elect representatives of their choice. The federal courts
often refer to these two concepts as dilution and retrogression.
As we sort through what they mean in the context of the Florida
Constitution, we will call them the process and weight
requirements.
No Florida court has directly adjudicated a dispute on this
part of the amendment, but our supreme court has spoken
generally to the provision. See In re Senate Joint Resol. of Legis.
Apportionment 1176, 83 So. 3d 597, 619 (Fla. 2012) (comparing
the provision to similar language in the VRA). Though issued as
a general discourse on the new constitutional provisions and not
as an exercise of its judicial adjudicatory power (i.e., obiter
dictum), the supreme court has suggested that interpretation of
article III, section 20 be guided by federal VRA jurisprudence.
Id. at 620 (noting that Florida’s provision is “[c]onsistent with the
goals of Sections 2 and 5 of the VRA”). 1 In providing a general
discussion about the process and weight requirements, the
supreme court did not attempt to evaluate the provisions by
considering their place and context in the broader Florida
Constitution. Instead, it simply pointed out the similarities to
the VRA. Presumably the supreme court did not engage in a
deeper analysis on this question because the discussion was
unrelated to the case before it. But now we have a live dispute
before us and Appellants have argued that if we read the VRA
provisions, along with all their federal court baggage, into article
III, section 20, the result is a provision inconsistent with our
equal protection guarantee. 2
The supreme court understands our independent duty and,
even while suggesting the use of the VRA’s interpretive
principles, also recognized that article III, section 20 is different
from the VRA and other states’ similar provisions. “Florida’s
1 To the extent that the supreme court intended to fully
adopt federal VRA jurisprudence, Chief Judge Osterhaus and
Judges B.L. Thomas and Tanenbaum have thoughtfully
explained why the trial court’s final judgment should still be
reversed.
2 While Secretary Byrd points out that Florida has its own
equal protection provision, the argument is primarily presented
via federal equal protection. We can, however, fully resolve this
case on Florida constitutional grounds.
44
provision is unique among the states in that it incorporates
language from the VRA but does not explicitly reference the
VRA.” Id. That is to say that Florida law is different from
federal law. And in interpreting Florida law, we keep in mind
that “lockstepping [with federal law] disregards [the] state’s
particular history, linguistics, norms, and intratextual analysis.”
Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making
of American Constitutional Law, 132 HARV. L. REV. 811, 818
(2018). Understanding this, the supreme court explained that we
have an independent duty to interpret our own constitution. 3 See
In re Senate Joint Resol. of Legis. Apportionment 1176, 83 So. 3d
at 621 (“The Court nonetheless recognizes our independent
constitutional obligation to interpret our own state constitutional
provisions.”). 4 Consistent with these principles, we should
endeavor to interpret article III, section 20 faithfully and
independently. This requires carefully reviewing its text and
context. We must consider the original public meaning of the
text and seek to read the provision harmoniously with article I,
section 2.
3 “[A]n underappreciation of state constitutional law has
hurt state and federal law and has undermined the appropriate
balance between state and federal courts in protecting individual
liberty.” Jeffrey S. Sutton, 51 Imperfect Solutions: States and the
Making of American Constitutional Law 6 (2018). “Nothing
compels the state courts to imitate federal interpretations . . .
when it comes to the rights guarantees found in their own
constitutions, even guarantees that match the federal ones letter
for letter.” Id. at 16.
4 It also reinforces the distinctiveness of federal law and
Florida law that two cases are simultaneously proceeding at this
very time regarding this same congressional redistricting. The
federal courts will ultimately determine what the federal
constitution and VRA require. Florida courts will determine
what the Florida Constitution requires.
45
Harmonious Reading
We begin with article I, section 2. Article I sets out our
Declaration of Rights. Article I, section 2 contains our “[b]asic
rights” and says that “[a]ll natural persons . . . are equal before
the law” and that “[n]o person shall be deprived of any right
because of race.” Quite simply, article I, section 2 requires that
the law treat everyone equally regardless of race. This is a
bedrock, fundamental tenet of our republic. It is our “basic
right.”
We see that article III, section 20 does not exist in a vacuum.
It is found in a constitution that expressly prohibits race-based
deprivations. Yet Appellees argue the provision requires racial
balkanization. There is no indication anywhere to suggest that
article III, section 20 was meant to undermine or limit our “basic
rights” found in article I, section 2. And so it must be read and
interpreted in light of article I, section 2 and the rest of the
Florida Constitution.
The harmonious-reading canon states that the “provisions of
a text should be interpreted in a way that renders them
compatible, not contradictory.” Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 180
(2012). “[O]ne part is not to be allowed to defeat another, if by
any reasonable construction the two can be made to stand
together.” Thomas M. Cooley, A Treatise on the Constitutional
Limitations Which Rest upon the Legislative Power of the States
of the American Union 58 (1868). “The imperative of harmony
among provisions is more categorical than most other canons of
construction because it is invariably true that intelligent drafters
do not contradict themselves.” Scalia & Garner, supra, at 180.
We, of course, assume the people of Florida are intelligent and
intentional in their adoption of constitutional amendments.
Without any indication that article III, section 20 was meant to
subvert our basic equal protection rights, we must read the two
provisions harmoniously. And we need not contort the language
to do so. As we have already pointed out, the provision is
addressed to two subjects—equal process and equal weight—
neither of which conflicts with equal protection.
46
Ordinary Meaning
Experienced election lawyers who have spent careers
litigating the morass of the VRA may instinctively view article
III, section 20 through the lens of federal law. But article III,
section 20 was adopted by millions of ordinary Florida voters, not
by highly specialized election lawyers. And so we must give the
text its ordinary public meaning. That is our duty. “In
interpreting this text, we are guided by the principle that ‘[t]he
Constitution was written to be understood by the voters; its
words and phrases were used in their normal and ordinary as
distinguished from technical meaning.’” D.C. v. Heller, 554 U.S.
570, 576 (2008) (quoting United States v. Sprague, 282 U.S. 716,
731 (1931)); see also McDonald v. City of Chicago, Ill., 561 U.S.
742, 828 (2010) (Thomas, J., concurring in part and concurring in
judgment) (“When interpreting constitutional text, the goal is to
discern the most likely public understanding of a particular
provision at the time it was adopted.”). “The ordinary-meaning
rule is the most fundamental semantic rule of interpretation.”
Scalia & Garner, supra, at 69. “Interpreters should not be
required to divine arcane nuances or to discover hidden
meanings.” Id.
[E]very word employed in the constitution is to be
expounded in its plain, obvious, and common sense,
unless the context furnishes some ground to control,
qualify, or enlarge it. Constitutions are not designed for
metaphysical or logical subtleties, for niceties of
expression, for critical propriety, for elaborate shades of
meaning, or for the exercise of philosophical acuteness
or judicial research. They are instruments of a practical
nature, founded on the common business of human life,
adapted to common wants, designed for common use,
and fitted for common understandings.
Joseph Story, Commentaries on the Constitution of the United
States 157–58 (1833). Below we will examine more closely the
ordinary meaning of “political process” and “ability to elect
representative of their choice.” But before we do, we will look to
the broader context.
47
Ballot language is a useful contextual tool when evaluating
the original public meaning of constitutional language adopted by
plebiscite. It was the vehicle used to explain the amendment to
the voters who adopted it. Ballot language cannot be used to
trick voters into adopting provisions with hidden meanings. And
so we must ask whether a proposed interpretation aligns with a
facial review of the ballot language. Here, we examine for any
indication that the amendment would require Appellees’
proposed race-based voter segregation. The ballot explained the
constitutional amendment in this way:
Congressional districts or districting plans may not be
drawn to favor or disfavor an incumbent or political
party. Districts shall not be drawn to deny racial or
language minorities the equal opportunity to participate
in the political process and elect representatives of their
choice. Districts must be contiguous. Unless otherwise
required, districts must be compact, as equal in
population as feasible, and where feasible must make
use of existing city, county and geographical boundaries.
