Ron DeSantis takes on racial gerrymandering.
Ron DeSantis takes on racial gerrymandering.
F lorida currently faces a rarity: a showdown between Governor Ron DeSantis and the Republican-controlled legislature, which typically follows the governor’s lead. At stake is the state’s congressional map, which has to expand by one district to accommodate the Sunshine State’s booming population. The main point of contention is whether to keep a long, narrow, lizard-shaped district along the state’s northern border. That district exists only for racial purposes: to unite distant African-American communities stretching from Tallahassee in the west to Jacksonville in the east. DeSantis wants to end the racial gerrymander, and he threatens to veto any map that includes it.
The lizard-shaped district is currently Florida’s fifth congressional district, and now Florida’s third district on the Florida house’s maps. It crosses eight counties over 200 miles, narrows to three miles wide at one point, and forms a spur around Jacksonville. The two counties at opposite ends of the state contain 82.77 percent of the district’s voters; the voters from the other six counties are, for all practical purposes, just a road to connect the two. As currently drawn, it isn’t a majority-black district, and the new version wouldn’t be either, but proponents argue that it would have enough black voters to offer an “opportunity” for an effective voting majority, in part because Democrats would be a majority in the district, and black voters would be a majority of the district’s Democrats. It is currently represented by Al Lawson, a Democrat and member of the Congressional Black Caucus.
This is the only district on either Florida map that is anywhere near this bizarrely misshapen. Nobody disputes that the requirement that districts be compactly drawn would make this district illegal if it is not required for racial reasons.
Here is the current map, which was drawn by the Florida Supreme Court in 2015 and created Florida’s fifth district:
The Florida senate’s map (denoted as map S000C8040), which has already passed the senate, includes a revised, narrower version of Florida’s fifth district:
The map currently being debated in the Florida house (map H000C8011) designates the lizard as Florida’s third district, and narrows its neck even further than the Florida senate’s version:
The map proposed by DeSantis (map P000C0094) takes a dramatically different approach to the Jacksonville–Tallahassee corridor:
The dispute between DeSantis and the legislature is more about law than politics, and it is publicly being argued almost entirely in legal terms. There are a few reasons for that. First, the governor and the majority in the legislature have the same basic incentive: to draw as many Republican districts as possible. Second, neither the governor nor the legislature can admit out loud that they are motivated by partisanship, because a 2010 ballot initiative added to the Florida constitution a ban on district maps drawn “with the intent to favor or disfavor a political party or an incumbent.” That ban doesn’t require that the final product be fair; it focuses entirely on intent. So, the parties can play all the hardball they want; they just can’t admit it.
The legislature’s map favors Republicans; so does the governor’s, but slightly more. On the other hand, because Florida’s constitution requires compact districts, both sides’ maps have far more natural district lines than what Democrats are doing in places such as New York or Illinois or California. There is nothing on the DeSantis map that looks remotely like the new third districts in Illinois or Maryland:
The difference between DeSantis and the legislature, in a nutshell: After a litigation marathon in the past decade, the legislature is wary of another losing battle in the courts. DeSantis, by contrast, is willing to stand up to a racial gerrymander even if it requires taking aggressive legal positions that will require the courts to wade into some uncharted territory or potentially revisit questionable assumptions. And he has his own arguments for why the racial gerrymander should and may lose in court. With a 7–0 Republican-appointed majority on the Florida Supreme Court (three of them DeSantis appointees) and a conservative majority on the U.S. Supreme Court, DeSantis is betting that the time is ripe to take a harder line against racial discrimination in district lines.
To understand this disagreement, it is necessary to understand the legal landscape, which includes the federal Constitution, the federal Voting Rights Act, and the rules contained in Article III, Section 20, of Florida’s constitution.
Step One: Since 1993, the Supreme Court has held that, under the Equal Protection Clause and the 15th Amendment to the Constitution, states are prohibited from using race as “the predominant factor” in drawing district lines, unless the state can show a compelling state interest and that its reasons for doing so are narrowly tailored to pursue that compelling state interest. This is the “strict scrutiny” test, and outside of redistricting litigation, states are almost never able to meet it.
The Supreme Court last waded deeply into these issues in a trio of cases decided before Brett Kavanaugh and Amy Coney Barrett joined the Court: Cooper v. Harris (2017), Bethune-Hill v. Virginia State Board of Elections (2017), and Abbott v. Perez (2018). Cooper struck down racial gerrymanders designed to create majority-minority House districts in North Carolina. Bethune-Hill upheld a majority-minority state legislative district in Virginia, finding that intentional racial line-drawing satisfied the strict-scrutiny standard. Abbott struck down a Texas state house district that was racially gerrymandered, but upheld other such districts. Unless and until the Court changes course, states are running an uncertain risk of having their maps thrown out if they draw racially gerrymandered maps.
The Court is currently considering Merrill v. Milligan, a case involving a lawsuit to force Alabama to create a second black-dominated district. While the issues in Merrill are somewhat different — the state is defending its existing map rather than trying to change it — the Court has framed the question presented in Merrill to include a broad review of what the Voting Rights Act requires in Alabama. What Merrill has in common with the Florida fight is that the plaintiffs in that case are, similarly, trying to build a racially gerrymandered district of a sufficiently bizarre shape that nobody would ever draw it without race in mind. Merrill should be decided before the Florida maps get to court, but likely after DeSantis and the legislature have settled on a final map.
