Bill Cotterell: Redistricting case matters far beyond Florida

Legally and politically, the stakes in Florida’s congressional redistricting litigation couldn’t be higher for the state or the nation.

So far, the state is losing in its defense of the remapping plan Gov. Ron DeSantis demanded and won from a compliant Republican-run Legislature. Circuit Judge J. Lee Marsh in Tallahassee threw out the revised congressional districts, but his ruling is being appealed.

Related coverage – 

• Quick resolution sought in Florida congressional redistricting dispute
• Judge rules Florida congressional redistricting plan is unconstitutional
• Redistricting plan sparks constitutional standoff

You can never predict what courts will do, but DeSantis appointed most of the Florida Supreme Court’s justices. Like the governor himself, they come from the conservative Federalist Society, so it would be startling to see them smack down a GOP-engineered political plan.

From a strictly forensic viewpoint, the dispute is a conflict between the State Constitution – specifically, its “Fair Districts Florida” provisions – and the U.S. Constitution’s 14th Amendment. 

The state provisions, adopted by about 63% of the voters after a petition campaign put them on the ballot, command state legislators to draw legislative and congressional districts that don’t favor or penalize any political party or demographic group.

DeSantis contends that the state, therefore, must not discriminate for or against any bloc of voters. He cites the Equal Protection Clause of the post-Civil War 14th Amendment.

So does the Florida Constitution’s requirement of fair districting mean legislators can’t consider race? Or does the federal Constitution, coupled with the 1965 Voting Rights Act and various court precedents, mean they have to?

Although Marsh – a Rick Scott appointee – ruled against the state, DeSantis and Republican legislative leaders can seek solace in a 2013 U.S. Supreme Court ruling that stifled an important section of the Voting Rights Act. And that was done before President Trump added three conservative justices, to give the nation’s highest court a solid 6-3 tilt to the right.

The DeSantis-approved congressional map resulted in two north Florida members running against each other. Black Democrat Al Lawson of Tallahassee, who had been elected in a district that ran along the Georgia border from Chattahoochee to Jacksonville, was defeated by Republican Neal Dunn of Panama City in the current tract.

That election provided tangible proof of what everybody already knew: Black voters don’t have a real chance to elect the candidates of their choice, unless districts are configured to produce an intended result. White governors and legislators of both parties have, for decades, crafted districts that perform for their favored candidates – often themselves – so why isn’t it fair to recognize reality and give some advantage to a demographic group that has been historically shut out?

Eventually, the DeSantis-selected Florida Supreme Court, and eventually the nine ultimate arbiters in Washington, will resolve that legal quandary. If the past is any indication, they’ll pose a couple dozen more puzzles that will mean full employment for lawyers and political consultants for a few election cycles.

“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,” Marsh wrote in his circuit court ruling.

The Florida redistricting suit coincides with an Alabama congressional dispute over minority-access districts. The Heart of Dixie legislators drew a map with only one such district and the feds told them to devise a second one, which they failed to do. An appellate panel recently told the state it would name a special master to draw congressional lines, since Alabama won’t comply.

It will be quite a gamble if two different cases, with the same gravamen, go to the Supreme Court from Montgomery and Tallahassee. The result of such appeals could restore the Voting Rights Act – or strip away what’s left of it.

That’s the legal angle. Politically, the redistricting cases are equally important.

Republicans have a tiny, tenuous majority in the U.S. House. Black voters don’t always elect Democrats but restoring something like Lawson’s district in North Florida, and requiring a second minority-access congressional tract in Alabama, would be a big factor in a Democratic comeback in Washington.