See Advisory Opinion to Att'y Gen. re Standards For Establishing
Legis. Dist. Boundaries, 2 So. 3d 175, 180 (Fla. 2009). We find
nothing to support Appellees’ proposed interpretation. The
diligent voter that read the amendment’s text, and the ballot
language explaining it, would have no reason to suspect that it
would lock in racial gerrymanders in perpetuity. There was
nothing to suggest the amendment would require the legislature
to focus on racial demographics and voting patterns or to carve
up neighborhoods and communities to ensure one racial group
prevails over another. The people could not have known all this
because it is plainly not there. Appellees only find it by imposing
“arcane nuances” and “hidden meanings” on the otherwise
commonplace language. 5 Voters were asked if they wanted to
5 Even assuming the phrases are taken from the VRA and
have known meanings, we still must ask: known to whom? We
are duty-bound to give the language its original public meaning.
To the extent that VRA jurisprudence is coherent at all, the
phrases might be known only to a handful of election lawyers
around the state. The amendment process cannot be used to
48
amend their constitution to prohibit the drawing of districts that
would “deny racial or language minorities the equal opportunity
to participate in the political process and elect representatives of
their choice.” That’s it.
As we see below, the original public meaning of the provision
was a complement to the existing constitutional demand for equal
protection under the law. Equal process and equal weight for all.
Having made harmonious-reading and ordinary-meaning
considerations, we now seek to faithfully interpret the provision
in light of them.
The Process Requirement
The process requirement is the guarantee of “equal
opportunity of racial or language minorities to participate in the
political process.” We consider what an ordinary voter would
understand the word “process” to mean. Process is commonly
defined as a “series of actions or steps taken in order to achieve a
particular end.” Process, NEW OXFORD AMERICAN DICTIONARY
(3d ed. 2010); see also Process, MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY (11th ed. 2003) (defining process as “a series of
actions or operations conducing to an end”). There is no
indication from the text or context that the language used was
intended to mean something other than this ordinary definition.
The original public meaning, therefore, of participation in the
“political process” is the actions and operations associated with
voting. It deals with the “methods for conducting a part of the
voting process that might . . . be used to interfere with a citizen’s
ability to cast his vote.” Holder v. Hall, 512 U.S. 874, 917–18
(1994) (Thomas, J., concurring in judgment). Such as
“registration requirements, . . . the locations of polling places, the
times polls are open, the use of paper ballots as opposed to voting
machines, and other similar aspects of the voting process.” Id. at
922. The process requirement “focuses on ballot access and
counting.” Allen v. Milligan, 599 U.S. 1, 46 (2023) (Thomas, J.,
dissenting). The process requirement guarantees equal
hoodwink millions of Florida voters through bait-and-switch
lawyer-speak.
49
treatment in all aspects of the voting process, from registration to
ballot counting and everything in between.
The Weight Requirement
The weight requirement is the guarantee that a racial or
language minority does not have a diminished “ability to elect
representatives of their choice.” There is no serious dispute
about the meaning of the words used in this portion of the
provision. Everyone agrees it cannot mean an individual has a
right to elect his candidate of choice. This of course is impossible.
But the language does not suggest that reading anyway. The
provision, especially when viewed together with the ballot
language and article I, section 2, guarantees an equal, that is,
non-diminished, ability to elect your candidate of choice. This
provision is Florida’s version of one person, one vote. It
constitutionalizes “the fundamental principle of representative
government . . . of equal representation for equal numbers of
people, without regard to race.” Reynolds v. Sims, 377 U.S. 533,
560–61 (1964). It prohibits “[w]eighting the votes of citizens
differently, by any method or means.” Id. at 563. This could be
violated where minority voters are packed into higher population
districts while non-minority voters are drawn into lower
population districts. In such a case, the minority voter’s vote
would have a diminished weight when compared to a non-
minority counterpart. Equal process and equal weight.
Reading the provision this way is faithful to the text and to
its place in the broader constitution. It reads article III, section
20 as a complement to article I, section 2, rather than in conflict.
To guarantee racial and language minorities receive an equal
opportunity to participate in the political process. And to ensure
an equal ability (one that is not diminished as compared to non-
racial and non-language minorities) to elect representatives of
their choice.
Appellees argue we must construe the weight requirement as
the federal courts have interpreted similar language in the VRA.
They suggest the language prohibits redistricting that reduces
the number of majority-minority racial districts. In effect, they
argue the provision requires the continued racial segregation of
50
voters. But there is no evidence that the people of Florida
intended to adopt “the sordid business of divvying us up by race.”
Allen v. Milligan, 599 U.S. 1, 86 (2023) (Thomas, J., dissenting)
(internal quotations omitted). Appellees’ proposed interpretation
thwarts article I, section 2. So it must be rejected.
Along with its manifest conflict with article I, section 2, we
pause here to discuss two other problems with Appellees’
proposed construction. First, constitutional rights are individual
rights. They are not rights conveyed to discrete racial or ethnic
groups. The prohibition on the diminishment of racial minorities’
ability to elect representatives of their choice is a protection for
individual voters. Yet, without a basis in the text, Appellees’
interpretation improperly treats minority voters as a monolith.
No amount of clever legal-speak and rationalization can escape
this. It steals the individual right of a minority voter to be
protected from race-based disenfranchisement and exchanges it
for race-based voter segregation. The provision must instead be
read to convey a right of equal voting access to individuals. 6
Second, the term “diminish” requires a point of reference—
diminished as compared to what? Appellees’ interpretation fails
6 No measure of black voting patterns has ever revealed
100% black voter solidarity on candidates. This puts the lie to
Appellees’ proposed interpretation. Even assuming 90%
consistency in black voting patterns, it necessarily means that
10% of black voters have been intentionally deprived of the
ability to elect a representative of their choice based on their
race. Instead of their constitutional right to vote in a fair district
made up of a broad swath of the greater community, they are
swept into racially segregated districts and intentionally denied
any meaningful chance to elect their representatives of choice.
And it is only under Appellees’ proposed interpretation that
voters are disenfranchised based on their race. Under race-blind
redistricting, voters never win or lose on account of their race.
Any regime that racially marginalizes voters is unconstitutional
and patently unjust. Treating citizens as individuals without
regard for race is the only way to ensure full and equal
participation in the political process.
51
here too because it requires a comparison to a previous district’s
racial makeup. This interpretation is stuck looking backwards
and can never get to the central point of the provision—ensuring
all voters are treated equally. Instead, it turns the provision on
its head. It fails because it converts a race-based prohibition into
a race-based requirement. The constitution cannot demand that
all voters are treated equally without regard to race and at the
same time demand that voters are treated differently based on
race.
Rather than read incompatibility into the provision, it should
be read as a companion. The districts cannot be drawn to
diminish an individual racial-minority-voter’s ability to elect a
representative of choice as compared to an individual non-racial-
minority-voter. This is ultimately accomplished by ensuring all
voters are treated equally without regard to race.
The harmonious-reading and ordinary-meaning canons are
our basic interpretive tools. Their use is our duty. We are guided
by the text. We read the text in its broader context. In doing so,
we consider its public meaning at the time it was adopted. The
amendment was adopted based on its anodyne ballot language
and constitutional text. Rather than use our foundational
interpretive tools, Appellees ask us to open the secret trap door
and unleash the highly controversial and hotly disputed federal
VRA jurisprudence into the Florida Constitution. We should
decline that invitation.