Step Two: How do racial gerrymanders survive strict scrutiny? The Supreme Court has assumed (without ever quite saying so) that (1) the Voting Rights Act sometimes requires drawing racial gerrymanders, and therefore (2) states have a compelling interest in complying with a federal law that is itself an exercise of Congress’s power to enforce the 14th and 15th Amendments. A state doesn’t have to prove that its racial gerrymander was literally required by the VRA, only that the state had “good reasons” or a “strong basis” to believe that it needed to discriminate on the basis of race in drawing district lines in order to create a VRA district. The state then must meet the “narrow tailoring” requirement — i.e., it must show that the actual district doesn’t go too far in packing disparate voters into a district just because they are black. States are more commonly faulted for excessive packing than for the creation of such districts in the first place.
Step Three: In addition to federal law, there is the Florida rule:
(1) 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 . . .
(2) Unless compliance with the standards in this subsection conflicts with the standards in subsection (1) or with federal law, districts . . . shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.
Again: The requirements of compactness and following existing boundaries are flagrantly violated by the lizard-shaped district. Nobody really disputes this. But the Florida rule incorporates language similar to Sections 2 and 5 of the Voting Rights Act and gives those rules preference over compactness. Here is where things get sticky.
The prohibition on districts that “diminish [racial minorities’] ability to elect representatives of their choice” is a state analogue to Section 5 of the VRA. Section 5 was written to apply only to states that were required to “preclear” changes to their voting rules or districts before implementing them. Covered jurisdictions had to show that they were not “retrogressing” — a rule that the courts read to mean, among other things, that states could not reduce the number of majority-minority districts (or minority “opportunity” districts). Proponents have argued this as a version of the Brezhnev Doctrine: Once a VRA district exists, it is VRA territory forever.
But Section 5 no longer applies at the federal level after the Supreme Court in Shelby County v. Holder (2013) threw out the formula for which jurisdictions are covered, finding that Congress had failed to show evidence that these jurisdictions merited preclearance. Congress did not pass a new formula. As a result, the retrogression principle may still surface as a factor in VRA Section 2 cases, but it is no longer binding federal law. The Supreme Court’s Brnovich decision last spring, for example, required a holistic look at a state’s voting practices in Section 2 cases rather than tying states narrowly into a one-way ratchet on every single aspect of their voting laws.
Florida’s “little Section 5” prompts the question: If complying with Section 5 of the VRA is a compelling state interest that justifies racial discrimination, is complying with a state version of Section 5 also enough to justify racial discrimination? DeSantis’s general counsel, Ryan Newman, recently submitted to the legislature an analysis arguing that it is not:
The U.S. Supreme Court has never held that compliance with a state non-diminishment requirement is a compelling interest sufficient to withstand strict scrutiny under the Fourteenth Amendment’s Equal Protection Clause. That is especially so where the state race-based requirement lacks a strong basis in evidence. To the extent that Article III, Section 20(a)’s non-diminishment provision parallels Section 5 of the VRA . . . Congress compiled in 1965 an extensive record of racial discrimination in state electoral processes to justify Section 4 and 5’s “strong medicine” and “extraordinary measures to address an extraordinary problem.” [quoting Shelby County]. When Florida voters approved Article III, Section 20(a), by contrast, they did not have before them a similar record of pervasive, flagrant, widespread, or rampant discrimination.
This is an unsettled legal question. If DeSantis is right, the federal ban on race discrimination trumps the Florida rule.
DeSantis raises a second legal issue: The district does not actually have a black majority, and it only even approaches one by cobbling together people who do not form any sort of compact or contiguous community. In his view, Section 2 of the VRA does not require a VRA district here because, under Cooper v. Harris, there is only a need for one where a minority group is “sufficiently large and geographically compact to constitute a majority in some reasonably configured legislative district.”
Following that line of reasoning, DeSantis argues, the state-law non-diminishment provision does not even apply because the “their” in “their ability to elect representatives of their choice” likewise refers to racial or language minorities who could be drawn into districts that at least vaguely resemble the districts drawn under the rest of the Florida rule: contiguous, compact districts that attempt to use existing political and geographical boundaries. That alternative state-law argument is an aggressive one, given that the little Section 5 rule is given a higher priority in the text. Moreover, DeSantis is swimming against precedent: The district exists only because the Florida Supreme Court in 2015 drew it in a previous case.
That said, the court created the district (promoted by partisan Democratic operatives) only after striking down an even more preposterous district connecting Jacksonville to Orlando, so its analysis of the compactness of the district and its black population was comparative. The court acknowledged at the time that the lizard shape was not a “model of compactness.” A key component of the compactness analysis in 2015 was that “as many as seven other districts can be drawn in a more compact manner” by drawing the district to Tallahassee rather than Orlando. DeSantis, however, proposes a much more compact map overall by eliminating the lizard shape altogether. He can reasonably argue that a district drawn by a court as a remedy for an even worse map should not be cast in stone forever by the non-retrogression principle when a more compact map overall can be drawn that adheres more closely to existing communities.
DeSantis’s stronger argument, however, is that perpetuating the lizard-shaped district for explicit racial reasons violates federal law by discriminating on the basis of race. If he can persuade the legislature of that, the inevitable ensuing litigation will be a significant test case for racial gerrymanders.