Conclusion
The Florida Constitution includes strong equal protection
language and an express prohibition on the consideration of race.
Article III, section 20 is a complement to that protection. A
faithful reading requires us to “resolve these cases in a way that
would not require the [Florida] Judiciary to decide the correct
racial apportionment of [Florida’s] congressional seats.” Allen v.
Milligan, 599 U.S. 1, 46 (2023) (Thomas, J., dissenting).
Article III, section 20 requires that racial and language
minority voters receive an equal opportunity to participate in the
political process and have a non-diminished ability to elect
52
representatives of their choice. The trial court erred in reading a
racial segregation mandate into the constitutional provision. We
are therefore correct to reverse the final order and remand to the
trial court.
BILBREY, J., dissenting.
I respectfully dissent. As explained below, we should have
passed this appeal through to the Florida Supreme Court for
immediate resolution as the parties jointly requested. Barring
that, we should affirm because the currently enacted
congressional districts diminish Black voters’ “ability to elect
representatives of their choice” in violation of one of the Florida
Constitution’s Fair Districts Amendments when compared to the
benchmark district the Florida Supreme Court previously
approved. Art. III, § 20(a), Fla. Const. And there are or can be
alternatives to the current districts, including two plans the
Legislature already passed, that are constitutional under the
Equal Protection Clause of the United States Constitution. U.S.
const. amend XIV, § 1.
We Should Have Passed the Appeal
Through to the Florida Supreme Court
The trial court issued its 55-page final order after hearing
and final judgment on September 2, 2023. The court determined
that the currently enacted congressional redistricting plan in
Laws of Florida, Chapter 2022-265, codified as section 8.0002(5),
Florida Statutes (2023), violates the Fair Districts Amendment in
article III, section 20 of the Florida Constitution. Appellants
promptly filed their notice of appeal on September 4. Just four
days later, Appellants and Appellees filed what was styled as
“Joint Time-Sensitive Suggestion for Pass-Through Certification”
asking us to certify the judgment for immediate resolution by the
Florida Supreme Court. 1 See Art. V, § 3(b)(5), Fla. Const.; Fla. R.
App. P. 9.125(c).
1 We rarely see a suggestion for certification filed by a party.
In my almost nine years on this court, this is the first time I
recall receiving a joint suggestion for certification approved by all
the parties to an appeal.
53
The parties explained clearly why we should have permitted
the Florida Supreme Court to immediately take jurisdiction of
the appeal. The “judgment on appeal addresses congressional
redistricting issues of great public importance.” The “appeal
requires immediate resolution by the Florida Supreme Court to
provide certainty to voters, potential candidates, and election
officials regarding the configuration and validity of Florida’s
congressional districts sufficiently in advance of the 2024
elections.”
Admittedly, the joint suggestion, compelling though it was,
was not binding on us. Rather, the issues for our determination
in deciding whether to pass the appeal through to the Florida
Supreme Court were:
whether (1) the order or judgment is appealable; (2) the
issues raised “are of great public importance” or are
likely to “have a great effect on the proper
administration of justice throughout the state”; and (3)
circumstances exist which require that the supreme
court immediately resolve the issues, rather than
permitting the normal appellate process to run its
course.
Harris v. Coal. to Reduce Class Size, 824 So. 2d 245, 246–47 (Fla.
1st DCA 2002); see also ACLU v. Hood, 881 So. 2d 664, 666 (Fla.
1st DCA 2004). Under this test, and consistent with our past
practice, we should have promptly certified the judgment for
immediate resolution by the Florida Supreme Court.
The first prong of the Harris test was easily met. The final
judgment from the trial court was appealable. See Fla. R. App. P.
9.030(b)(1)(A). Likewise as to the second prong from Harris,
whether a congressional redistricting plan is unconstitutional is
undoubtedly a matter of great public importance. See League of
Women Voters of Fla. v. Detzner, 178 So. 3d 6, 7 (Fla. 1st DCA
2014) (certifying the judgment “declaring parts of the Florida
Legislature’s 2012 congressional redistricting plan
unconstitutional” for direct review when the next election was
“approximately two years away”). The Florida Supreme Court
on this very question “acknowledge[d] the importance of the
54
issues presented.” Advisory Op. to the Governor Re: Whether
Article III, Section 20(A) of the Fla. Const. Requires the Retention
of a Dist. in N. Fla., 333 So. 3d 1106, 1108 (Fla. 2022).
Finally, the third prong of the Harris test was met here. The
trial court’s final judgment directs the Florida “House of
Representatives and Senate to enact a remedial map in
compliance with Article III, Section 20 of the Florida
Constitution.” The Florida Legislature is set to convene on
January 9, 2024. See Art. III, § 3(b), Fla. Const. Qualifying in
Florida for the United States House of Representatives starts on
April 8, 2024. See § 99.061(8), Fla. Stat. (2023). The parties were
correct when they cited Hood and stated that “[t]here is
insufficient time for this court to provide a first-tier review prior
to the issues being heard by the Supreme Court of Florida” if the
appeal was going to be resolved in time for the 2024 election. 2
881 So. 2d at 666; see also Advisory Op. to the Governor, 333 So.
3d at 1108 (recognizing the “need for quick resolution and
finality” on the redistricting question now before this court). 3
2 The parties’ stipulation before the trial court provided that
if we granted pass-through certification to the Florida Supreme
Court and the Court took up the appeal, “the Parties will propose
a schedule that will permit resolution by the Florida Supreme
Court by December 31, 2023, to allow the Florida Legislature to
take up any remedial map, if necessary, during the 2024
legislative session beginning on January 9, 2024 for enactment
no later than April 1, 2024.”
3 After we informed the parties that we were hearing this
matter en banc, they provided a stipulation regarding the
briefing schedule. They noted “that time is of the essence.” They
requested that we “dispense with oral argument and resolve this
case on the briefs.” Finally, in the stipulation the parties
requested that we issue our opinion by November 22, 2023, to
allow for Florida Supreme Court review and Legislative action if
necessary “before the Legislature’s scheduled adjournment on
March 8, 2024.”
55
In Detzner we certified the judgment, finding that it was of
great public importance and required immediate resolution by
the Florida Supreme Court, when the congressional election at
issue was over two years away. 178 So. 3d at 6. 4 Here, there is
much greater urgency to ultimately resolve the questions raised,
with less than a month and half to the next Legislative session,
less than five months until qualifying, and less than a year until
the next congressional election. The 2022 election was already
conducted under a map that the trial court found violated Fair
Districts. See Byrd v. Black Voters Matter Capacity Bldg. Inst.,
Inc., 339 So. 3d 1070, 1074 (Fla. 1st DCA 2022). 5 Our action in
delaying Florida Supreme Court review risks having the 2024
House of Representatives election being conducted again under a
map of dubious constitutionality.
We knew when the suggestion for pass-through was before
us in September that the Florida Supreme Court would likely
have jurisdiction no matter how we ruled on the appeal. The
majority opinion provides the Supreme Court with various bases
for jurisdiction. See Art. V, § 3(b)(3), Fla. Const. And the Court
has noted “that we take seriously our obligation to provide
certainty to candidates and voters regarding the legality of the
state’s congressional districts.” League of Women Voters of Fla. v.
4 I do not contend that Detzner is binding on this court since
the appropriateness of certification differs in each case and the
rule says that a “district court of appeal may make such
certification.” Fla. R. App. P. 9.125(a) (emphasis added).
Nonetheless, using the test from Harris, we should have followed
the example of Detzner and certified the judgment.
5 As for any argument that we properly declined to pass
through the appeal since the parties already appeared before us
in Byrd, that case involved only the procedural question of
whether it was appropriate for the trial court’s temporary
injunction to change the status quo before trial. 339 So. 3d at
1075. In Byrd, we did not “reach whether recently enacted
Senate Bill 2-C comports with Article III, section 20, of the
Florida Constitution.” Byrd, 339 So. 3d at 1073. Weightier,
substantive matters must be addressed in this appeal.
56
Detzner (Apportionment VII), 172 So. 3d 363, 372 (Fla. 2015).
Our action in keeping this appeal undermines that assurance of
certainty from the Florida Supreme Court.
Only the Florida Supreme Court can determine whether our
action here functions as a speedbump or a stop sign on the road
to determining whether a map found to violate the Florida
Constitution will apply to the 2024 congressional election. Even
if the enacted map is ultimately found to be constitutional, our
action in not passing the appeal through for immediate resolution
by the Florida Supreme Court creates “uncertainty for the voters
of this state, the elected representatives, and the candidates who
are required to qualify for their seats” in contravention of Florida
Supreme Court policy about the constitutionality of
apportionment. See In re Senate Joint Resol. of Legis.
Apportionment 1176 (Apportionment I), 83 So. 3d 597, 609 (Fla.
2012).
To conclude on this issue, we should have accepted the
parties’ joint suggestion and certified the appeal to the Florida
Supreme Court almost three months ago. By failing to do so, we
have deviated from our past practice and delayed the ultimate
resolution to the detriment of the voters, election officials, and
candidates in North Florida.
We Should Affirm on the Merits
The Enacted Districts
For the 2016, 2018, and 2020 elections, after litigation
discussed below, the Florida Supreme Court approved the
following as congressional District 5 (shown in purple):
57
(“benchmark District 5”); 6 see League of Women Voters of Fla. v.
Detzner (Apportionment VIII), 179 So. 3d 258, 271–73 (Fla. 2015).
After the 2020 Census, the Florida Legislature was required
to reapportion Florida’s United States House of Representatives
districts. § 11.031(1), Fla. Stat. (2023). In furtherance of its
duty, during the last regular session the Legislature passed
CS/SB 102, which would have amended section 8.0002, Florida
Statutes. The bill would have enacted the following as section
8.0002(5) to redistrict District 5 (shown in purple):
(“Duval-only District 5”).
CS/SB 102 also would have amended the severability
provision in section 8.0611, Florida Statutes, to create an
alternative “if a court determines that the district described in s.
8.002(5) is invalid under any provision of federal law, including
the United States Constitution, or the Florida Constitution.”
This alternative would have enacted the following as section
8.0003(5) to redistrict District 5 (shown in purple):
6 The reason this district is the benchmark is explained
below.
58
(“alternative District 5”).
The Governor vetoed CS/SB 102, which would have created a
Duval-only District 5 and the alternative District 5. 7 In a Special
Session, the Legislature then passed SB 2C, which amended
section 8.0002, Florida Statutes. The Governor signed this bill
creating the following as the enacted District 4 (shown in yellow)
and District 5 (shown in purple): 8
7 Before the enacted districts were created, the Governor
sought an advisory opinion from the Florida Supreme Court. See
Art. IV, § 1(c), Fla. Const. The Governor asked whether the
Florida Constitution’s non-diminishment standard required an
East-West district to connect Duval County with Leon and
Gadsden Counties. In this request, the Governor forthrightly
cited Apportionment VIII, 179 So. 3d at 271, in noting that the
Florida Supreme Court “has previously suggested that the
answer is ‘yes.’” The Florida Supreme Court respectfully denied
the request for an advisory opinion. Advisory Op. to the
Governor, 333 So. 3d at 1108.
8 In their pretrial stipulation, the parties agreed that
enacted congressional District 4 “is the district with the highest
percentage of population that comes from Benchmark CD-5.”
59
§ 8.002(4), Fla. Stat. (“the enacted districts or the enacted map”).
Appellees challenged the elimination of benchmark District 5
in the enacted map, claiming in the amended complaint
unconstitutional diminishment of “Black voters’ ability to elect
their candidates of choice.”
Fair Districts Amendments
In 2010, the people of Florida adopted two amendments to
the Florida Constitution known as the Fair Districts
Amendments. See Art. III, §§ 20–21, Fla. Const.; Apportionment
I, 83 So. 3d at 598. Until the adoption of the Fair Districts
Amendments, “Florida’s constitutional requirements guiding the
Legislature during the apportionment process were ‘not more
stringent than the requirements under the United States
Constitution.’” Id. (quoting In re Constitutionality of House Joint
Resol. 1987, 817 So. 2d 819, 824 (Fla. 2002)).
The amendments “adopted identical standards” for
congressional redistricting in section 20 and legislative
redistricting under section 21. Apportionment I, 83 So. 3d at 598
n.1. 9 Section 20, which is at issue here, stated:
9 The majority opinion makes the novel argument that
Apportionment I and In re Senate Joint Resolution of Legislative
Apportionment 2-B (Apportionment II), 89 So. 3d 872, 889–90
(Fla. 2012), are not binding on this court. This argument was not
made by the Appellants. In fact, Appellants repeatedly cited
60
In establishing congressional district boundaries:
(a) No apportionment plan or individual district
shall be drawn with the intent to favor or disfavor a
political party or an incumbent; and districts shall not
be drawn with the intent or result of denying or
abridging the equal opportunity of racial or
language minorities to participate in the political
process or to diminish their ability to elect
representatives of their choice; and districts shall
consist of contiguous territory.
(b) Unless compliance with the standards in this
subsection conflicts with the standards in subsection (a)
or with federal law, districts shall be as nearly equal in
population as is practicable; districts shall be compact;
and districts shall, where feasible, utilize existing
political and geographical boundaries.
(c) The order in which the standards within
subsections (a) and (b) of this section are set forth shall
not be read to establish any priority of one standard
over the other within that subsection.
Apportionment I in their initial briefs. The Legislative parties
stated in part, “the Florida Supreme Court recognized that new
districts may not ‘weaken’ historically performing districts, 83 So.
3d at 625, and that the non-retrogression standard adopted by
Congress, and more recently by Florida, asks whether the
minority population is ‘more, less, or just as able to elect a
preferred candidate of choice after a change as before.’” The
Secretary’s initial brief also recognized the precedential
importance of Apportionment I, stating that it “dealt with an
identically worded constitutional provision for state legislative
districting, see Art. III, § 21, Fla. Const., but the case’s analysis
applies equally to Section 20, see League of Women Voters of Fla.
v. Fla. House of Representatives, 132 So. 3d 135, 139 n.2 (Fla.
2013).” The Florida Supreme Court in both Apportionment VII
and Apportionment VIII, involving the review of trial court
decisions, cited Apportionment I with approval.
61
(emphasis added). The standards in section 20(a) are known as
tier-one standards, while the standards in section 20(b) are
known as tier-two standards. Apportionment I, 83 So. 3d at 615.
The portion of section 20(a) at issue “imposes two
requirements that plainly serve to protect racial and language
minority voters in Florida: prevention of impermissible vote
dilution and prevention of impermissible diminishment of a
minority group’s ability to elect a candidate of its choice.”
Apportionment I, 83 So. 3d at 619. “[B]oth clauses impose a
restrictive imperative, each of which must be satisfied.” Id.
(quoting Advisory Op. to Att’y Gen. re Standards For Establishing
Legis. Dist. Boundaries, 2 So. 3d 175, 189 (Fla. 2009) (plurality
opinion)).
The “equal opportunity” clause in section 20(a) is protection
against dilution. Apportionment I, 83 So. 3d at 619. This clause
“is essentially a restatement of Section 2 of the Voting Rights Act
(VRA), which prohibits redistricting plans that afford minorities
‘less opportunity than other members of the electorate to
participate in the political process.’” Apportionment I, 83 So. 3d
at 619 (quoting 42 U.S.C. § 1973(b) (2006)). “A successful vote
dilution claim under Section 2 requires a showing that a minority
group was denied a majority-minority district that, but for the
purported dilution, could have potentially existed.”
Apportionment I, 83 So. 3d at 622 (emphasis added). A dilution
claim was not alleged at trial and is not before us.
The only requirement of section 20(a) asserted at trial below
and now before us is the non-diminishment clause. This “reflects
the statement codified in Section 5 of the VRA.” Apportionment I,
83 So. 3d at 620. “Florida’s constitutional provision now
embraces the principles enumerated in Sections 2 and 5 of the
VRA. Because Sections 2 and 5 raise federal issues, our
interpretation of Florida’s corresponding provision is guided by
prevailing United States Supreme Court precedent.”
Apportionment I, 83 So. 3d at 620. “Section 5 attempts to
eradicate impermissible retrogression in a minority group’s
62
ability to elect a candidate of choice.” 10 Apportionment I, 83 So.
3d at 620. “[T]he Legislature cannot eliminate majority-minority
districts or weaken other historically performing minority
districts where doing so would actually diminish a minority
group’s ability to elect its preferred candidates.” Id. at 625.
The Florida Supreme Court has described as follows the
analysis governing the determination of whether diminishment
occurred:
[T]he extent to which benchmark and new districts
perform for minority voters—that is, enable those voters
to elect the candidate of their choice—requires a
“functional analysis” of voting behavior within the
districts at issue. Such analysis considers statistical
data pertaining to voting age population; voter-
registration data; voting registration of actual voters;
and election results history.
In re Senate Joint Resol. of Legis. Apportionment 100, 334 So. 3d
1282, 1289 (Fla. 2022) (citing Apportionment I, 83 So. 3d at 625,
627).
A district does not have to be majority-minority to be
protected from diminishment, but districts where Black voters or
other racial minorities make up the majority of the population
are protected. See Apportionment I, 83 So. 3d 625 (citing Texas v.
United States, 831 F. Supp. 2d 244, 265–68 (D.D.C. 2011)). The
Florida Supreme Court stated that, “in addition to majority-
minority districts, coalition or crossover districts that previously
provided minority groups with the ability to elect a preferred
candidate under the benchmark plan must also be recognized.”
Id.
10 Retrogression and diminishment are synonymous in the
context of both Section 5 of the VRA and the Fair Districts
Amendments. See Apportionment I, 83 So. 3d at 619–20.
63
The Parties’ Stipulation and Trial Court Proceedings
The parties narrowed the issues for trial and reached a
pretrial stipulation. They agreed that in the 2016, 2018, and
2020 general elections, “Black voters were politically cohesive in
elections in the district.” They agreed that during those three
elections “voting was racially polarized in the district” and that
the “candidate of choice for Black voters in the district” won each
of the three elections. They also agreed that under the enacted
map the Black voting age population of the district decreased
from 46.2% to 31.7%. Finally, they agreed, “None of the Enacted
districts in North Florida are districts in which Black voters have
the ability to elect their preferred candidates.” 11
11 I respectfully disagree with the majority’s contention that
the ability of Black voters to “elect the candidate of their choice”
is a question of law not controlled by the stipulation of the
parties. The law may supply the meaning of the term, but
whether a new district diminishes the ability of Black voters to
elect a candidate of their choice is based on facts. See Thornburg
v. Gingles, 478 U.S. 30, 41 (1986) (“Based on statistical evidence
presented by expert witnesses, supplemented to some degree by
the testimony of lay witnesses, the [federal district] court found
that all of the challenged districts exhibit severe and persistent
racially polarized voting.”); McMillan v. Escambia Cnty., Fla.,
748 F.2d 1037, 1043 (5th Cir. 1984) (“Defendants contend that
voting in Escambia County is not polarized. This contention is
not supported by the evidence.”); Martinez v. Bush, 234 F. Supp.
2d 1275, 1279–80 (S.D. Fla. 2002) (“We present detailed findings
of fact comparing voting behavior by race in performing black
districts existing before and after the redistricting process at
issue in this litigation.”). The stipulation of the parties
established the facts here and is binding on us. See Troup v.
Bird, 53 So. 2d 717, 721 (Fla. 1951). Additionally, the Appellants
did not make the argument that the stipulation was insufficient
to establish diminishment, so it is not preserved. Citizen of State
v. Clark, 48 Fla. L. Weekly S217, S217, 2023 WL 7400723, *2
(Fla. Nov. 9, 2023) (citations omitted) (“The preservation
requirement also serves the purpose of treating the parties, the
court, and the judicial system fairly.”). Nor was the issue even
raised in the Appellants’ briefs, so it is not a basis to reverse.
64
In the stipulation, the parties disagreed on whether the
diminishment standards in Fair Districts could be applied to the
enacted districts. The Appellants claimed as Question 1 for the
trial court’s determination that the Appellees had to satisfy the
precondition requirement under Thornburg v. Gingles, 478 U.S.
30 (1986), before Appellees could state a diminishment claim.
But the parties agreed that if Gingles did not apply,
diminishment had been proved. 12 The stipulation stated,
Defendants [Appellants] concede that if the non-
diminishment standard applies to North Florida
(Question #1), then there is no Black-performing district
in North Florida under the Enacted Map. The parties
agree that the former congressional district 5 used for
the 2016, 2018, and 2020 congressional elections was a
Black-performing district.
The trial court found that the benchmark district was the
District 5 the Florida Supreme Court approved in 2015; that all
the Gingles preconditions did not apply to a diminishment claim;
that diminishment had occurred in violation of the Florida
Constitution; and that Appellants’ Equal Protection arguments
were unavailing.
Florida Supreme Court Approved the Benchmark District in 2015
The parties disagree about which benchmark district to use
in evaluating the diminishment claim. After redistricting
occurred following the 2010 census much litigation ensued. See,
Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc)
(citing D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla.
2018) (Canady, C.J., dissenting)) (“[I]t is not the role of the
appellate court to act as standby counsel for the parties.”).
12 Appellants also claimed as Questions 2 and 3 that
applying Fair Districts to North Florida congressional
redistricting violates Equal Protection and that the non-
diminishment provision in Fair Districts was facially
unconstitutional. The Equal Protection issue is addressed below.
65
e.g., Apportionment I; Apportionment VII; Apportionment VIII.
Congressional District 5 as well as other congressional and
legislative districts were found to violate the Fair Districts
Amendments. Apportionment VII, 172 So. 3d at 402–06. The
Florida Supreme Court held that District 5 unconstitutionally
favored a political party and had to be redrawn. Id.
There is no requirement in Florida or federal law that a
district must have been created as a remedy for a dilution or
diminishment for the district to be used as a benchmark district
in a later claim of diminishment. Rather, “[r]etrogression, by
definition, requires a comparison of a jurisdiction’s new voting
plan with its existing plan.” Reno v. Bossier Par. Sch. Bd., 520
U.S. 471, 478 (1997) (citing Holder v. Hall, 512 U.S. 874, 883
(1994)). “The permissible use of racial criteria is not confined to
eliminating the effects of past discriminatory districting or
apportionment.” United Jewish Org. of Williamsburgh, Inc. v.
Carey, 430 U.S. 144, 161 (1977).
“A plan leads to impermissible retrogression when, compared
to the plan currently in effect (typically called a ‘benchmark
plan’), the new plan diminishes the number of districts in which
minority groups can ‘elect their preferred candidates of choice’
. . . .” Harris v. Arizona Indep. Redistricting Comm’n, 578 U.S.
253, 260 (2016). For diminishment claims “[t]he baseline for
comparison is present by definition; it is the existing status.
While there may be difficulty in determining whether a proposed
change would cause retrogression, there is little difficulty in
discerning the two voting practices to compare to determine
whether retrogression would occur.” Holder, 512 U.S. at 883–84
(citing 28 CFR § 51.54(c) (1993)); see also Abrams v. Johnson, 521
U.S. 74, 97 (1997) (“There are sound reasons for requiring
benchmarks to be plans that have been in effect; otherwise a
myriad of benchmarks would be proposed in every case, with
attendant confusion.”).
Race was an issue that led to the creation of benchmark
District 5. The previous district had favored a political party by
packing Black voters into one district, reducing their “influence
. . . in surrounding districts.” Apportionment VII, 172 So. at 402.
The Florida Supreme Court was conscious of diminishment in
66
deciding how the new District 5 should be drawn to comply with
the Fair Districts requirements in the Florida Constitution. Id.
at 403–06. “Since the Legislature cannot prove that the North-
South configuration is necessary to avoid diminishing the ability
of black voters to elect a candidate of their choice, we hold that
District 5 must be redrawn in an East-West manner.” Id. at 403.
The Court further stated, “Accordingly, we reject the
Legislature’s argument that an East-West version of the district
would diminish the ability of black voters to elect a candidate of
their choice.” Id. at 405. The Court then concluded “District 5
must be redrawn in an East-West orientation.” Id. at 406.
After further proceedings, the Legislature approved a
redrawn District 5 as complying with the Florida Constitution as
the Florida Supreme Court had directed. Apportionment VIII,
179 So. 3d at 271–73. Again, the Florida Supreme Court
considered the non-diminishment requirement in the Fair
Districts Amendment. Id. at 273. The Court concluded, “Because
the proposed district comports with this Court’s directions in
Apportionment VII and does not diminish the ability of black
voters to elect a candidate of choice, the Legislature has met its
burden to justify the configuration it selected.” Apportionment
VIII, 179 So. 3d at 273. The Court therefore approved
benchmark District 5. Id. at 271. 13
13 The Court discussed the shape of the district in
Apportionment VII in stating, “There is no doubt that an East-
West version of District 5 is visually less ‘unusual’ and ‘bizarre’
than the meandering North-South version enacted by the
Legislature.” 179 So. 3d at 406 (citing Apportionment I, 83 So. 3d
at 634). Various current districts throughout the State have
features much like the benchmark District 5 approved in
Apportionment VIII. See Redistricting.Maps.Arcgis.com,
https://redistricting.maps.arcgis.com/apps/View/index.html?appid
=2c92665fc1d14fc2becb3030e23a4595 (last visited Nov. 17, 2023).
The only difference is that the benchmark District 5 spanned
multiple counties, just like other north Florida districts, because
of the lower population in some of these counties when compared
to the rest of Florida. In discussing the shape of a district when
faced with a diminishment claim the Court stated, “We recognize
that in certain situations, compactness and other redistricting
67
Applying these cases, the benchmark plan — that is the
baseline for comparison in evaluating Appellees’ diminishment
claim — is the benchmark District 5 that the Florida Supreme
Court mandated in Apportionment VII and approved in
Apportionment VIII. Nonetheless, Appellants argue that
benchmark District 5 is an unconstitutional racial gerrymander
and cannot be used as a benchmark district. But a trial court or
district court cannot overrule the Florida Supreme Court. See
Hoffman v. Jones, 280 So. 2d 431, 433–34 (Fla. 1973) (“To allow a
District Court of Appeal to overrule controlling precedent of this
Court would be to create chaos and uncertainty in the judicial
forum. . . .”).
And even if we could revisit what the Florida Supreme Court
decided in Apportionment VIII, that decision is res judicata
between the parties. 14 See In re Senate Joint Resol. of Legis.
Apportionment 2-B (Apportionment II), 89 So. 3d 872, 883–85
(Fla. 2012). “Based on principles of res judicata, a judgment on
the merits will thus bar ‘a subsequent action between the same
parties on the same cause of action.’” Florida Dep’t of Transp. v.
Juliano, 801 So. 2d 101, 105 (Fla. 2001) (quoting Youngblood v.
Taylor, 89 So. 2d 503, 505 (Fla. 1956)).
The League of Women Voters of Florida was a party in
Apportionment VII and Apportionment VIII and is a party among
the Appellees here. The Florida House, Florida Senate, and the
Florida Secretary of State were parties in Apportionment VII and
Apportionment VIII and are the Appellants here. “Importantly,
the doctrine of res judicata not only bars issues that were raised,
criteria, such as those codified in tier two . . . will be compromised
in order to avoid retrogression.” Apportionment I, 83 So. 3d at
626.
14 I do not contend that Appellants could not challenge a
subsequent map drawn after court-ordered redistricting.
Instead, my contention is that the principle of res judicata
requires that the district the Florida Supreme Court approved in
Apportionment VIII is locked in as the benchmark district for this
case involving the same parties.
68
but it also precludes consideration of issues that could have been
raised but were not raised in the first case.” 15 Juliano, 801 So. 2d
at 105 (citing Youngblood, 89 So. 2d at 505); see also
Apportionment II, 89 So. 3d at 884. Appellants could have
claimed racial gerrymandering in opposing District 5 in
Apportionment VII and Apportionment VIII, but they did not.
Apportionment VIII sets the benchmark District 5 to be used in
considering the diminishment claim.
The Majority Opinion Incorrectly Applies
Gingles to a Diminishment Claim
The majority opinion holds that despite the undisputed
evidence of diminishment in the enacted districts, Appellees have
not met their burden of proof because the preconditions from
Gingles were not met. The holding in Gingles has “three
threshold conditions for proving vote dilution under § 2 of the
VRA.” Cooper v. Harris, 581 U.S. 285, 301 (2017) (citing Gingles,
478 U.S. at 50–51). 16 The key Gingles precondition, which was
not met here, is that “a ‘minority group’ must be ‘sufficiently
large and geographically compact to constitute a majority’ in
some reasonably configured legislative district.” Cooper, 581 U.S.
at 301 (quoting Gingles, 478 U.S. at 50).
But Gingles involved Section 2 of the VRA, and its holding
does not apply to diminishment claims. The United States
Supreme Court recognized this important distinction in stating,
“We have, however, ‘consistently understood’ § 2 to ‘combat
15 Although not required for res judicata to apply, in
Apportionment VII the Appellants here, who were the appellees
in that case, raised the issue that “article III, section 20, of the
Florida Constitution is invalid because it violates the United
States Constitution.” Apportionment VII, 172 So. 3d at 372 n.4.
16 If the preconditions are met in a Section 2 dilution claim,
then the plaintiff “must also show, under the ‘totality of
circumstances,’ that the political process is not ‘equally open’ to
minority voters.” Allen v. Milligan. 599 U.S. 1, 19 (2023)
(quoting Gingles, 478 U.S. at 45–46).
69
different evils and, accordingly, to impose very different duties
upon the States.’” Georgia v. Ashcroft, 539 U.S. 461, 478 (2003)
(quoting Bossier Parish Sch. Bd., 520 U.S. at 471, 477). The
Court in Ashcroft recognized that Gingles did not apply to a
diminishment claim:
And the § 2 inquiry differs in significant respects from a
§ 5 inquiry. In contrast to § 5’s retrogression standard,
the “essence” of a § 2 vote dilution claim is that “a
certain electoral law, practice, or structure ... cause[s]
an inequality in the opportunities enjoyed by black and
white voters to elect their preferred representatives.”
Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752,
92 L.Ed.2d 25 (1986); see also id., at 48–50, 106 S.Ct.
2752 (enunciating a three-part test to establish vote
dilution); id., at 85–100, 106 S.Ct. 2752 (O’CONNOR, J.,
concurring in judgment); 42 U.S.C. § 1973(b). Unlike an
inquiry under § 2, a retrogression inquiry under § 5, “by
definition, requires a comparison of a jurisdiction’s new
voting plan with its existing plan.” Bossier Parish I,
supra, at 478, 117 S.Ct. 1491. While some parts of the §
2 analysis may overlap with the § 5 inquiry, the two
sections “differ in structure, purpose, and application.”
Holder v. Hall, 512 U.S. 874, 883, 114 S.Ct. 2581, 129
L.Ed.2d 687 (1994) (plurality opinion).
Ashcroft, 539 U.S. at 478.
Here, we are addressing a benchmark district that already
existed until it, or anything resembling it, was written out of
existence in 2022. In the redistricting context, diminishment
claims are based on a real district that had existed, while dilution
claims are based on a potential district that could exist. Compare
Bossier Parish Sch. Bd., 520 U.S. at 478 (citing Holder, 512 U.S.
at 883) (“Retrogression, by definition, requires a comparison of a
jurisdiction’s new voting plan with its existing plan.”), with
Apportionment I, 83 So. 3d at 622 (“A successful vote dilution
claim under Section 2 requires a showing that a minority group
was denied a majority-minority district that, but for the
purported dilution, could have potentially existed.”)
(emphasis added).
70
A diminishment claim is not based on the number of
minority voters in an enacted district. “Section 5 . . . does not
require a covered jurisdiction to maintain a particular numerical
minority percentage. It requires the jurisdiction to maintain a
minority’s ability to elect a preferred candidate of choice. That is
precisely what the language of the statute says.” Alabama Legis.
Black Caucus v. Alabama, 575 U.S. 254, 275 (2015). The Fair
District Amendment has the same language protecting from
diminishment “racial or language minorities[’] . . . ability to elect
representatives of their choice.” Art. III, § 20(a), Fla. Const.
The best that the majority opinion can argue for the
application of Gingles to diminishment claims is to point to a
footnote from Apportionment VIII that states, “The Gingles
preconditions are relevant not only to a Section 2 vote dilution
analysis, but also to a Section 5 diminishment analysis.”
Apportionment VIII, 179 So. 3d at 286 n.11 (citing Texas, 831 F.
Supp. 2d at 262–63). But the Florida Supreme Court did not
import all of the Gingles preconditions into a diminishment
claim. That footnote pertains to “voting cohesion and polarized
racial bloc voting—the establishment of which is the first step in
any retrogression analysis.” Apportionment VIII, 179 So. 3d at
286.
The Court in Apportionment VIII discussed Gingles and did
not require that the minority population constitute a majority of
the voting age population in the district. Apportionment VIII,
179 So. 3d at 286 n.11. The footnote in Apportionment VIII
discussing the Gingles preconditions was reminding the parties
that the “test for retrogression” includes “whether the minority
group votes cohesively.” Id. This is the same as the second
Gingles precondition, which requires that the “minority group
must be ‘politically cohesive.’” Cooper, 581 U.S. 301–02 (quoting
Gingles, 478 U.S. at 51). Cohesion among Black voters and racial
polarization in benchmark District 5 was part of the parties’
stipulation, was thereby established, was not argued to the
contrary by Appellants, and is uncontested here. 17
17 Therefore, as discussed in footnote 11, any claim that the
Black voters in benchmark District 5 were not cohesive or
polarized in voting, or that there was insufficient proof of Black
71
Never before in Florida or United States Supreme Court
precedent has a proposed majority-minority district been
required before a diminishment claim could be considered. Just
last year, the Florida Supreme Court noted that Gingles applies
to dilution claims and requires a majority-minority district. In re
Senate Joint Resol. of Legis. Apportionment 100, 334 So. 3d at
1288 n.5. But the test for diminishment claims was different and
did not include this requirement from Gingles. In re Senate Joint
Resol. of Legis. Apportionment 100, 334 So. 3d at 1289 (citing
Apportionment I, 83 So. 3d at 625). Rather, diminishment claims
could apply when a redistricting serves to either “eliminate
majority-minority districts or weaken other historically
performing minority districts.” Id. (quoting Apportionment I,
83 So. 3d at 625) (emphasis added). The consideration for
diminishment claims therefore differs from this Gingles
precondition. See In re Senate Joint Resol. of Legis.
Apportionment 100, 334 So. 3d at 1289 (citing Apportionment I,
83 So. 3d at 625).
By applying the Gingles majority-minority precondition from
a dilution claim to a diminishment claim, the majority opinion
has imposed a requirement found nowhere in the Florida
Constitution, in Florida Supreme Court cases, or United States
Supreme Court cases. The majority opinion effectively deletes
the diminishment protections in article III, section 20(a) of the
Florida Constitution, since diminishment can now only be proven
if dilution is present. 18
The Enacted Districts Diminish Minority Participation
The Legislature’s enacted map is initially presumed valid.
Apportionment I, 83 So. 3d at 606, 608. The burden was on
voters being able to elect a candidate of their choice, was
unpreserved below and is waived here.
18 Since article III, section 21(a) on Florida legislative
redistricting has the same language, the majority opinion has
effectively deleted those protections too, unless a challenger can
put forth a dilution claim.
72
Appellees as challengers of the redistricting plan to show a
violation of Fair Districts. The Court in Apportionment VII
discussed the heightened judicial scrutiny to be applied in
considering “the Legislature’s decisions in redistricting.” 172 So.
3d at 398 (citing Fla. House of Representatives v. League of
Women Voters of Fla., 118 So. 3d 198, 205 (Fla. 2013)). But even
without heightened scrutiny, it is clear that the Appellees have
shown that the enacted districts violate the non-diminishment
provision in Fair Districts.
The trial court’s findings of diminishment, which were
consistent with the parties’ stipulation, are therefore supported
by competent, substantial evidence. See Apportionment VIII, 179
So. 3d at 271 (reviewing a trial court’s factual findings for
competent, substantial evidence). A historically performing
benchmark district for Black voters was not just diminished — it
was eliminated. This is not like Abrams, cited in the majority
opinion, where a 10% minority district was reduced to 9%. 521
U.S. at 97. The change here was not de minimis. A politically
cohesive racial minority is now denied the ability to elect a
candidate of choice in a racially polarized district, showing that
unconstitutional diminishment has occurred. The people of
Florida have given us the Fair Districts Amendments, and it is
our “duty” to enforce it. Apportionment I, 83 So. 3d at 607.
The Appellants Did Not Carry Their Burden
to Prove Their Equal Protection Defense
The final issue for our consideration is the Appellants’ Equal
Protection defense. 19 As shown above, Appellees proved a
diminishment claim in the benchmark district. Appellants
contend that Appellees still had the burden to show a remedial
map could be drawn without violating the United States
19 The majority opinion does not decide this issue, but two
concurring opinions would reverse based on either the Equal
Protection Clause of the United States Constitution or the “equal
before the law” provision in article I, section 2 of the Florida
Constitution.
73
Constitution’s Equal Protection Clause. 20 U.S. Const. amend.
XIV, §1. This is incorrect since Appellants raised the Equal
Protection issue as an affirmative defense. 21 The burden of proof
was therefore on Appellants to prove that no district could be
drawn that both complied with Fair Districts and did not violate
Equal Protection. See Custer Med. Cntr. v. United Auto Ins. Co.,
62 So. 3d 1086, 1096 (Fla. 2010) (“The defendant has the burden
of proving an affirmative defense.”); see also Miller v. Johnson,
515 U.S. 900, 916 (1995) (putting the burden on the party
claiming an unconstitutional racial gerrymander to show “that
race was the predominant factor motivating the legislature’s
decision”). Appellants did not carry their burden.
Importantly, the trial court did not order the Legislature to
draw a specific district map and did not impose a map of its own
creation. All the trial court did was enjoin the use of the enacted
district map and returned redistricting to the Legislature “to
enact a remedial map in compliance with Article III, Section 20 of
the Florida Constitution.” “[T]he basic unit of analysis for racial
20 The Legislative parties cite Apportionment II, 89 So. 3d at
889–90, for this proposition. But the subject district in
Apportionment II was being challenged as violating the
compactness tier-two standard. See Art. III, §21(b), Fla. Const.
The Court in Apportionment II held the alternative plans the
challengers provided did not meet their burden of proof because
the alternative plans would have “raise[d] concerns” about non-
diminishment. 89 So. 3d at 889; see also Art. III, § 21(b), Fla.
Const. (establishing compactness as a tier-two standard to be
followed “[u]nless compliance with the” tier-two standards
“conflicts with the standards in subsection (a) or with federal
law”). Likewise, Appellants’ reliance on Apportionment I was
misplaced because that also involved tier-two standards that had
to yield to tier-one standards. 83 So. 3d at 653.
21 I agree with the Appellants that the public official
standing doctrine does not apply in this case, so they could raise
affirmative defenses. Still, the trial court analyzed the
Appellants’ arguments on the merits, so the erroneous
application of the doctrine does not provide a basis to reverse.
74
gerrymandering claims in general, and for the racial
predominance inquiry in particular, is the district.” Bethune-Hill
v. Virginia State Bd. of Elections, 580 U.S. 178, 191 (2017); see
also Alabama Legis. Black Caucus, 575 U.S. at 262–63. Since the
trial court’s order is stayed pending all appellate review, the
Legislature has yet to draw a new, compliant district. Without a
district for the courts to evaluate, there can be no finding of racial
discrimination.
Race can be considered in redistricting so long as race does
not predominate. Allen v. Milligan. 599 U.S. 1, 30 (2023); Miller,
515 U.S. at 915–16; see also Brown v. Sec’y of State of Fla., 668
F.3d 1271, 1283 (11th Cir. 2012) (“[I]t must surely be appropriate
for a state legislature to take into account the effect that its new
districts will have on racial and language minorities.”). 22 The
Governor correctly recognized this when, in seeking an advisory
opinion on how to draw the district, he stated, “I ask for your
opinion to help me be sufficiently conscious of race to comply with
the Florida Constitution’s anti-diminishment provision but avoid
being so conscious of race that my actions could violate the U.S.
and Florida Constitutions.”
If race could not be considered at all, there never could be a
dilution or a diminishment claim. See Robinson v. Ardoin, 22-
30333, 2023 WL 7711063, at *10 (5th Cir. Nov. 10, 2023)
(“Refusing to allow redistricting maps based on race in any
respect, though, would require Gingles to be overruled.”).
However, the United States Supreme Court in Allen recently
allowed race conscious redistricting arising out of a dilution
claim. 599 U.S. at 30–31.
22 “A longstanding general history of official discrimination
against minorities has influenced Florida’s electoral process.”
DeGrandy v. Wetherell, 794 F. Supp. 1076, 1079 (N.D. Fla. 1992).
The Fair Districts Amendments “are not designed to compel
electoral outcomes but rather, by their very terms, merely to level
the playing field by ensuring equality among all voters and by
increasing opportunities for all candidates.” Brown, 668 F.3d at
1281.
75
Unconstitutional racial gerrymandering can occur if race
predominates the considerations in redistricting. Id. But Fair
Districts provides two other tier-one factors that are as important
as the protections against dilution or diminishment — the
district cannot be “drawn with the intent to favor or disfavor a
political party or incumbent. . . and districts shall consist of
contiguous territory.” Art. III, § 20(a), Fla. Const. These tier-one
factors are entitled to equal consideration. Art. III, § 20(c), Fla.
Const. And the tier-two factors that “districts shall be nearly
equal in population as practicable; districts shall be compact; and
districts shall, where feasible, utilize existing political and
geographical boundaries” are to be applied if possible, also
showing that race does not have to be predominant in complying
with Fair Districts. Art. III, § 20(b), Fla. Const. “Instead, an
express racial target is just one consideration in a traditional
redistricting analysis” when considering a claim of
unconstitutional racial gerrymandering. Robinson, 22-30333,
2023 WL 7711063, at *10 (citing Allen, 599 U.S. at 32).
To the extent that Appellants could argue, despite the
application of res judicata to the issue, that the benchmark
District 5 that the Florida Supreme Court approved in
Apportionment VIII was itself an unconstitutional racial
gerrymander, it should be remembered that District 5 was
created to remedy a political gerrymander. Apportionment VII,
172 So. 3d at 402–06. Race and non-diminishment of Black
voters were permissible considerations in redistricting leading to
the establishment of benchmark District 5, but race did not
predominate over the other Fair Districts requirements
thoroughly considered by the Court. Id.
Finally, even if the burden were shifted and Appellees had to
show a map that could be created without violating equal
protection, Appellees did so with both the Duval-only District 5
and the alternative District 5 that the Legislature approved but
was then vetoed. The trial court found that Duval-only District 5
“is extremely compact,” and “it complies with basic traditional
redistricting criteria such as equal population, contiguity, or
adherence to political and geographic boundaries.” The trial
court’s order also carefully analyzed the alternative District 5
76
and found that the alternative district “performs reasonably well
on objective, non-racial traditional redistricting criteria.” 23
Two concurring opinions would have the courts ignore race
in considering diminishment of racial minority voting strength
stemming from redistricting. The dissent in Allen raised these
same concerns in considering dilution claims. 599 U.S. at 45–46.
But we cannot overrule Allen and the many other cases that
allowed race to be considered in redistricting so long as race did
not predominate. See Miller, 515 U.S. at 916; Bush v. Vera, 517
U.S. 952, 958 (1996) (plurality opinion) (“Strict scrutiny does not
apply merely because redistricting is performed with
consciousness of race.”); Shaw v. Reno, 509 U.S. 630, 646 (1993)
(“[R]ace consciousness does not lead inevitably to impermissible
race discrimination.”). Ignoring race would go against what the
people of Florida have required of us in approving the Fair
Districts Amendments. Since no racially discriminatory district
has been drawn and since there are districts that do not violate
Equal Protection that could replace the enacted, unconstitutional
districts, Appellants’ Equal Protection defense must fail.
Conclusion
For the above reasons, I would have certified this appeal for
immediate resolution by the Florida Supreme Court. Barring
that, I would affirm because Appellees have proven
unconstitutional diminishment in the benchmark district, and
Appellants’ Equal Protection Clause defenses are unavailing.
Because the en banc majority incorrectly reverses the well-
reasoned decision of the trial court, I respectfully dissent.
23 The Duval-only District 5 might result in greater
diminishment than the alternative District 5. But if Equal
Protection is a “tier-zero” consideration, as Appellants argue, that
prevents the drawing of an East-West district, then the Duval-
only District 5 at least complies somewhat with the non-
diminishment protection in Fair Districts while avoiding any
possible claim of an Equal Protection violation.
77
_____________________________
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.
78